Assessing the Vetos, Part 2
Wed June 20, 2007 11:08 am

This is a continuation of the previous post, "Assessing the Vetoes," discussing the merits of Governor Perry's veto. The link to the Web site for the list of vetoed bills and Perry's veto messages appears in Part 1.

HB 2006 -- Woolley/Janek. This was an eminent domain bill that was intended to help landowners assert their property rights in condemnation proceedings. It was vetoed due to an amendment by Glenn Hegar, which allowed landowners to receive additional compensation for diminished access to the roadway and for changes in the visibility of the property from the road. These provision have long been sought by condemnation lawyers. The key part of the veto message reads, "Virtually every major city, county and high-growth area of the state asked me to veto this legislation because of the prohibitively high costs for future road construction and safety improvements and new schools that would be caused by these amendments." This time Perry can't be blamed for not contacting the legislative authors. He says in his veto message, "With plenty of time left in the legislative session, I asked the bill author in the House of Representatives and the bill sponsor in the Senate to work with my office to address these concerns and find a compromise." Janek agreed; Woolley did not.

HB 2087 -- Hill/Wentworth. The bill allowed a city, county, or junior college district to refuse to accept a petition to hold an election to limit property taxes on the homesteads of the elderly and disabled if the proposition had been put to a vote twice in any 36-month period. Article VIII, Section 1 of the Texas Constitution requires these local entities to hold an election if 5 percent of registered voters petition for it. You can't amend the Constitution by passing a statute that provides an exception to the constitutional language. Perry's veto was correct.

HB 2103 -- Kolkhorst/Ogden. The bill established a pilot program for student loan repayment assistance for correctional officers who take junior- and senior-level courses at Sam Houston State University. Perry objected because (1) the bill was limited to one specified university (Isn't that why it's just a pilot program?), and (2) because there are a number of financial aid programs and this would add one more. This all sounds pretty lame to me. Maybe this was payback for Kolkhorst's and Ogden's opposition to the Trans-Texas Corridor.

HB 2265 -- Haggerty/Averitt. The bill authorizes "progressive bingo" jackpots that can grow to several times the currently allowed level ($2,500, compared to the current maximum of $750). "This is not in keeping with the nature of charitable bingo" Perry's veto message reads, "and threatens to cost the charities more in prize payouts than they will gain in revenue from players." It's a scandal how bingo operators make more from the games than the charities. I agree with Perry that "Progressive bingo represents an expansion of gambling beyond anything contemplated when Texas allowed neighborhood charitable bingo halls." Can't we just legalize casino gambling and be done with this penny-ante stuff?

HB 2622 -- Ortiz/Hinojosa. The bill allowed the Corpus Christi Regional Transit Authority to provide its board members with life and health insurance perks. This caused something of a flap locally, and Ortiz asked Perry to veto the bill. The governor obliged.

HB 2646 -- Rose/Watson. The state's Educator Excellence Awards Program rewards teachers who improve student performance. The bill allows these funds to be spent on providing stipends to teachers who have obtained certification through the National Board for Professional Teaching Standards. Perry vetoed the bill because it is "vendor-specific" and would give NBPTS "a distinct advantage over competing certification programs" such as the American Board for Certification of Teacher Excellence, which Perry singled out. However, the two organizations have very different missions. NBPTS seeks to enhance the performance of current teachers; ABTE primarily offers alternative certification to aspiring teachers who do not have a degree in education, although it does have a pilot program for enhancing teacher performance. Many Texas school districts participate in the NBPTS program and provide stipends to their teachers to go through the program, which takes around 300 to 800 hours and costs $2,565. NBPTS is the older and more established organization and is active in Texas. ABTE is not currently available here. I don't see what the harm would have been in signing the bill. Other programs could be added after they become available in Texas.

HB 2713 -- Bonnen/Averitt. The bill created an interim committee to study the state's demand for electricity for the next fifty years. Perry vetoed the bill on two grounds: (1) the Legislature doesn't need statutory authority to conduct a study; and (2) the study would be duplicative because TCEQ already reviews existing generation facilities to ensure they meet the environmental quality standards set forth in state law. Oh, great. TCEQ will protect us. Hello, more rubber-stamped coal plants. If we have to depend upon TCEQ to protect the public, it's a good thing we've decided to bond cancer research. All of Perry's reasons boil down to this: "Dennis Bonnen carried the bill to overturn my HPV executive order, and he ain't gettin' no interim committee on my watch."

HB 2990 -- Madden/Seliger. The bill directs TDCJ to include an electronic monitoring and tracking system to monitor the physical location and safety of inmates, employees, third-party vendors, and visitors in any correctional facility designed and built after September 1, 2007. Perry's veto message said, "While I believe that an electronic monitoring and tracking system has merit, I do not believe it should be required by law, especially when funds were not specifically appropriated as part of the bond funds that the TDCJ may be able to utilize for prison construction, if approved by the voters." The long and short of this is that the governor's office doesn't want any cost, however small ($4 million in the case of an electronic monitoring system), to stand in the way of building new prisons.

