Now What?

January 2001By Comments

Illustration by John Green

So you think the presidential election in Florida lasted a long time? Try Texas. We’ve been living with it not for weeks, not for months, but for years. Here the campaign began two years ago with the 1999 legislative session and Governor George W. Bush’s program that was tailored to win him the Republican nomination. And here, long after the next president of the United States is inaugurated, the campaign and its aftershocks will go on and on.

Texas, after all, was a conspicuous issue in the presidential race. Al Gore attacked Bush’s record on health care and the environment, and the national media chimed in on capital punishment. Some of Gore’s attacks were exaggerated (Houston does not have dirtier air than Los Angeles), but enough were on target—Texas ranks forty-ninth among the states in the number and percentage of insured children, for example—that we ought to consider seriously whether the kind of government we have is the kind we ought to have.

The place to have this debate is in the legislative session that begins on January 9. This is not a partisan issue. It predates Bush's governorship—and Ann Richards', and you can substitute any other name you like. Texas has traditionally embraced a low-tax, low-service philosophy with the intention of creating a good climate for business. Except for executions and highway miles, the state has long ranked near the bottom in just about every category in which state government can be measured. Columnist Molly Ivins has built a career around lines like "Texas is Mississippi with good roads." The trouble is, even our roads aren't so good anymore.

The lesson of the presidential race is that for Texas to fail to make an effort to address its shortcomings is to choose to be forty-ninth. That choice will have consequences. A good business climate carries a different meaning today. Houston's reputation as Pollution City will deter businesses from moving to town. The Rio Grande Valley's reputation for poor health care will discourage investment and economic growth in an area that desperately needs it. Perception is reality, and the perception of Texas today is not altogether different from the perception of opponents of annexation 156 years ago, one of whom described us as "an unprincipled population of adventurers."

The question now is what the Legislature can do. Let's start with capital punishment, because the fixes are easy and cheap. Despite Bush's insistence that the state's method of handling death penalty cases is fair, the evidence to the contrary is overwhelming, from inadequate counsel to indifferent appellate courts. The issue is not capital punishment itself. Texans are overwhelmingly in favor of it. Aware that the rest of the country thinks we are out of step, we think it is the other way around: Why shouldn't violent criminals who commit heinous offenses suffer the ultimate punishment? But the belief in capital punishment must be accompanied by an insistence on fair trials.

The first step is to give juries the sentencing option of life imprisonment without parole. This is not a slap on the wrist. Neither is current Texas law, which stipulates that anyone convicted of capital murder must serve at least forty calendar years in prison before being eligible for parole. But prosecutors and juries are reluctant to allow even a possibility that a murderer could go free; life without parole removes that possibility. In addition, lawmakers should mandate the use of DNA evidence if any exists. Under current law, a judge must decide whether to order DNA testing. No one should be put to death unless every step that could establish his innocence has been taken.

The right to counsel for capital murder defendants ought to be beyond controversy. It is so central to a fair proceeding that its absence should be automatic grounds for a new trial. No more hairsplitting, please, over whether a sleeping lawyer had napped through a portion of the trial in which a lawyer wasn't really necessary, as is the issue in an ongoing federal court case in Texas. A public-defender system in capital cases is the long-term answer, but in a year when so much needs to be done in the areas of health and education, the money is unlikely to be available. For now, about all the Legislature can do is establish some specific standards for adequate counsel that, one hopes, appellate courts will follow.

Finally, the Texas clemency process in capital cases, which has received so much adverse publicity, needs to be junked. A board that meets sporadically and often faxes in their votes shouldn't be deciding whether to recommend that a death sentence be reduced to life imprisonment. The original idea was to make clemency less of a political hot potato by getting the governor out of the process. It has failed. The idea of accountability, which has worked so well in education, should be applied to clemency as well. It ought to be the governor's call, not some nonelected board's.

The problems in health care are both regional and statewide. The colonias in South Texas are the most serious regional problem. These unregulated, jerry-built rural subdivisions typically lack water and sewer service. Residents depend upon well water that is often unhealthy. The state has provided bond money to get water hookups for some colonias, but new ones keep springing up, and there is nothing counties can do to stop them. The Legislature should give counties the specific ordinance-making power they currently lack to prevent developers from creating colonia-style subdivisions that are threats to public health and safety.

The statewide problem is simply that Texas has been skimping on all kinds of health care—from childhood immunizations to reimbursements for nursing homes—for too long. The details can be mind-numbing, but the bottom line is that Texas has too many uninsured children and too many children who are eligible for Medicaid but not signed up. What we learned from the presidential campaign is that these omissions are not accidental; they are unwritten state policy, designed to save money. Pardon me for asking, but isn't there a better place to cut corners than kids' health? This is not hard to fix. It just takes will and money—two commodities, alas, that are often in short supply in a certain domed building during the spring of odd-numbered years.

The environment rates as one of the big political battlegrounds of the session, especially air pollution. Democrats see it the way Republicans see abortion: as a litmus-test issue that will put pressure on the other party. With the state's main environmental agency, the Texas Natural Resource Conservation Commission (TNRCC), scheduled for special legislative scrutiny this year, Democrats will surely challenge the voluntary approach to emissions reduction championed by Bush and enacted in 1999. The current law calls for fines for plants that continue to have dirty air; this should be changed by extending the grace period for voluntary action, after which compliance would be mandatory.

How much money will be available? State leaders expect a surplus of $4. 5 billion, perhaps as much as $5 billion, which sounds great, except that a cap on spending will come into play this year. It may take some of the money off the table, unless lawmakers cast a politically perilous vote to override it. In any case, much of the windfall has already been spoken for. Enrollment growth in public schools, projected spending increases for Medicaid, and more caseworkers for programs like Child Protective Services are big-ticket items. Rising health care costs for state employees and retired teachers must be covered. In an effort to reduce high turnover among prison guards, a pay increase is likely. Once these priorities are taken care of, the real battle starts: divvying up the remaining $1. 5 billion or so. Already a consensus is building that the state needs to start paying a portion of teachers' health insurance, something that in the past has been a local responsibility. Some school districts, however, provide no health insurance at all; others offer no dependent coverage. A complete state takeover would break the bank, but you have to start somewhere.

The long shadow of the election falls not only on the Legislature but also on the governor's office. A month after the election, no one yet knew for certain who the occupant would be come January, but the likelihood was that Bush would at last be the official president-elect and Lieutenant Governor Rick Perry would become Texas' first nonelected governor since Allan Shivers succeeded the late Beauford Jester in 1949. Whether Perry shares the concern that state government is not living up to its basic responsibilities is largely unknown—as, indeed, is Perry himself. His stated priorities are higher education and highways. In eight years as agriculture commissioner and two as lieutenant governor, he has revealed himself as a man who is one part former Aggie yell leader, someone who is genial, funny, and yet has the capacity for military-style self-discipline; one part canny rural politician, someone with good political instincts and a sense of when to hold 'em and when to fold 'em; and one part middle-of-the-pack state representative (which he once was), someone who cares a lot more about politics than substance. He has never been able, or perhaps has never felt the need, to assemble a first-rate staff. More than anyone else in the Capitol, he has suffered from the lingering twilight of the election by losing valuable preparation time for the session. One wishes him the best and fears the worst. Experience has proved that this is the safest attitude to adopt when the Legislature comes to town.

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