Category Archives: State

He thought he had a free court-appointed lawyer. Then he got a bill for $10,000

The Hill County Courthouse in Hillsboro.

After Kelly Unterburger and his girlfriend were pulled over for speeding in 2011, a state trooper searched the car and found what was described in court documents as a bag dusted with white powder. Unterburger was arrested for possessing less than a gram of a controlled substance and brought before a North Texas court.

The U.S. Constitution says people too poor to afford a lawyer should be appointed one paid for by taxpayers. And Unterburger — who said he was wrongly accused — was told he would be. So he was surprised when, years later, a bill arrived saying he owed thousands of dollars in attorneys’ fees.

“If I’d known they were going to charge me,” he said, “I would have spent more time screening lawyers.”

In Texas and across the country, defendants are sometimes asked to repay part or all of the costs of their court-appointed lawyer through a practice called recoupment. Texas counties recouped more than $11 million from poor defendants in 2016, 4.5 percent of the total amount spent on indigent defense statewide.

Critics argue the practice can seem “untoward, to say you’re given this [constitutional] right but we’re going to charge you for it,” said Beth Colgan, a professor at the University of California at Los Angeles School of Law. But proponents say it’s sound public policy and a way to tamp down on a ceiling-less mandate borne largely by local taxpayers.

Since 2001, when Texas drastically revamped its public defense system, the costs of assigning lawyers to poor defendants has skyrocketed, from $91.4 million to nearly $248 million in 2016. County coffers have paid the most. Last year, the state allotted around $32 million to indigent defense; counties together paid $216 million, 87 percent of the overall amount.

“Small, economically disadvantaged rural counties like Hill County, we have limited budgets, and we spend a significant amount of money on indigent defense,” said David Holmes, the county attorney there. It “is just and right to ask that if you offend the laws of the state or victimize citizens of this county – and the taxpayers of the county provide you with a lawyer that you don’t have to pay for up front – if you at some point have the ability to do that, you ought to do it.”

Depending on the court, defendants in Texas can be deemed indigent if their income is less than $49,200 for a family of four.

Some defendants are told at the outset of their case that they may be liable for their court-appointed lawyers’ costs. But Unterburger says he wasn’t. He says he didn’t know what seemed like the guarantee of a free lawyer could be rescinded. And he was especially shocked when the bill came in 2014, and it said he owed nearly $10,000.

Policies differ from court to court

Data maintained by the Texas Indigent Defense Commission shows wild variation in how much money Texas counties recoup from poor defendants. Johnson County, where Unterburger was charged, recouped nearly 15 percent of the money it spent on indigent defense last year. According to the data, Andrews County made back nearly 70 percent of its public defense costs in 2016, while 51 others recouped nothing at all.

County-to-county discrepancies aren’t unique to Texas, Colgan said. Recoupment policies differ from court to court but are often part of a “package of economic sanctions” tied to a case’s resolution, she said. Lawyer’s fees are sometimes included in plea deals or listed as a line item alongside administrative court costs that defendants are asked to pay at sentencing.

Colgan, who has researched recoupment policies in different states, said some jurisdictions use a flat fee to make back lawyer’s fees, while “in other places, it’s targeted at the amount of expenses actually incurred.”

Before levying lawyer’s fees, the court is supposed to determine that a defendant can afford to pay them. Critics say that determination does not always happen in a formal way, and they worry defendants may waive their right to counsel if they think they’ll receive a bill for that representation later.

On average, attorneys appointed by Texas courts are paid $200 for a misdemeanor case and $600 for a non-capital felony, said Wesley Shackelford, the Texas Indigent Defense Commission’s interim executive director. Cases that go to trial, like Unterburger’s, can incur significantly higher costs.

With the help of an attorney at the Texas Fair Defense Project, Unterburger was able to have the nearly $10,000 bill dropped.

Unterburger spent about three years imprisoned as he took his case to trial, and then appealed the guilty verdict.

“I didn’t even know that’s a law,” said Unterburger, who now does irrigation and landscaping work. “I worked really hard to stay up with everything,” including paying hundreds of dollars in probation fees.

“It doesn’t seem like it’d be fair,” he said of the recoupment practice.

Emily Gerrick, the lawyer who assisted him, says she argued the court had made a mistake in ordering the $10,000 bill. But “for a lot of people they really aren’t able to challenge it, because they don’t have a lawyer to help them or the court is just going to refuse.”

Donnie Yandell, Caprock Regional Chief Public Defender, said counties’ efforts to receive reimbursement for lawyers’ costs are often fruitless.

“Judges tell you about [setting up] payment plans for these people,” said Yandell, who is based in Lubbock. “You don’t get any more money out of them.” Many of his clients “scrape by,” and “just don’t have the money to start out with.” He added, “You can’t get blood out of a turnip.”

A new state law

A state law that went into effect Sept. 1 extends the period during which defendants can be asked to repay their lawyer’s bill. While that window used to close at sentencing, defendants can now have their financial status re-evaluated at any point while they serve out their sentence. Whether in jail, prison or on probation, it’s a period that sometimes lasts years.

Shackelford says the law has “safeguards” to protect defendants’ due process rights. Judges must first provide defendants with written notice that they’re on the line for lawyer’s fees and offer them a chance to rebut with evidence their ability to pay.

The law was enacted in “an effort to protect the collateral victims of crime: that being the law-abiding, taxpaying citizens that are having to absorb all these costs when it was unnecessary,” said Mark Pratt, the district attorney of Hill County, who weighed in on an early version of the legislation.

That rendering of the bill, filed in 2015, failed to pass. State Sen. Brian Birdwell, R-Granbury, authored the 2017 law.

Pratt says if a poor defendant later comes into funds — wins the lottery, say, or gets an inheritance — it makes sense from a public policy standpoint for that person to reimburse the county. The law allows for the reverse, too: If a defendant loses a job while on probation, their financial status can be re-evaluated so they pay less. Defendants can’t be asked to repay more than the county paid.

In a statement, Birdwell said the law was passed “with the simple intent of clarifying that a defendant’s status as indigent can change over time throughout adjudication and serving a sentence.” He added that it “gives judges additional discretion to protect both taxpayers and defendants during the duration of the judicial process.”

Enough precautions have been taken “to ensure that this will be properly used to recover additional funds from those that are able to pay and it’s not used as any form of punishment for those that cannot,” said James Allison, general counsel for the County Judges and Commissioners Association of Texas. He doesn’t expect the statute will be heavily used and said counties are “not interested in wasting our time and resources pursuing people that can’t pay.”

Allison said increased funding from the state for indigent defense is needed to alleviate the burden on counties. Across the country, Texas ranks among those that spend the least per capita on indigent defense – with most of the funds coming from counties, according to a 2008 National Legal Aid and Defender Association report and a 2010 American Bar Association report respectively.

“I think the idea behind it is a pretty good idea,” Yandell said of the new law. “I just don’t know how well it’s going to be implemented.”

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At the Texas Capitol, victims of sexual harassment must fend for themselves

Disgust overwhelmed her when she felt his tongue on her hand.

A capitol staffer, she had been at a large party celebrating the end of a legislative session a few years ago and was on her way out when a male lawmaker she had never spoken to reached for her.

“You can’t leave yet,” the staffer remembers the lawmaker telling her as he held her hand tightly. She thought he was going to bring her hand to his mouth and kiss it. Instead, he licked it and refused to let go.

“It was in a crowded place,” said the staffer, who no longer works at the Capitol and spoke to The Texas Tribune on the condition of anonymity for fear it would affect her current job. “Maybe it was so subtle that no one else saw anything [but] the audacity of someone to do that and think it’s OK — it just boggled my mind.”

As sexual misconduct accusations pile up against men in power across the country, interviews with more than two dozen current and former lawmakers and legislative aides indicate sexual harassment not only is pervasive at the Texas Capitol but also regularly goes unchecked. Most of those interviewed described how men at the Capitol — some of them lawmakers — engaged in a wide range of harassment, including degrading comments and gestures, groping and unwanted sexual advances.

Yet not a single formal complaint of sexual harassment has been filed in either the House or Senate since 2011, according to a review of public records and interviews with officials responsible for fielding complaints. Even though sexual harassment policies have been in place for two decades, few employees interviewed by the Tribune even knew they could file a formal complaint.

The policies themselves are outdated — both reference a state agency that no longer exists — and rely on Capitol officials with little incentive or authority to enforce them, particularly in cases of harassment by lawmakers.

“Well, you know we can’t fire them. The people get to fire them,” said Patsy Spaw, of elected officials. As the secretary of the senate, Spaw’s duties include resolving complaints in the chamber.

“There’s nothing to talk about”

Many of those interviewed spoke of a Capitol culture that offers little support for victims and expressed fears that speaking out would lead to retaliation or career sabotage. Instead, women who work in the Legislature said they try to protect one another by quietly exchanging stories. They pass along the names of men to stay away from and the hallways in the Capitol to avoid.

“You either created a distance or didn’t place yourself in situations where you had to interact with them,” said a former staffer who dealt with unwelcome advances from a lawmaker on the Senate floor and at an end-of-session party.

Another former staffer described the Capitol as a place where sexual harassment is “as common as a hello,” where powerful men can prey on employees with impunity. She recounted greeting several guests at a lobbyist’s party who were sitting at a table. Among them was a lawmaker, who in a “split second” shot his hand up her skirt.

The staffer said she pushed his hand away and quickly left the event in distress. She remembers being thankful for wearing the “right underwear,” noting that otherwise he could have penetrated her.

Feeling powerless, she said she didn’t disclose the incident to anyone. “To be able to have success in this world, you’ve got to keep quiet,” she said.

In accounts published last week in the Daily Beast, other women, including journalists, reported their own experiences being sexually assaulted by Texas lawmakers.

The House and Senate have had a sexual harassment policies since 1995. Both generally state that sexual harassment will not be tolerated and lay out basic procedures for reporting any misconduct.

The House policy directs employees to make complaints to the chair of the House Administration Committee — an influential position set by the House Speaker and currently held by Republican state Rep. Charlie Geren — or to the manager of the House payroll and personnel department. Over in the Senate, complaints would be reported to Spaw, the Senate Human Resources office or supervisors in individual offices.

But those officials have little to no authority over lawmakers who are ultimately elected by voters back home. In the Senate, a legislator could be reprimanded privately or publicly if they were found to have sexually harassed someone, Spaw said. In the House, the state Constitution gives lawmakers “the power to punish a member for disorderly conduct and, in extreme cases, to expel a member,” Jon Schnautz, the chamber’s ethics adviser, said in a statement.

Several former staffers said they would not have reported their experiences with sexual harassment to House Administration because they had no confidence that the member-led committee would be objective.