HB 3084 -- Phillips/Deuell. Current law requires local voters to reauthorize the street maintenance sales tax (which I confess I didn't know we had) every four years. Perry objected to the bill because it "would overturn this important taxpayer protection by allowing the tax to remain in effect until the municipality requests a public vote, or five percent of registered voters petition for an election .... The burden of justifying whether a tax should exist should fall on government, not the governed." Perry is correct that this bill effectively makes the tax permanent. I agree with reasons for the veto.

HB 3200 -- Madden/Whitmire. This is one of the worst of Perry's vetoes. I can do no better than republish the criticism of the veto from the gritsforbreakfast criminal justice blog. The "I" who is speaking is the blog's creator, Scott Henson:

Senseless: Governor Vetoes Probation Funding Fix

Of all the probation bills that passed this session, I can't believe Governor 39% chose to veto HB 3200 by Madden ..., which would have revamped probation funding formulas to accomodate new diversion regimens and to give offenders incentive to earn their way off supervision through good behavior.

I found the veto message on the bill utterly disingenuous:

House Bill No. 3200 would revise the funding formula that the Texas Department of Criminal Justice uses to fund community supervision and correction (probation) departments. This bill is problematic because the revised funding formula provides penalties for each felony defendant whose community supervision is revoked due to a "technical violation." Yet, there is no statutory definition of what constitutes a "technical violation." Just as important, there is no guidance in the bill as to how much of a funding penalty should be applied for these technical violations. Thus, we risk creating a system that has perverse financial incentives which undermine the purpose of probation itself.

I encourage both the Legislature and the Board of Criminal Justice to continue looking at ways we can improve the probation funding formula.

[continuing with gritsforbreakfast] Offhand I have two main criticisms of the Governor's logic: First, what constitutes a technical revocation isn't named in statute but is well established in practice, because Second, those definitions do exist, only by RULE instead of by statute. Ditto for the "funding penalty" described - those details were rightly delegated to agency rulemaking, which is both appropriate and common practice, but the Governor's veto message pretends the bill would create some functional problem because it lacked that definition. It didn't.

I'll bet local probation department directors will be grumpy - this veto potentially creates a management nightmare for them. As a Grits commenter noted, the Governor has chosen to: "let most of the new probation laws go into effect but he has vetoed the all-important funding revision that went along with them. That means that the CSCDs will be losing many probationers to 'early release' without providing anything to make up for the funding they will lose as a result of those releases. Expect cutbacks in existing and valuable CSCD programs to offset those losses."

Sadly, I think that prediction quite likely to come true. What was the Governor thinking? This insensible veto creates headaches for local probation departments and judges and undermines other reform legislation aimed at reducing probation revocations to prison. For the second session in a row the Governor's vetoes put probation departments in a bind, in this case creating incentives for early release without altering the funding formula to make sure it doesn't bankrupt the system.

There's no ideological rhyme or reason for this decision. It's not a liberal or conservative thing to do. It's just mismanagement, plain and simple.

* * * * *

Subquent to adopting grits' analysis, I received a comment from Shannon Edmonds of the District and County Attorneys Association. I am going to post his comment here, with my response. Mr. Edmonds recently posted a second comment, an excellent big-picture view of the role of the Legislature in criminal justice issues, which can be accessed following the discussion of the veto of HB 3352, the last bill discussed in this series.

stedmonds said...
Paul, say the governor had vetoed a bill that proposed to change the public school funding system by granting more money to high schools that gave diplomas to kids upon completion of the 10th grade and took money away from high schools that did not graduate kids early or held back students who were not academically proficient enough to graduate. How do you think local schools would react to those kinds of incentives? Wouldn't you have applauded the veto of such an Alice-in-Wonderland approach to education?

Well, that's essentially what HB 3200 did for the probation system. It created no new programs. It added no new money to the system. Instead, it granted probation departments more money for releasing probationers early (regardless of merit, including whether they complied with their terms of release), and took money away from probation departments that tried to protect public safety by revoking probationers for failing rehab, absconding, refusing to attend sex offender treatment, harassing victims, or committing other violations of probation.

Probation has two main purposes: to rehabilitate offenders and to protect local communities in which those offenders live. Focusing on the former to the exclusion of the latter turns criminal justice policy on its head and places wishful thinking ahead of public safety. That's why HB 3200 was vetoed.

p.s. - cutting and pasting a random blogger's belief that "there's no ideological rhyme or reason for this decision" is a poor substitute for studying the issue and opining on it in a thoughtful way!

Paul Burka said...
To readers (re post by stedmonds)--

I presume that the comment came from Shannon Edmonds with the County and District Attorneys association, and we now know whose opposition caused the bill to be vetoed.