“I probably would never even have felt like that was an outlet that I could trust, but I didn’t even know that was a process that existed,” said Genevieve Cato, a former House employee who has spoken publicly about harassment at the Capitol.

Another staffer said she didn’t feel Geren’s committee was a “safe place to report that.”

Geren, a Fort Worth Republican who’s served in the House for almost two decades, refused to answer questions from the Tribune about how his committee would handle a sexual harassment complaint because, he said, the committee had not received any.

“There’s nothing to talk about because we don’t have any,” Geren said. “I don’t deal in ifs. When there’s one I’ll handle it. And that’s it.”

Asked if the policy needed revision, Geren said he would not further discuss the issue. “I don’t have any more comments about it,” he said.

For her part, Spaw said any complaints filed in the Senate would be taken “really seriously,” though she said a resolution would also depend on the Senate Administration Committee and Lt. Gov. Dan Patrick to take action.

“Each situation would be individual,” she said. “But it is a conundrum … I’m thankful I’ve not had to deal with it.”

Labor and sexual discrimination law experts say the chambers’ policies offer few assurances that complaints will meet adequate resolutions.

Having lawmakers in charge of investigations is “absolutely problematic,” said Elizabeth Boyce, an attorney for the Texas Association Against Sexual Assault. Without an independent and impartial entity to investigate any claims of sexual harassment, Boyce said, it’s too easy for personal judgments to come into play.

“I don’t think that [an investigation] can be fairly done by someone that they’re likely friends [with] or working together in other capacities,” she said. “There’s a conflict of interest there that I think would impede any impartial investigation.”

Legal experts also raised concerns that the House policy says victims may first confront harassers to tell them to stop the behavior.

“This is treating a sexual harassment complaint different than any other kind of complaint,” Boyce said. “If there was an employee stealing from the company, for instance, you wouldn’t expect the person who caught them … to tell the person to stop before they make the complaint.”

The Senate’s policy doesn’t explicitly suggest victims should confront their harassers, but staffers have been instructed to do so. During a 2016 in-person training seminar on sexual harassment in the Senate, a trainer laid out “strategies for confronting sexual harassment on the job” that included instructions to “clearly let the harasser know you don’t welcome any advances,” according to a video recording of the training a reporter viewed on the Senate’s internal employee system.

It’s not unusual for policies to ask employees who encounter sexual harassment to address offenders about their behavior before reporting it, said Audrey Mross, a Dallas-based employment attorney. But it is crucial those policies emphasize this is only applicable in cases of mild behaviors and only if they are comfortable having those conversations, she said.

“This needs to be in big capital letters,” Mross said.

A power imbalance

The task of reporting workplace sexual harassment at the Capitol is further complicated by concerns that speaking out could damage relationships essential to the legislative process.

“The sexual harassment at the Capitol is not just, ‘Hey, you’re cute’ — it’s about power. And some of the people in power are bullies,” said a former female chief of staff.

Early in her tenure in the state Senate, Wendy Davis remembers having a conversation at a political event with an older man who happened to be a recently elected, first-term House member. Unaware she was a fellow lawmaker, he reached forward, as though to pat her arm, and instead reached between her arm and breast and cupped her breast.

“It wasn’t an accidental brushing,” the former state senator said. “It was a purposeful touching of my breast.”

Davis told her colleagues in the House about the incident and “as a consequence of that, he had a challenge getting anything passed,” she said.

Finally, he apologized. But Davis, the Fort Worth Democrat who unsuccessfully ran for governor in 2014 after serving in the state senate for six years, acknowledged that her position gave her a form of recourse not available to other women working in the Capitol.

”This is the problem for young women who are working in settings of power differentials,” she said. “They don’t have the power to create the same consequences. And in places like that, we have to be sensitive to creating an avenue for consequences that will not penalize the young women who stepped forward.”

Another female staffer said she questioned what good making a complaint would do after she was harassed by a state senator. After cornering her at a political reception and saying they should “get together,” she said the senator tracked down her cell phone number and called her the next morning.

She wasn’t aware of a formal complaint process, but she decided against even telling her boss, a House lawmaker, because she worried about the effect it could have on the bills they were working on when they went through the Senate.

The staffer was further resolved not to speak out by how the people who witnessed the incident responded. Some seemed so accustomed to the lawmaker’s treatment of women, they simply thought “it was funny.”

“I just shook it off,” she said. “I still have to work with all of these people. For my own sanity, I’m going to pretend like it never happened.”

But even when their bosses are supportive, staffers may balk at filing a formal complaint.

State Rep. Donna Howard, an Austin Democrat in the House since 2006, recounted an instance when a Capitol staffer told her about a state senator who had made “humping motions” toward her while they were alone in an elevator. Howard said the staffer did not want to be named in an official complaint, so she reported the behavior herself to Geren and House Speaker Joe Straus’ office in case there were any future issues with the senator.

“I said ‘I would like to be able to report this’ — she didn’t want to,” Howard said. “Part of the problem with reporting is that women don’t want to come forward because they often become embroiled in things that make them look like they’ve done something wrong when they haven’t.”

Howard, who said she looked up the House’s sexual harassment policy after a Tribune reporter asked about it, called it “totally insufficient.”

“There’s just nothing here,” she said. “It’s disturbing to learn more about it myself.”

Hoping to facilitate the reporting process for her staff, state Sen. Sylvia Garcia said she created an additional sexual harassment policy specifically for her Senate office that instructs staffers to go directly to the chief of staff or Garcia if they’ve been subjected to harassment.

The Houston Democrat said she would have been “shocked” to learn there was even a single formal complaint of sexual harassment in the Senate, noting the culture around the Capitol is far from supportive of staffers who may fear retribution or being ostracized if they report such behavior.

After speaking with the Tribune, Garcia said she was considering legislation to form an independent entity to oversee complaints in both chambers. She also pointed to a recently passed measure in the U.S. Senate, requiring mandatory sexual harassment training for all senators and their staff, as a possible model.

But even with those possible solutions in mind, Garcia acknowledged it is more difficult to confront sexual harassment at the Capitol — where lawmakers who may be harassing staff have all of the power — than the average workplace.

“The whole officialdom is a totally different animal,” Garcia said. “We’re not employees. We’re elected. A lot of the rules don’t apply to us.”

Abby Livingston contributed to this report.

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Human Rights Lawyer on How Government is Complicit in Mexico’s Drug War

Cover image for the “Human Rights Abuses in Coahuila, Mexico” report.  University of Texas School of Law

More than a decade into a violent conflict that seems nowhere near being resolved, Mexico is a country haunted by the missing. The Mexican government estimates that more than 32,000 people have disappeared in the last decade — a statistic that is likely far too low, since it comes from a federal database that relies on flawed data.

In 2010, University of Texas law professor Ariel Dulitzky was appointed by the United Nations Human Rights Council to a five-person working group tasked with investigating the spike in kidnappings. What he found was a government unwilling to tackle the growing problem, which was highlighted by the unsolved 2014 mass kidnapping of 43 students from the Ayotzinapa Rural Teachers’ College. In their new report, “Human Rights Abuses in Coahuila, Mexico,” Dulitzky and his students investigate another unsolved tragedy: the March 2011 kidnappings of at least 300 men, women and children by members of the Zetas cartel in the Cinco Manantiales region in the Mexican border state of Coahuila.

University of Texas law professor Ariel Dulitzky.  Mari Correa/©maricorrea

In 2016, Dulitzky, director of the Human Rights Clinic at the University of Texas School of Law, tasked his students with analyzing witness testimonies from three federal trials in San Antonio, Austin and Del Rio that involved key members of the Zetas. One of the report’s most troubling conclusions is that, according to witness testimonies, the Zetas paid two powerful politicians — Humberto Moreira, the former governor of Coahuila, and his brother Ruben, the state’s current governor — several million dollars in bribes so that they could operate with total impunity.

In the report, Dulitzky and his students conclude that both the Zetas and elected officials are to blame for the violence in Coahuila. They also argue that U.S. law enforcement, through its debriefing of numerous witnesses in the United States, is more than likely holding vital information that could help grieving families in Mexico locate the remains of their missing loved ones, or at the very least, help them confirm their deaths. Dulitzky spoke with the Observer about the new report’s findings and his continuing fight to find justice for the families of the disappeared in Mexico.

What does this new report tell us about the conflict in Mexico?

One thing it tells us is that through corruption and intimidation, many state authorities worked for the Zetas and coordinated with the Zetas and let them operate without any obstruction. This finding is not new, but what is new is that [it comes] from the testimonies of insiders in the Zetas and they were very explicit.

And there are a couple of other things: There is a clear presence of Zeta operatives in Texas and in other parts of the United States, according to their testimonies. They are present not only in Texas, but in other states including New Mexico, Oklahoma, California, Illinois and Georgia. It’s also very clear that what is happening in Mexico is not just a Mexican problem alone. The testimonies are clear that the weapons are bought here, especially in Texas, and transported to Mexico. And the drugs come from Mexico to the United States. The main responsibility lies with Mexican authorities, but the U.S. government should also do more because of the transnational aspect of the Zetas’ operations.

What is the current status of the recovery of bodies in Coahuila from the 2011 massacres?

The state government established a special prosecution office to deal with the disappearances. They have periodic meetings between the prosecutors and relatives of the disappeared, but there’s no coherent plan to search for the missing. Three weeks ago, the Mexican Congress passed a very comprehensive law that creates a national system for the search for the disappeared. We hope it will have a positive impact, but first it needs to be implemented. It will be a challenge because the testimonies indicate that with some of the people who disappeared their bodies were incinerated or dissolved in acid. So those bodies are never going to be recovered.

How do you hope Mexican authorities will respond to this report?

We hope that our research and others doing this type of research will better help with the implementation of the new law on the disappeared. And that more concerted efforts will be made to search for the missing. We also want to make clear that corruption is an integral element of the violence happening in Mexico. So when we talk about disappearances, our main focus is that dealing with corruption is a way to prevent more of them from happening.

In the report, you conclude that U.S. law enforcement has vital information about the massacres that hasn’t been made public.

What is clear is that some of the U.S. law enforcement agents who testified in the trials received from witnesses they spoke to much more detailed information on victims and human rights abuses and potential locations where bodies could be. U.S. law enforcement says it gave that information to the Mexican authorities, but the Mexican authorities said they couldn’t find the addresses or the places were too dangerous for them to go to. So that information was never made public. It was never given to any human rights organizations or to the families who are searching for their relatives. We hope that U.S. law enforcement will give that information to human rights groups.

You’re Argentine, and many South American countries have dealt publicly with the disappearances in the ’70s and ’80s during the dirty wars [of state-sponsored terrorism]. Mexico also had a dirty war, but there was never any acknowledgment or reconciliation. Now, once again, the Mexican government seems unwilling to acknowledge the missing. Why is Mexico such a tough case?

That is a very good question. When I visited Mexico with the UN working group on enforced disappearances, we looked both at the disappearances during the dirty war in Mexico in the ’70s and ’80s and the current disappearances. We found at least two elements that were common in both periods. First, there is this pattern of structural impunity, and the second is the presence of the military conducting domestic security operations.

One of the main differences between Mexico and [Argentina] is that in Argentina, there was a clear break between the dictatorship and the new democratic government. There was also a change in the entire state apparatus from the judiciary to the executive branch. This type of break from the past has never happened in Mexico. It was a slow process where at first the opposition started to win local government races, then the majority in Congress and eventually the presidency in 2000. But the PRI [the Institutional Revolutionary Party, which ruled Mexico for 71 years] still remains one of the main political actors and now they are in the presidency again, so that transition was very different from Argentina’s. In Mexico there are many constraints on accountability for what happened in the past.

Editor’s Note: On Tuesday, November 14, Ariel Dulitzky and his students will present the report “Human Rights Abuses in Coahuila, Mexico,” at 4:30 p.m. at the University of Texas School of Law. Observer reporter Melissa del Bosque will also participate in the panel.

The post Human Rights Lawyer on How Government is Complicit in Mexico’s Drug War appeared first on The Texas Observer.

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Gov. Greg Abbott endorses primary challenger to state Rep. Sarah Davis

Rep. Sarah Davis, R-West University Place, speaks to media regarding her request to add Ethics Reform to the special session on Aug. 2, 2017.

Texas Gov. Greg Abbott on Monday endorsed a primary challenger to a fellow Republican, state Rep. Sarah Davis of West University Place, following through on his promise earlier this year to play a more aggressive role in the 2018 election season.

Abbott released a video throwing his support to Davis opponent Susanna Dokupil, who worked under Abbott when he was the state’s attorney general.

“We need leaders in Austin who will join me to build an even better future for Texas,” Abbott said. “That’s why I’m so proud to support Susanna Dokpuil for state representative of House District 134 in Houston, Texas.”

Davis, who chairs the House General Investigating and Ethics Committee, had clashed with Abbott over the summer over the governor’s decision not to include ethics reform among a list of 20 items he directed lawmakers to tackle during a special session. Heading into that special session, Abbott had raised the prospect that he could back challengers to incumbents who were less than supportive of his agenda. Dokupil is the first primary challenger to an incumbent he has endorsed this cycle.

Dokupil served as assistant solicitor general in the attorney general’s office.

Abbott made his first endorsement in the 2018 House primaries last week, backing state Rep. Paul Workman, an Austin Republican who had authored legislation for Abbott’s special session agenda. Workman faces a primary challenger from his right, Jay Wiley.

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Analysis: A media exec in Texas politics, not quite ready for prime time

Bruce Jacobson is vice president of media for LIFE Outreach International and executive producer of Life Today TV.

Editor’s note: If you’d like an email notice whenever we publish Ross Ramsey’s column, click here.

Today’s column is brought to you by the Bureau of First Impressions. That agency, like the “Bruce Jacobson Jr. for United States Senate from Texas” campaign, is an imaginary entity that may or may not really exist.

Candidates started officially filing for the 2018 election cycle in Texas over the weekend. Some were doing their prep last week — and one of them forgot to hang an “under construction” sign on his website and his campaign.

Jacobson, an executive in Christian TV in Tarrant County, told reporters earlier this year that he was “prayerfully considering” a primary challenge against Republican U.S. Sen. Ted Cruz.

He’s still thinking, apparently, but someone in his camp is working on his website.

Publicly. Awkwardly.

It’s like turning on a microphone with nothing to say, or a camera with nothing to see.

Here’s what it said on his brucefortexas.com website on Friday afternoon.

“This test website is merely a temporary platform for a federal candidacy that may or may not be announced shortly. This beta website does not constitute an announcement of a candidacy and does not indicate support or opposition for any announced candidate.”

That tells us that there’s a lawyer hiding in there somewhere. Here’s a translation: “We haven’t filed our paperwork, campaign finance information, etc. Please don’t spank us.”

The earlier version, snagged by the Texas Tribune’s alert political editor, Aman Batheja, was much less lawyerly, and much, much more entertaining:

“This Website is Under Construction.

“This is highly likely going to be the website for Bruce Jacobson, Jr. for his possible upcoming campaign for the United States Senate. This website is currently going undergoing testing.

“Had this website been live, you would have seen information about Bruce Jacobson, Jr., about his positions on the issues for the 2018 United States Senate campaign that impact the great State of Texas.

“Had this website been live, you would be given area to donate to this possibly upcoming almost official campaign for the State of Texas representative who could be serving Texas in the United States Senate.

“Had this website been live, you would most likely be viewing the Bruce Jacobson, Jr. For United States Senate announcement video which is of course, currently being edited for a highly possible announcement and press release about Bruce Jacobson, Jr. most likely to be announcing next week and then serving as the Senator from the great State of Texas after a peaceful non-combative primary with the 34th U.S. Senator from Texas Ted Cruz. Senator Cruz will be defeated and we would really, really love your support in the primary and the general election, provided we announce sometime next week.”

It’s a small mistake — the sort of thing that happens when the effervescent marketing arm of a campaign gets ahead of things. Some of the website looked last week like it will probably look if and when the Jacobson juggernaut leaves the runway. His biography is up. There’s a page where supporters and curious political reporters can throw their names onto the campaign’s email list.

The place to take donations isn’t live yet — this isn’t a campaign yet, right? But the “Nationbuilder” template for the site is there, along with setup instructions for larval campaigns like this one: “Accepting donations requires a couple of steps… Be sure to delete this information or replace it with a short reason to provide financial support for your efforts.”

Why would he run? What would his positions be? That’s unknown for this maybe-maybe not effort. One page is set up for “United State Senate Issues for Texas in 2018,” but all it says, after the typos, is “Stay Tuned.”

Okay. There’s time. We can wait.

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Rent-to-own complaints spur investigation by federal agency

A Rent-A-Center in Newport News, Virginia on Sept. 22, 2017. 

A U.S. government consumer watchdog agency is investigating the $8 billion rent-to-own industry and related companies over questions about unfair, deceptive and abusive practices, NerdWallet has learned.

Investigators for the Consumer Financial Protection Bureau are asking specifically about Rent-A-Center, the nation’s largest rent-to-own enterprise with more than 2,400 stores selling furniture and appliances mostly to low-income Americans.

A months-long investigation by The Texas Tribune and NerdWallet last month found that rent-to-own companies have used a little-known Texas law to press criminal charges against thousands of customers who fell behind in their payments in Texas and other states.

NerdWallet also reported in a joint investigation with Raycom Media that Rent-A-Center customers nationwide have complained their credit had been harmed and they were badgered by bill collectors over accounts they had paid off.

Five days after the stories appeared, Rent-A-Center’s top executive, Steven L. Pepper, resigned amid a continuing power struggle on the board of directors. Shares of the publicly traded company, headquartered in Plano, Texas, have declined nearly 75 percent in the last four years as it has struggled to increase revenue.

The CFPB sent Rent-A-Center a civil investigative demand in late July, requesting details about customer accounts it had sold to a debt buyer and other information about its business practices.

Investigators have interviewed people familiar with Rent-A-Center’s record-keeping. They asked about the company’s ability to credit customer payments properly and to report accurate information about consumers to credit reporting agencies, say people the CFPB interviewed.

Bureau staff members have also inquired about complaints that Rent-A-Center store managers pocketed consumers’ money instead of applying it to their accounts, one person interviewed by the agency told NerdWallet. He asked not to be identified because of a nondisclosure agreement he signed with the CFPB.

The CFPB declined to comment on its investigation.

Errors in customer accounts

The NerdWallet-Raycom investigation detailed the account errors and mistreatment of customers, including people who say they were threatened with criminal prosecution and had their doors kicked in. NerdWallet provided guidance to consumers harmed by the company.

Shareholders filed a federal lawsuit against the company in December 2016 over problems with its system for tracking customer payments. The complaint said Rent-A-Center had difficulty starting a new point-of-sale system in 2015, causing “severe harm” to company operations.

The company introduced the system despite repeated internal warnings about its flaws, leading to outages that caused customers to fall behind on their rental agreements, the shareholders allege in court filings. Rent-A-Center conceded its system had flaws. The company failed in an attempt to get the lawsuit dismissed.

A former senior information technology employee who helped with the rollout told NerdWallet that Rent-A-Center’s system had glitches that could show up in any account.

“There was no way to assure the veracity of any specific transaction,” said the former employee, who asked not to be named because of a nondisclosure agreement he signed with the company.

Gina Hethcock, a Rent-A-Center spokeswoman, said in an email this week that the company had received an inquiry from the Consumer Financial Protection Bureau regarding a prior debt sale. She said the accounts involved in the debt sale, and the CFPB’s inquiry, are unrelated to the rollout of the point-of-sale system the company uses in its 2,400 stores.

Rent-A-Center has long pushed to keep federal regulations at bay, spending more than $7.2 million lobbying Congress in the past decade, according to data collected by the Center for Responsive Politics.

Rent-A-Center petitioned the CFPB in August to modify or set aside its investigative demand. The company argued in a 30-page letter that the purpose of the investigation, and the broad nature of the bureau’s questions, exceeded the agency’s jurisdiction. The CFPB responded by agreeing to modify certain questions and document requests but said it has the authority to investigate the company.

Many of the complaints against Rent-A-Center detailed in the NerdWallet-Raycom report came from customers who signed lease agreements with the company for furniture sold at independently owned furniture stores.

Those transactions occurred through a Rent-A-Center subsidiary known as Acceptance Now, which operates inside nearly 1,300 furniture showrooms, including Ashley Furniture and Rooms to Go. In those showrooms, customers pick out furniture they want, but instead of buying it from the store, Acceptance Now buys it for them and leases it back to them. This process removes the store from any responsibility in disputes.

The Federal Trade Commission received 2,779 complaints about Rent-A-Center and Acceptance Now between January 2016 and June 2017.

Customers say credit reports were affected

Nearly one-third of the 674 consumers who filed complaints against Acceptance Now said they had asked the company for a record of their payment history or verification they owed money.

The company’s representatives failed to provide it, often saying they had no way of doing so, former customers said.

Ten percent of those 674 customers said errors ended up on their credit reports.

In late 2014, as Rent-A-Center was expanding its Acceptance Now program, it deemed more than 18,000 accounts seriously in arrears and sold them to a debt buyer.