The larger context of the bill is that technical violations of probation and parole take up so many prison beds that Texas faces the need to build new prisons. Currently TDCJ institutions have 24,000 inmates whose probations have been revoked, 52% of whom have committed technical violations (such as missing a meeting). The probation reforms of the 80th Legislature represented an attempt to save taxpayers money by reducing the number of technical probation violators who are returned to prison, thus mitigating the need to build new prisons. As I have written previously, building new prisons is extremely expensive, not only because of the extra construction cost required for maximum security institutions, but also because TDCJ has to pay for prison personnel 24 hours a day. The public policy question is, Do we want to fill prison beds with probationers who have violated conditions of their probation in insignificant ways, such as by missing a meeting with their probation officer, and build expensive new prisons for violent offenders, or do we want to keep probationers in their communities and fill the spaces they have been occupying with violent offenders, thereby alleviating the need for new prisons? The same question can be asked about nonviolent parolees who have committed drug and property crimes.

Mr. Edmonds and his organization represent a legitimate point of view, which he states in his comment:

"Probation has two main purposes: to rehabilitate offenders and to protect local communities in which those offenders live. Focusing on the former to the exclusion of the latter turns criminal justice policy on its head and places wishful thinking ahead of public safety. That's why HB 3200 was vetoed."

It is the job of prosecutors to put public safety first. The Legislature's responsibility is much more complicated than the equation of public safety versus rehabilitation that Mr. Edmonds presents. The Legislature must be concerned not only with public safety but also with taxpayers who provide the state with revenue and with public agencies that are dependent upon tax revenue. If TDCJ is building new prisons, then those tax dollars are not going to public schools or to health care or to highway construction. The debate over HB 3200 has to be seen in that context.

The problem concerning probation that House Bill 3200 tried to address is that study after study shows that most probation revocations occur in the first two years. A small percentage occurs in the last five years. (Texas's probation period is much longer than the national average, as you might expect.) What HB 3200 did was to reallocate the money for probation supervision so that probation departments receive more of the total funding for each probationer in the first five years, when supervision is most important, and less in the last five years, when it is less crucial. The expectation is that closer supervision, especially in the first two years, will result in fewer probation revocations.

Mr. Edmonds is correct that the bill rewards probation departments for early release of probationers. It is my understanding, however, that the bill holds harmless probation departments that have more restrictive policies. They cannot receive less than they received in the previous fiscal year.

It is likewise my understanding that the decision of a local probation department to release a probationer is merely a recommendation. It is up to the judge to determine whether to release a prisoner or not.

In Mr. Edmonds' school metaphor, HB 3200 changes the public school funding system by granting more money to high schools that gave diplomas to kids upon completion of the 10th grade and taking money away from high schools that did not graduate kids early or held back students who were not academically proficient enough to graduate. However, to carry through with the metaphor, the school district can always overrule the school and refuse to grant the diploma, and no school district will get less money for refusing to graduate kids early because of a hold-harmless provision.

I want to thank Mr. Edmonds for contributing his thoughts to this discussion.

HB 3281 -- King/Duncan. This is a revised posting. I received a phone call from former representative Joe Nixon, author of the omnibus tort reform bill in 2003, saying that my original post was incorrect. The bill deals with a common situation--medical expenses that are paid or incurred by an injured party-- that arises in tort litigation and has been the subject of controversy since the 2003 tort reforms became law. The example Perry gave in his veto message was: A person with insurance is injured through the negligence of another and incurs $20,000 worth of medical bills. Hospitals typically overbill, so the insurance company has an agreement with the hospital to discount the total bill by 40%, to $12,000. Who gets the benefit of the other $8,000? Nixon's argument to me is that the insured plaintiff deserves only to be made whole and should receive only $12,000. It is hard to argue with that reasoning. The counter-argument is that the negligent defendant, and his insurance company, do not deserve to benefit by having their exposure reduced by $8,000. Perry said in his veto message this "would permit an individual in a personal injury lawsuit ... to recover more money for medical expenses than actually was or will be paid." However, the result achieved by his veto creates the perverse incentive that our hypothetical injured person without insurance would receive the entire $20,000, while a similar person with insurance would receive $12,000. You may find this discussion scintillating, or you may find it arcane, but it has little to do with why the bill had so much support. It passed because lawyers in the Legislature can take cases if the plaintiff gets the full amount of his medical bills, but can't afford to take the cases at the discounted amount. Insurance companies led the charge to get the bill vetoed, and it is hardly a surprise that Perry stood firm by his tort reforms of 2003.

HB 3352 -- Woolley/Whitmire. If I were the presiding officer in one of the chambers, I would create the Coin Flipping Committee for bills like this. It would require automatic payroll deduction for the police employee group--a euphemism for "union"--that has been recognized as the sole and exclusive bargaining agent under the "meet and confer" process authorized in a municipality with a population of 1.5 million or more (Houston). Other police employee groups can have an automatic deduction only if the mayor goes along. All interested parties would gather in the Coin Flipping Committee room for governor to determine the bill's fate. Heads, he signs it. Tails, he vetoes it. And we wouldn't have to deal with these lousy bills any more.

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