At least 20 percent of the debts were invalid, says Branden Vigliotti, president of Lismore Holdings, who purchased the accounts. Customer after customer told collection agents he worked with that they had paid off their debt, sometimes voluntarily, sometimes under duress, sometimes as the result of a civil court action, Vigliotti said.

Vigliotti is in mediation with the company, which has disputed his claims.

Companies that mishandle customer records can be subject to penalties by state or federal regulators, says Ohio Attorney General Mike DeWine.

Companies have also been fined or forced to offer restitution to consumers for violating the law. The investigative demand Rent-A-Center received says the purpose of the CFPB’s investigation is to determine if rent-to-own and related companies have violated the Consumer Financial Protection Act, the Fair Debt Collection Practices Act or the Fair Credit Reporting Act.

DeWine led a 2015 push by state attorneys general to force credit reporting agencies to fix inaccuracies on consumers’ credit reports.

He urged consumers who have been harmed by Rent-A-Center to contact their state attorney general.

“This is an industry that needs regulation,” he said in an interview. “This is an industry that is really hurting poor people.”

Jill Riepenhoff, an investigative producer at Raycom Media, contributed to this report.

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Joel Osteen impersonator breaches security at Los Angeles event

A Joel Osteen impersonator is making waves after a video he posted went viral.

The impersonator is a comedian — pretending to be Osteen at an Osteen event in Los Angeles last month — but no one is laughing after an apparent security breach at the LA Forum.

In the video, you witness comedian and Osteen-lookalike Michael Klimkowski getting free parking and breaching security measures by entering the event without getting checked.

Along the way, he poses for pictures with fans.

The incident happened in October.

We have reached out to the Forum, but so far, haven’t gotten any comment.

The real Houston pastor, and his wife, Victoria, were in California for a night of worship open to the public.

A spokesman with Lakewood Church says Osteen never met the imposter.

The spokesperson also says Osteen’s security never confronted Klimkowski — it was Forum security and the Los Angeles Police Department that handled Klimkowski.

The Lakewood spokesman also adds that they are unsure if Osteen has ever met Klimkowski — but they have seen him in at least one book signing in Los Angeles.

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Cornyn and Cruz under pressure over allegations in Alabama Senate race

Alabama Senate candidate Roy Moore, center, flanked by U.S. Sens. Ted Cruz (left) and John Cornyn.

WASHINGTON — Texas’ two U.S. senators found themselves under intense pressure Thursday after explosive allegations surfaced that a candidate both men have endorsed pursued underage teenage girls decades ago.

The Washington Post is reporting that Roy Moore, the Alabama Republican nominee in an upcoming Senate special election to succeed U.S. Attorney General Jeff Sessions, tried to become romantically involved with four girls between the ages of 14 and 18 while he was in his 30s.

U.S. Sens. John Cornyn and Ted Cruz have both endorsed Moore in his bid.

Less than an hour after the story broke, senators were called to their chamber for a routine vote and were met with a crush of reporters.

Cornyn, the second-ranking GOP senator, called the allegations “deeply disturbing and troubling.”

“I think it’s up to the governor and the folks in Alabama to make that decision as far as what the next step is,” he said.

Cruz declined to answer questions as he passed reporters.

A cascade of other GOP senators — including Senate Majority Leader Mitch McConnell — told reporters that if the allegations are true, Moore must drop out of the race.

Cornyn then returned to reporters.

“Obviously, it’s very troubling, but I think people are trying to sort it out and figure out what the appropriate response is, including Sen. [Luther] Strange,” he said, referring to the temporarily-appointed senator whom Moore defeated in the GOP primary.

“If it is true… I don’t think this candidacy is sustainable, but we believe in a presumption of innocence until proven guilty, and so I think it’s important for the facts to come out.”

Cruz is in a particularly complicated political position. Prior to the Washington Post report, Brietbart News had its own pre-emptive story that was highly defensive of Moore. Former White House adviser Steve Bannon runs the website. He recently threatened to challenge every GOP senator in their primaries with the exception of Cruz.

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Coastal officials say feds failing Harvey victims on short-term housing

Fulton Mayor Jimmy Kendrick told the House Appropriations Subcommittee on Disaster Impact and Recovery that he's had suicidal thoughts as he tries to lead his city through its recovery from Hurricane Harvey. 

Coastal Texas officials whose counties and cities bore the brunt of Hurricane Harvey’s deadly blow this summer unleashed a barrage of complaints about recovery efforts at a Texas House subcommittee hearing in Corpus Christi on Wednesday.

The mayors and county leaders voiced frustration — and one shared a vivid account of suicidal thoughts — stemming from what they described as a woefully inadequate federal response to the storm’s vast destruction.

With winter coming, they told stories about residents still living in tents and hotels more than two months after the storm battered southeast Texas. Their criticisms were largely focused on the Federal Emergency Management Agency, which is in charge of initial recovery efforts.

“They rank high on promises and way low on promises kept,” Port Aransas Mayor Charles Bujan said.

FEMA officials did not immediately respond to requests for comment Wednesday.

The local leaders also told the Texas House Appropriations Subcommittee on Disaster Impact and Recovery that the state has not funded all communities’ relief efforts in an equitable way, an apparent reference to $50 million Gov. Greg Abbott gave Houston after a public dispute with Mayor Sylvester Turner.

And although the storm impacted communities across a wide swath of the state differently, they said one immediate need stands above the rest: securing more temporary housing for residents who will spend years recovering.

“You can’t rebuild a community unless your citizens have a place to live, and our citizens don’t have a place to live,” said Nueces County Judge Loyd Neal.

Their comments come on the heels of housing advocates and experts expressing worries that state leaders’ push for up to $121 billion in federal recovery money is focused more on public works projects like flood control than on individual assistance like rebuilding Texans’ flooded houses.

More than 886,000 Texas households applied for some sort of disaster aid after Harvey swept through a large swath of the state. As of last week, more than 51,000 southeast Texans were still displaced and living in hotel rooms, according to FEMA data, and at least 26,000 are handling temporary housing on their own, which could include living in damaged homes, staying with loved ones or paying for short-term housing needs out of pocket.

The state says more than 7,000 families still need government-subsidized temporary housing such as apartments or trailers while their homes are rebuilt. Mayors and county officials on Wednesday issued several criticisms about the bureaucracy residents must contend with as they seek immediate disaster aid.

“These people have gone through four steps and still don’t get any help,” said San Patricio County Judge Terry Simpson.

He also said that residents will begin the process with one FEMA worker only to have another one give them different instructions or explanations about aid qualifications or requirements weeks later.

“The system is broken,” he said. “The system doesn’t work the way it was planned to work.”

Bujan said more than 100 residents in Port Aransas lost their homes and only five families have been approved for temporary trailers.

“Those five trailers have never arrived,” he said. “They’re not there. I don’t know where they’re at.”

The hearing also featured state and local education officials detailing the high cost of displaced students and damaged school buildings. City, county and school officials also told lawmakers they expect to also face extreme budget woes once the value of damaged properties are reappraised and tax revenues plummet.

Fulton Mayor Jimmy Kendrick drew a spattering of applause after he testified that the stress from trying to recover with inadequate federal response keeps him from sleeping some nights. He said frustrated residents have focused some of their ire on him, lobbing unfounded accusations about him on social media.

“There’s been times I’ve sat there and thought about putting a gun in my mouth and pulling the trigger,” he said.

A two-pronged approach

Abbott split long-term recovery into two initiatives, each overseen by a different state entity vying for limited federal funds. A commission headed by Texas A&M University Chancellor John Sharp is focusing on securing money for infrastructure projects. The Texas General Land Office is spearheading efforts to find temporary housing for displaced Texans and also plans to oversee billions in federal dollars that will help them rebuild or renovate their homes.

But the land office is also seeking money for infrastructure projects — and doesn’t want the federal Housing and Urban Development department to limit how much long-term disaster relief money can be spent on public works projects versus housing recovery.

“The key to this is not thinking of it simply as rebuilding, but rebuilding to prevent damage from future storms and thus make Texas more resilient,” said Brittany Eck, a land office spokeswoman.

Land Commissioner George P. Bush said at Wednesday’s hearing that helping Texans is of primary importance. But he also said recovery money should be used to protect economic development and the private energy industry from the next disaster.

“We can’t lose sight of long-term resiliency,” he said.

Abbott’s two-pronged approach is similar to the state’s playbook after Hurricanes Ike and Dolly. But housing advocates complained about how the state handled those funds, and HUD eventually forced Texas to rework its plans for the money and required more spending on housing for lower income residents.

Nearly 10 years after those storms, more than $500 million in disaster relief funds remains unspent. About $297 million of that is earmarked for housing.

“No positive headlines”

Local officials on Wednesday also complained that FEMA says privacy laws prevent the agency from sharing why individual residents are declined assistance or asked to provide more information.

“We can’t exactly share the criteria by which applicants are being declined,” Bush said.

As his agency begins steering those approved for short-term assistance toward five different federal programs, Bush said he has lobbied for a moratorium on home foreclosures in impacted counties.

He also suggested that his office’s hands are tied on some matters by an “extensive, voluminous” agreement with FEMA to oversee short-term housing programs.

“People are going to be frustrated,” Bush said. “There are going to be no positive headlines as it relates to temporary housing.”

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The Faith-Tinged Fatalism of Greg Abbott’s Response to Texas’ Deadliest Mass Shooting

Texas Governor Greg Abbott attends a candlelight vigil held for the victims of a fatal shooting at the First Baptist Church of Sutherland Springs, Sunday, Nov. 5, 2017.  (AP Photo/Laura Skelding

By the time Governor Greg Abbott appeared in front of TV cameras Monday morning, a sharper image of the country’s latest mass shooting was taking shape. Officials had already confirmed that 26-year-old Devin Patrick Kelley had a history of domestic violence, like many other mass killers. That should have prevented him from purchasing the Ruger assault-style rifle he used to slaughter at least 26 people at the First Baptist Church in Sutherland Springs. Instead, Texas’ worst mass shooting in modern history represents yet another breathtaking failure by the federal background check system.

Abbott told news anchors on Monday that Texas had denied Kelley’s application for a state handgun license. But Texas, unlike some other states, doesn’t require a permit to purchase a rifle or handgun, making the feds the only real check on gun buyers in the state. When CNN’s Chris Cuomo pressed Abbott, the Texas governor invoked the spiritual realm, saying a prayer vigil with mourners in Sutherland Springs the night before had taught him “the best way to confront this evil is by using the forces of God to confront and overcome this evil.” When CBS’ Gayle King asked Abbott how he’d ensure those “evil” people don’t have access to firearms, he urged the country to return to “the fundamentals of our faith-based nation.” King cut him off mid-sentence, trying to bring the interview back to guns, but Abbott wasn’t swayed.

“The important thing is that if you go back to early times of this world, to the times of yesterday and last week, evil exists in this world,” Abbott said. In a later interview with Fox News, he raised Hitler, Mussolini, the Dark Ages and even “post-New Testament” periods of violence as signs that “evil is something that has permeated this world.”

Ken Paxton image cropped for hero purposes
Ken Paxton  patrick michels

Abbott wasn’t the only Texas politician to give the typical thoughts-and-prayers response to mass shootings a fatalistic, faith-tinged spin this week. Texas Attorney General Ken Paxton abandoned his usual law-and-order bromides, instead questioning gun-control laws if criminals will just break them. Meanwhile, in a press conference Monday afternoon, Senator Ted Cruz labeled the massacre in Sutherland Springs a story of “inspiration and hope” before scolding the media for even asking about guns. “Evil is evil is evil,” Cruz insisted, “and will use the weaponry that is available.”

Bad people taking advantage of readily available weapons to carry out heinous crimes is actually the reason that calls for gun control follow each tragedy like Sutherland Springs, the country’s 307th mass shooting so far this year. Gun deaths in the United States eclipse those in other Western industrial nations, which researchers continue to connect to the widespread availability of firearms here. As Harvard’s Injury Control Research Center puts it, “more guns = more homicide.” Congressman Lloyd Doggett of Austin was among the chorus of liberal and progressive politicians blaming Republicans for their inaction on the issue in light of the shooting. As he wrote in a Sunday afternoon Facebook post, “Once again violence destroys lives, while this Congress, owned lock, stock and barrel by the NRA refuses to act.”

Kelley appears to have been able to buy the weapon he needed to gun down an entire church service because of a notoriously buggy background check system for gun purchasers, the National Instant Criminal Background Check System, or NICS. On Monday afternoon, the Air Force admitted it hadn’t properly entered Kelley’s 2012 court martial for domestic violence into the federal database. That means the Academy store in San Antonio that reportedly sold Kelley his guns never learned that he was convicted of beating his wife and step-child. In addition to kicking and choking his wife, Kelley “assaulted his stepson severely enough that he fractured his skull,” Don Christensen, a retired colonel and former chief prosecutor for the Air Force, told The New York Times on Monday. “He pled to intentionally doing it.” The shooting may even hint at a larger flaw. The U.S. military appears to have sent almost no records of domestic abusers to the federal database, according to The Trace, a gun-focused news outlet.

What’s come out already about the bloodshed in Sutherland Springs raises questions for state officials like Abbott. The military news website Task & Purpose questions why, if Texas’ gun-licensing system flagged Kelley and denied him a permit to carry a gun, that information never made it to the feds, who could have actually stopped him from owning one. (When asked, Texas Department of Public Safety didn’t immediately say when the agency denied Kelley a gun permit.)

By the time Abbott went on air with conservative talk radio host Mark Levin on Monday evening, his message had already started to shift from the Biblical version of “shit happens.” He was ready to talk gun control once the day’s news had proved to him that the country doesn’t need more firearms restrictions. Instead, he told Levin, our violence-plagued nation needs better enforcement of existing laws.

Abbott wasn’t even sure that would do much to end the killing. As he told Levin, “if someone is willing to break the law to kill someone, then that person is likely willing to break the law to get a gun illegally.”

The post The Faith-Tinged Fatalism of Greg Abbott’s Response to Texas’ Deadliest Mass Shooting appeared first on The Texas Observer.

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Execution date set for Sugar Land man on death row

An execution date has been set for a Sugar Land man on death row for arranging to have some of his family members shot and killed so he could collect a $1 million inheritance.

Bart Whitaker is set to be executed on Feb. 22, 2018.

Investigators said that on Dec. 10, 2003, Whitaker arranged to make the shooting look like he and his family members interrupted a burglary as they returned home from dinner.

A masked gunman inside the home shot and killed Whitaker’s 19-year-old brother, Kevin, in the front room of the house. Then the gunman shot and killed Whitaker’s 51-year-old mother, Tricia. The shooter also wounded Whitaker’s 54-year-old father, Kent. A bullet hit Whitaker in his arm.

The gunman and a third person in the crime are also in prison, serving sentences.

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Free of criminal charges, state Rep. Dawnna Dukes says she was victimized

State Rep. Dawnna Dukes, D-Austin, says she's healthy enough to serve another term in the Texas House during a conversation on Nov. 7, 2017 at the Austin Club.  

In her first public appearance since being cleared of criminal charges, state Rep. Dawnna Dukes, D-Austin, said Tuesday she had been maligned by the Travis County district attorney, other Austin-area Democratic lawmakers and the news media.

Dukes, speaking at a Texas Tribune event in Austin, said she was motivated to give extensive public comments, for the first time since her criminal charges were dropped, “because it’s an opportunity to tell the real story.”

Last year, amid a criminal inquiry into whether Dukes had misused her public office, she announced she would resign, citing health reasons. On Tuesday, Dukes shed new light on her health issues. At the time, she said, according to a doctor’s diagnosis, “the outcome of my life looked very dim.”

Dukes later chose not to resign. She now faces a slew of Democratic primary challengers who announced they would run when it appeared Dukes would not return to the Legislature.

Dukes said Tuesday she had suffered simultaneously from “MS and MG,” an apparent reference to multiple sclerosis and myasthenia gravis. And she explained that, after a car accident left her seriously injured, she then suffered an additional injury to her neck — which was “severed, having already been weak,” she said — after some horseplay at the Capitol involving a purse strung around her neck.

Still, Dukes said she had recovered sufficiently to serve her district. “I’m healthy enough to serve another term,” she said. “I have fought back. I have on my high heels.”

The representative has come under fire by political opponents for missing votes at the Capitol. She downplayed those concerns, calling them inaccurate. She said Austin-area lawmakers had plotted against her. State Rep. “Donna Howard was the ringleader, and [Rep.] Celia Israel followed up,” Dukes said.

“There was a concerted effort by my delegation to make me appear more absent than everyone else,” she said.

Dukes arrived 40 minutes late to the Tribune event, citing a medical emergency.

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Texas back in federal court over anti-“sanctuary cities” law

Protesters opposed to Senate Bill 4, known as the "sanctuary cities" law, turn out in force for the last day of the legislative session on May 29, 2017.

Attorneys for the state of Texas are set to head back before the U.S. 5th Circuit Court of Appeals in New Orleans on Tuesday to defend the state’s new immigration enforcement law, Senate Bill 4, against charges that the measure is discriminatory and violates the U.S. Constitution.

But the Texas attorney general’s office enters the courtroom with some wind at its back after a three-judge panel of the court allowed parts of the controversial law to go into effect in late September.

Gov. Greg Abbott signed SB 4 into law in May, but several local governments, including the cities of Houston, Austin, San Antonio and El Cenizo, as well as Maverick and El Paso counties, filed suit to block the measure from going into effect.

As passed, SB 4 allows local law enforcement officers to question the immigration status of people they detain or arrest and punishes local government department heads and elected officials who don’t cooperate with federal immigration “detainers” — requests by agents to turn over immigrants subject to possible deportation — in the form of jail time and penalties that exceed $25,000.

U.S. District Judge Orlando Garcia in late August halted several parts of the bill, including the provision that requires jail officials to honor all detainers. He also blocked other sections that prohibit local entities from pursuing “a pattern or practice that ‘materially limits’ the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary. He did not block the part of the bill that says police chiefs, sheriffs and other department heads cannot forbid officers from questioning a person’s immigration status.

The state of Texas countered after Garcia’s ruling and asked a three-judge panel of the 5th Circuit to lift Garcia’s ruling while the case played out. The panel ruled the detainer provision could stand but the part that requires local jails to “comply with, honor and fulfill” detainers does not require detention based on every detainer issued. The panel also determined that law enforcement officers, including campus police, with “authority that may impact immigration” cannot be prevented from assisting federal immigration officers.

Attorneys will argue on Tuesday on whether Garcia’s initial injunction should be in effect until he rules on the substance of SB 4 in its entirety.

Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, which is representing several of the plaintiffs in the lawsuit, said among the issues is whether SB 4 violates the First Amendment.

Opponents say the law’s language prohibits law enforcement officers from speaking out against SB 4 or crafting policies that don’t focus on immigration enforcement. They also claim the law violates the Supremacy Clause of the U.S. Constitution, which states that immigration laws are a federal — not a state — responsibility.

Perales said issues related to the Fourth Amendment — prohibiting illegal search and seizure — could also arise because the previous panel allowed the bulk of the detainer provision to stand. At issue, she said, is “whether SB 4’s mandatory detainer provision could force counties — primarily [the government entities] with jails — to violate a person’s Fourth Amendment rights.”

During a conference call with reporters last week, MALDEF president and general counsel Thomas Saenz said there’s no way to predict when a ruling will be made after Tuesday’s arguments.

“They can take as long as they would like. In the meantime, Judge Garcia’s injunction, as modified by the [three-judge panel’s ruling], will remain the law until this panel makes its decision,” he said.

But the 5th Circuit’s eventual ruling might not be the last word, Saenz added, because either side could petition the U.S. Supreme Court to make the final determination on whether Texas can craft its own immigration-enforcement provisions and how far-reaching they can be.

A spokesperson in Texas Attorney General Ken Paxton’s office did not respond to an email seeking comment about Tuesday’s proceedings.

Tuesday’s debate will be the latest in what’s been a year-long battle over the legislation. Filed in November 2016 and deemed an “emergency item” by Abbott, the legislation was the subject of marathon public testimony in Senate and House committee hearings, where witnesses were overwhelmingly against the measure.

After the bill was signed, protesters took to the State Capitol on the last day of the regular legislative session and disrupted proceedings in the House to the extent that the lower chamber was forced to recess until the Department of Public Safety cleared the gallery.

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With no state-approved textbooks, Texas ethnic studies teachers make do

Ethnic studies teacher Elizabeth Close works with student Olivia Capochiano at LC Anderson High School in Austin. 

When 16-year-old Adán Zylberberg was in need of a book about Malcolm X for an ethnic studies project, Elizabeth Close handed him a copy of “Malcolm X: A Graphic Biography,” which brought to life the civil rights activist’s history in vivid black and white drawings.

It was not an unusual pick for Close’s students. During the six-week unit on civil rights, the ethnic studies teacher at Anderson High School in Austin taught her class from a wide array of sources: a college-level multicultural history book, teaching materials from the Southern Poverty Law Center, video clips from “The Daily Show,” contemporary news articles and old photos of segregated public facilities from the Library of Congress.

She doesn’t think all that could fit into one textbook.

“It’s a constant process to continue finding better sources, better connections, better ways to make it relevant to them,” said Close.

The Texas State Board of Education will vote this week on whether to approve two ethnic studies textbooks — a Mexican-American studies textbook and a Jewish Holocaust memoir — submitted in response to a board request last November to offer approved texts aligned to the statewide curriculum. Last year, the board rejected a different Mexican-American studies textbook proposal that advocates and academics decried as error-ridden and racist.

Tony Diaz, an activist who helped get last year’s book struck down, submitted “The Mexican American Studies Toolkit” in response to the board’s call last year. If the board votes yes, Diaz’s proposal would be the only Mexican-American studies textbook officially approved by the state.

But would Texas teachers actually use the book? That depends on the district.

Austin ISD developed its ethnic studies program over the past year, without additional state resources. But a smaller district might not have the staff or money to build a program from scratch, educators said. Texas does not require districts to choose textbooks the state board approves, but many administrators find it easier to use a state-vetted book rather than research other texts on their own to ensure they meet state standards, according to Texas Education Agency spokesperson Debbie Ratcliffe.

In 2010, Arizona state legislators banned ethnic studies for being too divisive, prompting a nationwide backlash that has, in turn, spurred enthusiasm for teaching the subject to high school students. (A federal judge later ruled the Arizona law violated students’ constitutional rights.) Many advocates cite a Stanford University study showing Hispanic and Asian students who took ethnic studies in San Francisco high schools improved their grades and attendance.

In Austin ISD, one of the only districts in Texas with a multi-ethnic studies program, administrators and teachers started last fall figuring out what credit students would receive and what skills and concepts students would be expected to learn, said Jessica Jolliffe, the district’s social studies supervisor.

This year, nine teachers across eight campuses in the district offer a general ethnic studies class, looking at the histories of different ethnic groups and races within the context of U.S. history.

Rather than try and shoehorn such a sprawling, nuanced topic into a single textbook, Jolliffe bought copies of Ronald Takaki’s “A Different Mirror: A History of Multicultural America” — a college-level ethnic studies resource — for each classroom, and then gave teachers a $500 budget to buy additional books to suit their classes’ abilities.

Ethnic studies teacher Elizabeth Close pulls together various texts from her own studies and experience to use as teaching materials.
Ethnic studies teacher Elizabeth Close pulls together various texts from her own studies and experience to use as teaching materials. Laura Skelding

Close found Takaki’s multicultural history too advanced for most of her students, so her bookshelf is also filled with graphic novels, memoirs and illustrated histories of various ethnic groups. Diaz’s book would not be particularly useful for her class, she said, since she already has a wealth of Mexican-American studies resources.

Yet for 15-year-old Chloe Hightower, having a traditional textbook would make Close’s ethnic studies class more convenient — and easier to explain to her friends, many of whom don’t even know the school offers it. “I would love the idea of having a book we could get to read instead of having to look up everything,” she said. “People are not trying hard enough to make ethnic studies something people hear about.”

That sentiment comes up a lot, Close said.

“The number one question from students is, ‘Why haven’t we learned about this before? Why did we have to wait for this optional class to get some of this?’” Close said.

The State Board of Education in 2014 rejected a push to approve ethnic studies as a new required class. Instead, the board put out a call for ethnic studies textbooks with the goal of making it easier for districts to offer relevant courses as general social studies electives. Since the board has not developed specific curriculum standards for ethnic studies courses, publishers can’t know how many districts will offer them or what form those classes will take so they are less likely to spend time and money writing relevant textbooks for them, said Christopher Carmona, Mexican-American studies professor at University of Texas at Rio Grande Valley.

“That’s one of many problems with the state board. They’re asking us to create textbooks for a course that doesn’t exist yet,” Carmona said.

He leads a coalition attempting to advance Mexican-American studies in high schools across the state. He took an informal survey showing only about 30 teachers in Texas offer Mexican-American studies courses, either as a stand-alone course or dual-credit course with a local university. Most are along the border or in urban areas with higher percentages of Hispanic students.

Carmona, along with a few other high school teachers and university academics, informally reviewed Diaz’s book to ensure it was academically sound. “There were a lot of things we had to fix,” he said.

The group added in sections detailing crucial parts of Mexican-American history, such as the Supreme Court decision to give Mexican-Americans equal protection under the Constitution and Mexican-American involvement in the Civil War. The scholars also removed existing sections, including one essay that references drinking beer, thought to be unsuitable for high school students.

An earlier official state review of the book found similar issues. Diaz said he is addressing the errors found by both groups.

When El Paso ISD teachers were deciding on a textbook this summer for a new Mexican-American studies program, they read through Diaz’s textbook proposal alongside several existing books already used in other districts. They decided not to use Diaz’s book, in part because they were not sure it would get approved this fall.

Instead, teachers unanimously picked “Chicano! The History of the Mexican American Civil Rights Movement” by F. Arturo Rosales, which they found on a textbook list for a course Houston ISD offers.

“They said the language is more student friendly, it has more pictures, it gave students a chance to actually expand on it,” said Velma Gonzalez Sasser, El Paso ISD student success coordinator.

This year, three high schools offer Mexican-American studies, and two middle schools have integrated Mexican-American studies into their Texas history classes.

Visiting a high school class recently, Gonzalez Sasser sat riveted as students discussed the 1917 El Paso-Juárez Bath Riots, which were sparked after a 17-year-old Mexican girl refused to submit to a toxic fumigation procedure federal officials were using to kill lice on Mexicans crossing the border and convinced others to do the same.

“I never heard of this in my life,” Gonzalez Sasser said. “I went to school here. I’ve lived in El Paso all my life. I’ve never heard of it.”

Disclosure: The University of Texas Rio Grande Valley has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.

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Dallas County sheriff Lupe Valdez emerges as potential challenger to Gov. Greg Abbott

Dallas County sherif Lupe Valdez speaks during the Dallas County Democratic watch party in Dallas, Texas on Nov. 8, 2016.

Dallas County Sheriff Lupe Valdez has emerged as potential Democratic challenger to Gov. Greg Abbott in 2018.

In an interview Monday, Valdez described herself as “in the exploratory process,” looking at the data for a potential run against the Republican incumbent. “I’ve been approached and I’m listening,” she said.

There are 35 days until the candidate filing deadline for the 2018 primaries, and Texas Democrats are looking for a serious contender to take on Abbott. Valdez said she believes it’s “time for a change” in GOP-dominated state government.

“Too much of one thing corrupts, and I’m a strong believer in a two-party system,” Valdez said. “I’m hoping that enough people are seeing that too much one-sided is not healthy for Texas.”

First elected in 2004, Valdez is serving her fourth term as sheriff of Dallas County, the second most populous county in the state and a Democratic stronghold. She is one of only a few female sheriffs in Texas and the only Hispanic female sheriff in the country.

Abbott and Valdez have a history. In 2015, they clashed over her department’s policy regarding compliance with federal immigration authorities — an issue that later came up in Travis County, which includes the state capitol of Austin. Those debates drove support behind the “sanctuary cities” bill that Abbott signed into law earlier this year. (The law is currently the subject of a legal challenge working its way through the courts.)

So far, only little-known Democrats have lined up to challenge Abbott, a group that includes Dallas businessman Jeffrey Payne and Tom Wakely, a former congressional candidate from San Antonio. In recent weeks, Andrew White, the son of late Gov. Mark White, has said he is considering a run. And Michael Sorrell, the president of Paul Quinn College in Dallas, continues to get mentioned as possible contender.

The filing period for next year’s elections opens Saturday and ends a month later.

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With Trump Cuts, Obamacare Enrollment is a Volunteer Affair in Rural Texas

In a back room of the Smithville Public Library, Ginger Redden passes around a donation jar to the volunteers gathered around the conference table. They take turns dropping coins and a few bills into the container, which is labeled “Lucky Pennies.” It’s November 1, the first day of open enrollment for health insurance through the Affordable Care Act, and all the funding to spread the word in Bastrop County is contained in the jar. So far, they’ve raised just over $100.

The group’s work is a direct response to attempts by President Trump to single-handedly dismantle the Affordable Care Act. After Congress failed to repeal Obamacare this year, Trump cut funding for advertising nationwide by 90 percent, slashed the budget for in-person assistance by 34 percent in Texas and cut the enrollment period in half.

“Ordinary people are doing the government’s job because Trump is trying to sabotage the ACA,” said Redden, a volunteer organizer with Bastrop County Indivisible, which is part of the progressive Indivisible movement that erupted in response to Trump’s election. It’s a job that’s particularly difficult in rural areas of Texas such as Bastrop County, home to 83,000 Texans. Redden and other volunteers are contending with spotty internet, few resources and a community that’s largely misinformed or reticent to utilize Obamacare. Just one location in the county, the Lone Star Circle of Care clinic, has ACA “navigators” who offer free help enrolling in health insurance. “We really have to go low-tech,” said Redden. That means volunteers posting fliers on community bulletin boards as well as in libraries, city hall, health clinics and churches.

“We’re in such a difficult place in Texas because the state doesn’t support people getting enrolled at all, either philosophically or financially,” said Lisa Goodgame, who is president of Indivisible Austin and works on communication for Cover Texas Now, a coalition of advocacy organizations working on boosting insurance coverage around the state.

Texas has the highest uninsured rate in the country, but the state rejected a Medicaid expansion under the ACA that would have covered more than 1 million Texans. Governor Greg Abbott has repeatedly called for the repeal of the health care law.

“Other states might be picking up the slack for missing funds, but Texas is not going to do that,” Goodgame said. “There’s really no money coming from anywhere for this.” The groups are recruiting a small army of volunteers, mostly clustered in cities, to help with ACA outreach.

ACA enrollment fliers  Sophie Novack

ACA enrollment volunteers around Texas are focused on five main messages: The ACA is still alive and well; financial help is available; the enrollment window is from November 1 to December 15; in-person assistance is still available; and everyone needs to shop around for coverage to find the best deal.

“Our biggest challenge right now is that there are so many misconceptions,” said Melissa McChesney, who works on health care policy for the left-leaning Center for Public Policy Priorities, which is part of the Cover Texas Now network. A recent national poll from the Kaiser Family Foundation found that just 15 percent of the uninsured know when open enrollment begins. “There’s a lethal combination of things: People are not sure the law is there; they have only six weeks to enroll; there are not funds or resources to get the word out that the law is still here and affordable for people,” McChesney said.

Simply figuring out where to do outreach has proved challenging. Bastrop County volunteers are targeting high-traffic areas with signs and fliers. At the library meeting, the volunteers celebrate a minor victory — the Walgreens is allowing a stack of fliers at the pharmacy register.

One man suggests asking at the local hospital.  “Quick, while we still have one,” a woman responds.

The Dollar Store? “They’ll shut us out.”

A thrift store run by nearby churches? “I don’t expect to get a yes.”

The advocates wish health insurance wasn’t political, especially since one in every five Bastrop County residents is uninsured, twice the rate of the United States overall. But in the solidly red Texas county where Trump won with 57 percent of the vote, it’s hard to separate Obama’s name from his signature policy. “We go to school, church, work, with people that also see us on the bridge protesting,” said Michelle Rutherford, a volunteer with Bastrop County Indivisible. “We have to be concerned about our safety when we do outreach.”

The group jokes like old friends, but they’ve only just met after the election last year. The volunteers have come out of the woodwork to form a kind of underground progressive community, ready to fight anything the Trump administration throws their way. ACA outreach is just the latest challenge.

“It’s all part of the resistance,” said Robin Rieck, another volunteer. “They try to sink it, we’ll try to save it.”

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Documents: Texas National Guard Installed Cellphone Spying Devices on Surveillance Planes

The Texas National Guard last year spent more than $373,000 to install controversial cellphone eavesdropping devices in secretive surveillance aircraft.  

Maryland-based Digital Receiver Technology Inc., or DRT, installed two of its DRT 1301C “portable receiver systems” in National Guard aircraft in partnership with the Drug Enforcement Administration, according to a contract between the Texas National Guard and the company. The contract states that the dirt boxes, as they’re often called after the company’s acronym, are for “investigative case analytical support” in counternarcotics operations and were purchased using state drug-asset forfeiture money.

The DRT logo for the technology.  via FOIA

Dirt boxes mimic cellphone towers by tricking every smartphone within a geographic area of up to one-third of a mile to connect with the technology, usually without cellphone users or telecom companies ever knowing about it. Also known as cell-site simulators, the devices can be used from land or air and are capable of intercepting the user’s location, phone numbers dialed, text messages and photos as well as recording or listening to phone calls.

Privacy and civil liberties advocates have called the use of dirt boxes a “digital dragnet,” because it’s nearly impossible for the government to avoid intercepting personal information from innocent cellphone users when pursuing investigative targets.

According to the contract documents obtained by the Observer, the eavesdropping devices were installed in two RC-26 surveillance planes used for counternarcotics operations. At one time, the RC-26s reportedly operated under a front company called Air Cerberus, but have since converted to military registrations, which generally mask their flight routes and unique tail numbers.

In a 2014 story, the Wall Street Journal revealed that the U.S. Marshals Service had been secretly using dirt boxes from a small Cessna aircraft to locate fugitives. Equipment and training was supplied by the CIA, but some officials inside the U.S. Justice Department were concerned that the activity was illegal. The revelations spurred numerous complaints from civil liberties advocates, including the Electronic Frontier Foundation (EFF), the ACLU and the Electronic Privacy Information Center, as well as lawmakers in Washington, D.C.

 

 

Law enforcement’s use of the technology is usually considered legal when used against Americans with a warrant. The Texas Department of Public Safety has made similar purchases for covert surveillance equipment from a DRT competitor, Harris Corp., which offers comparable technology called Stingrays.

But the Texas National Guard is a military force under the governor’s command, not law enforcement. It’s unclear under what legal authorities the State Guard would be operating to conduct electronic eavesdropping. In 2015, the Justice Department issued guidelines for federal law enforcement agencies requiring that a probable cause warrant be obtained from a judge before using such technology. The Texas National Guard refused to explain to the Observer what steps, if any, it takes to secure a warrant prior to deploying the devices, or where the dirt boxes are being used.

Democratic state Representative César Blanco, a former Navy intelligence analyst who is the vice chairman of the Texas House committee that oversees the Texas National Guard, told the Observer that he wasn’t aware of the purchases, which haven’t previously been made public.  

Blanco said the purchases concern him and he wants the Legislature to develop a committee modeled after the House and Senate intelligence committees in Congress, which oversee the sprawling federal intelligence bureaucracies like the FBI, CIA and NSA.

“There are really big privacy and constitutional due-process concerns with the use of this technology,” Blanco said. “If it’s useful to authorities, then I completely understand that. … [But] if  the Texas National Guard want to get into the business of surveillance and utilizing intelligence and classifying intelligence, there’s got to be an oversight body that responds to the citizens of Texas.”

Because law enforcement agencies often sign nondisclosure agreements with companies such as DRT or Harris Corp., it’s difficult to determine how widely the surveillance equipment is used. The ACLU has identified 24 states, including Texas, where cell-site simulators are used by law enforcement.

Members of the Texas National Guard operating on a border levee in Hidalgo County in March 2017.  Scott Nicol

One possibility is the dirt boxes are being used at the Texas-Mexico border, where the Texas National Guard has participated in border security and counternarcotics missions since 1989. Currently, there are 145 Army National Guard soldiers and 70 Air National Guard personnel working in tandem with state, local and federal law enforcement on counternarcotics operations.

But when asked to confirm details about the purchases, including whether the cell-site simulators are being used at the border, the Texas National Guard provided only a short written response: “In regard to your questions, the items you are asking about are not associated with the Operation Secure Texas mission.”

Operation Secure Texas is just one of many missions the Texas National Guard has participated in along the border. Asked whether the National Guard has the legal authority to obtain a warrant to conduct arrests or surveillance, a spokesperson declined to provide someone from the agency to answer questions and instead responded with written answers: “The Texas National Guard’s role along the border has always been to serve as a force multiplier and to deter and refer. Our current supporting roles do not include arrest or law enforcement authorizations.”

Austin attorney Scott McCollough, who specializes in technology and serves on the board of the Austin chapter of EFF, said that if military forces are using the surveillance devices without a warrant, innocent people affected by it might have grounds for a privacy lawsuit against the government.  

McCollough also wondered whether any information collected by the Texas National Guard could be used to prosecute criminals in court if the underlying technology is considered legally questionable.

“These DRT boxes are far more capable than the old Stingrays,” McCollough said, “The old-style Stingrays were not able to capture content. Guess what? The DRT box is. … These newer ones get everything.”

Stephanie Lacambra, a staff attorney at EFF’s national office in San Francisco, said that so much secrecy has surrounded the use of the technology across the country that the public knows too little about what personal identifying information is being collected by the government when it deploys such tools and how the information is being handled. To shield the privacy of citizens, officials should commit to guidelines and make them public, she said.

“Without a clear public policy posted on how they’re going to be allowed to use these kinds of devices, there’s nothing to stop them from using a cell-site simulator in a suburb of Dallas any more than at the border,” said Lacambra. “And people should be legitimately concerned about that.”

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Meet Nueces County’s New DA, a Self-Professed ‘Mexican Biker Lawyer Covered in Tattoos’

Mark Gonzalez at the Nueces County District Attorney’s Office.  Courtney Sacco

Early this year, border agents ran a name-check and wound up briefly detaining Mark Gonzalez as he traveled home to Corpus Christi after a vacation in Mexico. That’s why Gonzalez says he gave the Texas cop that stopped him a couple of weeks later this disclaimer: “When you run my name, I’m probably going to be listed as a gang member. I’m also the DA of Nueces County. Do whatever you want with that information.”

When Gonzalez ran for DA last year, he personified the label “nontraditional candidate” — a defense lawyer with the words “not guilty” tattooed across his chest, someone whose connection to the Calaveras Motorcycle Club even landed him in a police database of known gang members. He vowed to become a lawyer at 19, after he pleaded guilty to drunk driving. The guy next to him in court, who could afford a private lawyer, got the same charge dismissed.

Gonzalez’s office no longer takes misdemeanor marijuana cases (a $250 fine and a drug class gets charges dismissed) and even worked with a local women’s shelter on a pretrial diversion program for people accused of domestic violence for the first time. He spoke with the Observer about his new approach to criminal justice in Corpus Christi.

Q: During your campaign, you talked about needing to restore trust and fairness in law enforcement. What did you mean?

It’s why one of our main objectives now is transparency. We don’t want anybody to say that prosecutors were hiding the ball or didn’t disclose something. We’re open with defense attorneys about what we find, whether it’s good, bad or ugly for us. That’s also how we try to deal with media. As much as we can be, we’re open about what evidence we have, and we only go forward on a case if we can prove it. If there’s a case there, we’ll build it. But we’re not hunting for convictions. It’s about securing justice.

You’ve only been on the other side of law enforcement as a defense attorney. Any trouble getting police to trust and work with you?

As far as the higher-ups, I haven’t had any struggle with them. But I can tell you that the patrolmen, they’re the ones that may have the strongest criticisms of me and the hardest feelings against me just because I’m this defense attorney and a biker.

For the most part, our work here at the DA’s office speaks for itself. And some of those who didn’t trust me at the beginning, I think they’re starting to come around. I get approached all the time by patrolmen telling me, “We were wrong about you.” We’re gaining their trust and confidence, and eventually the work will speak for itself. That’s all that I ask.

What does a reform-minded criminal justice system look like?

I think that every DA has their own ideals and values and idea of what that looks like. For us, it’s about fairness and transparency. But I think in a lot of other ways, these reforms are just about being smart and having common sense. People who have proven they’re dangerous need to stay in jail. But low-level misdemeanors? They don’t need to be there. We need to find another way to deal with those people and that behavior. On one hand, we need to look at the jail’s repeat visitors and see if there’s anything we can do to stop that cycle. But we also need to focus our resources on people who are actually out there criminalizing people over and over again and put them away.

You have a criminal record. You’re the first from your family to go to college. What’s the impact of having someone from your background in power in the criminal justice system?

I hope it brings some humanity back to the office. Realize, we’re not here to destroy people’s lives. We’re here for justice, and sometimes that’s not always going to require a conviction. Just because we can give somebody a conviction doesn’t mean we always should and need to. That’s why we need people who can take a step back and consider their own life experiences and other perspectives. That defendant standing there was me once. So when I look at a case, I’m also thinking, is there a way we can make this person better, some chance we can give them? Don’t get me wrong, some people are going to get an opportunity and mess it up and eventually run out of chances. But we can’t lose sight that there are people and situations where we can help.

What role do prosecutors play in either fixing or exacerbating the system of mass incarceration?

The DA is probably the most important position in every county courthouse across the state. If you have a good prosecutor or a smart prosecutor with common sense, they can influence more widespread change than a judge or anyone else. We decide what cases to take and how to prosecute them. It starts and ends here.

If you have a prosecutor who’s fair and honest and open to diversion, your race, gender and economic circumstances should not play a role in the outcome of your case. Period. It’s the prosecutor who gets to decide whether to treat those cases the same. It shouldn’t matter if you have a high-powered lawyer who’s friends with someone at the DA’s office versus the new guy who just got out of law school who might not have those same relationships at the courthouse. As a prosecutor, you must treat them the same.

You’ve taken pretrial intervention programs beyond just drug cases. Why try it with domestic violence?

For the longest time, there’s been a domestic violence problem in our community. The shelter’s been open for 34 years, and I don’t see them ever closing. Something obviously isn’t working.

Someone would have a misdemeanor case, and then it would happen again and again. There was no intervention after that first incident, just punishment. Now, working with the shelter, we’re making contact with people in these abusive partnerships after that first time to give them the education they need. If defendants sign a confession and attend a six-month family violence class, that charge can be dismissed. And this isn’t something I take credit for — it was the women’s shelter counselors who helped us with this. The goal is to make sure the abuse stops, but also so that it doesn’t escalate into a felony.

What’s your stance on the death penalty?

I am not anti-death penalty, but I wouldn’t call myself an advocate for it. My two first assistant DAs, one is very anti-death penalty and thinks the government should never play a role in ending someone’s life. I have another assistant who thinks an eye for an eye is the way to go. And I guess I’m in the middle. Now I want to see what our community decides. I’m about to present a death penalty case very soon. When the jury makes their decision, it will help us figure out how we handle those cases in the future.

What role do reform-minded DAs play now that federal justice policy has made a 180-degree shift on things like drug charges, mandatory minimums and pot?

Much of what they’ve done hasn’t had an effect on us yet and probably won’t. Nobody governs us and nobody really tells us what to do. We have discretion in how we run this office. But you can already see we’re taking very different approaches that could become a problem in the future.

When it comes to things like mandatory minimums and how you prosecute drug crimes and what to do with marijuana, I think common sense is honestly going to win out on that in the long run. On marijuana, I think legalization is where we’re headed, because honestly it’s the smartest thing to do. We still live in Texas, so it may be hard to overcome some of that old thinking when it comes to drugs. But I think the economic gains and economic efficiency will eventually win people over if the other arguments don’t.

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The Brief: The deadliest mass shooting in Texas history

Emergency vehicles outside First Baptist Church in Sutherland Springs on Sunday, Nov. 5, 2017, where a mass shooting has taken place. 

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What you need to know

At least 26 people walked into a Central Texas church Sunday morning and never returned home.

Sutherland Springs, the tiny San Antonio-area town home to around 650 residents, is now also home to the deadliest mass shooting at a place of worship in U.S. history — and the deadliest mass shooting in Texas history. Here’s what you need to know:

• The gunman killed a 5-year-old, a 72-year-old and at least 24 others between those ages at First Baptist Church of Sutherland Springs. Around 20 others were taken to nearby hospitals with “minor” to “very severe” injuries. Law enforcement didn’t officially identify the gunman Sunday and said it was too early to speculate on a motive for the killings but U.S. Rep. Henry Cuellar, D-Laredo, who represents the area, told The Texas Tribune that the shooter was Devin Kelley of Comal County. The gunman fled the scene after firing inside the church and was found dead inside a car, officials said, adding it was unknown whether he committed suicide. 

• Sutherland Springs has a population of around 643 — so if all of the victims were locals, as Tribune reporter Alexa Ura points out, at least 4 percent of the town’s population was killed in Sunday’s shooting. “We’re not sure if that number will rise or not,” Gov. Greg Abbott said Sunday night at a news conference. “This will be a long, suffering mourning for those in pain.” Cuellar said the church’s 14-year-old daughter and a pregnant woman were among the victims.  

• Up until Sunday, the worst mass shooting in Texas history happened in 1991, when a 35-year-old man drove his truck into a Luby’s in Killeen and killed 23 people before fatally shooting himself. The deadliest mass shooting in modern U.S. history happened last month, when a 64-year-old fired on a crowd of music festival attendees in Las Vegas and killed more than 50 people. Two years ago, 21-year-old Dylann Roof shot and killed nine people inside a historically black church in Charleston, South Carolina. And exactly eight years ago on Sunday, an Army psychiatrist shot and killed 12 soldiers and 1 civilian at Fort Hood. CNN has a list of the deadliest mass shootings between 1949 to the present.

• Prayers — and some calls for tighter gun control laws. “May God be w/ the people of Sutherland Springs, Texas,” said President Donald Trump on Twitter. Other Texas officials, such as Attorney General Ken Paxton and state Sen. Donna Campbell, R-New Braunfels, echoed similar sentiments — but many Democrats said the deadly shooting is evidence that tighter gun ownership laws are needed. “Once again gun violence destroys lives, while this Congress, owned lock, stock, and barrel by the NRA refuses to act,” said Congressman Lloyd Doggett, D-Austin, on Facebook. We have a compilation of tweets from Texas officials on the Sutherland Springs shooting here.

• Trump called the shooter a “very deranged individual” while speaking at an event in Japan. “I think mental health is your problem here,” Trump said in a video by the Associated Press. “We have a lot of mental health problems in our country — as do other countries — but this isn’t a guns situation. I mean, we could go into it but it’s a little bit soon to go into it.”

Other stories we’re watching today:

• Texas Tribune CEO Evan Smith is talking with state Rep. John Zerwas, R-Richmond, at The Austin Club in Austin this morning. Join us for a conversation with the newly announced candidate for speaker of the Texas House, or watch a livestream here at 8.

• The Texas Senate Education Committee is holding a hearing in Houston today to discuss Hurricane Harvey recovery efforts for schools. Follow Texas Tribune reporter Aliyya Swaby for updates.

Tribune today

• Ross Ramsey says it’s easiest to judge public officials the same way you judge folks at work: Are they doing a good job?

• How has voting in Texas changed over the years? Here’s what several veteran voters told us.

• Texas has a host of high-profile legal battles in the works. We’re tracking some of the most significant cases.

• Counterprotesters at last year’s Houston rally say their presence wasn’t influenced by a Russian Facebook ad but by the white supremacists who said they’d be there.

• The filing deadline for Texas’ 2018 primaries is coming into sight — and so are concerns among some prominent Democrats about their party’s statewide ticket.

• There’s a new layer in the debate over protesting the national anthem at Texas’ grade schools. Tell us your story.

• State Sen. Charles Perry and state Reps. Dustin Burrows and John Frullo talked with us on Friday about the upcoming race for speaker of the Texas House. Did you miss the event? Check out our recap.

• The Trump administration wants the U.S. Supreme Court to invalidate a lower court ruling that allowed an undocumented teen under federal custody in Texas to get an abortion.

• Another undocumented immigrant — Rosa Maria Hernandez, a 10-year-old who was detained after gallbladder surgery in Texas — is set to be reunited with her family.

Pencil us in

Texas Tribune CEO Evan Smith is interviewing state Rep. Dawnna Dukes, D-Austin, at The Austin Club on Nov. 7.

What we’re reading

• Early voter turnout in Hidalgo County nearly doubled this year in comparison to the last constitutional amendment election in 2015. (The Monitor)

• Title IX experts who spent nine months investigating how Baylor University responded to sexual violence reports have verified the school’s ongoing corrective actions. (Waco Tribune-Herald)

• Julián Castro will decide whether to run for president by the end of 2018. (The Austin American-Statesman $)

• Cedar Hill City Council members voted to pump an estimated $160 million into a new downtown development. They failed to mention that a handful of town officials — the mayor included — and their families owned at least 25 properties inside that chunk of land. (The Dallas Morning News $)

• A small charter school in Houston pays its superintendent around $250,000 and owns a condo it used taxpayer money in 2011 to buy that’s valued at $450,000. (The Houston Chronicle $)

Photo of the day

Mourners pray during a candlelight vigil for the victims of the Sutherland Springs First Baptist Church shooting on Nov. 5, 2017. The vigil was held across the street from the church. Photo by Robin Jerstad for The Texas Tribune. See more photos on our Instagram account.

Quote to note

“I rule it out 99 percent.”

— Wendy Davis, the 2014 Democratic gubernatorial nominee, on whether she plans to run for governor again next year.

Feedback? Questions? Email us at thebrief@texastribune.org. As always, thanks for choosing The Brief — if you liked what you read today, become a member or make a donation here

Correction: An item in Friday’s version of The Brief misspelled Jenifer Sarver’s name. 

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Counterprotesters say white supremacists, not Russian Facebook ads, drew them to rally

About a dozen people protested against what they called the threat of radical Islam, at the Islamic Da'Wah Center on Saturday, May 21, 2016, in Houston. They were met by several dozen counter-protesters.

When Ramon Mejía learned about an anti-Islam demonstration in Houston last year, he organized a counterprotest — but he said he didn’t get the idea from a Russian Facebook page.

Last week, federal lawmakers made public that two Russian Facebook pages organized dueling rallies in front of the Islamic Da’wah Center in Houston. One ad from Russian-controlled Heart of Texas announced a May 21, 2016, rally to “Stop Islamification of Texas,” while another announced a “Save Islamic Knowledge” counterprotest.

Counterprotesters say their presence wasn’t influenced by the Russian Facebook ad but by the white supremacists who said they would attend.

“It wasn’t Heart of Texas that we were organizing against. We were organizing against actual neo-Nazis that reside in our community, people we actually know,” Mejía said. “The Russians are just capitalizing on what is already existing in our society.”

Hannah Bonner, a United Methodist pastor who attended the counterprotest, said there’s a community in Houston that’s now accustomed to responding to similar events led by hate groups. The protesters at the Da’wah Center had already been active and organized before the Heart of Texas ad.

“We have to respond repeatedly in different locations and at different times, and in this case, the Russians selected the time and place, but they did not create the fear or the white supremacy — they just created an opportunity,” Bonner said. “We can’t blame Russia for the problem with racism that we have.”

Mejía said he was especially moved to organize when he saw a White Lives Matter leader in Houston, Ken Reed, was going to attend the anti-Islam protest.

According to the Anti-Defamation League, Reed is the executive director of a small but established neo-Nazi group in Houston called the Aryan Renaissance Society. He’s led similar White Lives Matter events in 2016 outside the Houston NAACP, at the Texas Capitol and outside the Anti-Defamation League office.

“This is the only instance we know of where extremists were actually motivated to show up to a ‘Russian’ event,” Mark Pitcavage, an Anti-Defamation League expert on right-wing extremism, said in a direct message on Twitter.

A NewsFix report from the day of the protest said Reed “wouldn’t identify as a member of Heart of Texas.”

“This is America. We have the right to speak out and protest, and that’s what we’re doing. We feel that Texas, our great state, and the United States is being threatened by the influx of Islam,” Reed said, according to the report.

Attempts to reach Reed and other White Lives Matter organizers were not immediately successful.

Steven Orozco, another demonstrator at the anti-hate rally, called the Russian strategy for enflaming racial tensions “smart and brilliant.”

“If that’s what happened, kudos to Russia for pulling off something that’s honestly easy to detect,” Orozco said. “As far as racism in the United States, in that case it’s a very effective tool.”

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