Category Archives: National

Abbott calls White House’s latest disaster aid request “completely inadequate”

President Donald J. Trump and Gov. Greg Abbott.

Texas Gov. Greg Abbott on Friday panned the White House’s latest disaster aid request, calling it “completely inadequate” for Texas’ needs in the wake of Hurricane Harvey.

Unveiled earlier Friday, the request seeks $44 billion from Congress to assist with the Harvey aftermath, as well as the recoveries from other recent hurricanes in Florida, Puerto Rico and the U.S. Virgin Islands. While not final, the number is far less than the $61 billion proposal that Abbott had submitted for Texas alone to Congress last month.

“What was offered up by Mick Mulvaney and [his Office of Management and Budget] is completely inadequate for the needs of the state of Texas and I believe does not live up to what the president wants to achieve,” Abbott said at a Capitol news conference called to unveil a $5 billion grant from the U.S. Department of Housing and Urban Development.

“The president has told me privately what he’s said publicly, and that is that he wants to be the builder president,” Abbott added. “The president has said that he wants this to be the best recovery from a disaster ever.”

Abbott said the $44 billion request is less than what was offered in the aftermath of Hurricane Sandy — which hit the East Coast in 2012 and was “half the storm of what Hurricane Harvey was.” If Trump wants to see through the “biggest and best recovery ever,” Abbott added, the effort is “going to necessitate both more funding but also better strategies.”

Abbott was joined at the news conference by U.S. Sen. John Cornyn, R-Texas, who also made clear he was less than pleased with the White House’s latest disaster aid request. Asked whether he was ready to free up a top OMB nominee whose confirmation he has been blocking as leverage to secure more Harvey aid, he replied: “I’m not satisfied. We have to have further conversation.”

At the press conference, Pam Patenaude, Deputy Secretary for the U.S. Department of Housing and Urban Development, announced that the department will award Texas $5 billion for Harvey recovery. The money will be used to rebuild hard-hit areas throughout the state and be overseen by Texas Land Commissioner George P. Bush. Apart from the new grant, Bush’s General Land Office is currently managing six other community development block grants that total about $4 billion.

Bush said the preliminary plan of action for the $5 billion HUD grant is complete. As of now, the money is planned to go toward temporary housing and fixing damaged homes.

“We are now tasked with the largest housing recovery in American history,” Bush said.

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A “glitch” on U.S. Sen. John Cornyn’s website asked for visitors’ Social Security numbers

U.S. Sen. John Cornyn joins fellow Texas Sen. Ted Cruz and Tribune CEO Evan Smith for the closing day of The Texas Tribune Festival on Sept. 24, 2017.

An error on U.S. Sen. John Cornyn‘s website last night required constituents to submit their Social Security number when filling out the comments box on the website.

Normally, Cornyn’s website only requires people to submit their Social Security numbers when they are requesting help with a federal agency. The error last night required it, along with their name, address and contact information, even when leaving the Texas Republican a comment.

A spokesperson for Cornyn said the required field was a “glitch.”

“It was an inadvertent glitch and our website vendor has fixed it,” Drew Brandewie wrote in an email.

As of Tuesday morning, the field has been removed from Cornyn’s website on the “Discuss an issue” page but remains if constituents are seeking help with an agency.

Most other members of the Texas delegation in Congress have similar forms to submit comments on their webpages but do not require a Social Security number for those solely trying to contact the member’s office. However, many use a specialized privacy form that requires a Social Security number for those requesting help with a federal agency.

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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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‘Sean Hannity Show’ fans smash Keurig brewers over pulled ads

Supporters of conservative host Sean Hannity’s Fox News Channel show are responding to a decision by Keurig to stop advertising on the show by smashing Keurig coffee makers.

The company announced Saturday it had pulled advertising from “Hannity” after several Twitter users questioned the company’s support for the host, citing Hannity’s coverage of sexual misconduct allegations against Republican U.S. Senate candidate Roy Moore of Alabama. Moore is accused of having sexual contact with a 14-year-old girl four decades ago when he was in his 30s.

It’s unclear when Keurig stopped advertising on “Hannity.” The Waterbury, Vermont, company didn’t respond to a request for further comment Monday.

The move prompted several people to destroy Keurig products in protest and post videos to social media. Blogger Angelo John Gage promoted what he called the “Keurig Smash Challenge” while posting a video of himself taking a hammer to his brewer.

Another user posted a video of a Keurig brewer being tossed to the ground from the second story of a building. Hannity commented “love it” while retweeting one video of a man teeing off on a coffee maker with a golf club.

Liberal media watchdog group Media Matters for America has been putting public pressure on Hannity’s advertisers for months. The group’s president, Angelo Carusone, told The Associated Press it again called for companies to stop supporting Hannity’s program after the Moore allegations came to light Thursday in a Washington Post story.

Carusone said that while he feels bad for Keurig, Hannity’s encouragement of the protest against the company “demonstrates to other advertisers to run for the hills.”

Several other brands, including DNA testing company 23 and Me , women’s clothing label ELOQUII , food delivery service Hello Fresh and natural supplement maker Nature’s Bounty also said they don’t advertise on “Hannity.”

Nature’s Bounty said it hasn’t advertised on the show since the summer but declined to give a reason. Hello Fresh said it last advertised on “Hannity” in August and added that it doesn’t advertise on certain shows “for a variety of reasons.” It’s unclear if 23 and Me and ELOQUII previously advertised on “Hannity,” and the companies didn’t immediately return requests for comment.

Realtor.com posted on Twitter on Saturday that it doesn’t run ads on “Hannity” and wouldn’t do so in the future. That tweet was later deleted, and the company posted a statement on its website Sunday stating it would “continue to place ads across a broad range of networks, including Fox News and its top shows.”

Realtor.com declined comment on the reason for the change.

Realtor.com and Fox News are both owned by News Corp.

Fox News didn’t immediately return a request for comment Monday.

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Another woman accuses former President George H.W. Bush of groping

Another woman has stepped forward to accuse former President George H.W. Bush of inappropriately touching her.

Roslyn Corrigan told Time magazine that she was 16 when Bush grabbed her buttocks as she posed for a photo with him in 2003 at a gathering of CIA officers north of Houston. She attended the event with her mother and father, who was an intelligence analyst.

“My initial action was absolute horror. I was really, really confused,” she told the magazine. “The first thing I did was look at my mom and, while he was still standing there, I didn’t say anything. What does a teenager say to the ex-president of the United States? Like, ‘Hey dude, you shouldn’t have touched me like that?'”

A spokesman for the 41st president, Jim McGrath, said in a statement Monday that Bush regrets any offensive actions.

“George Bush simply does not have it in his heart to knowingly cause anyone distress, and he again apologizes to anyone he offended during a photo op,” he said.

Time spoke with seven people who said they had been told by Corrigan about the encounter in the years afterward.

Corrigan is at least the fifth woman to claim Bush groped her. Time reports that a sixth woman, a retired journalist in Pennsylvania, posted to Facebook last month that Bush touched her from behind during a 2004 photo opportunity.

The stories came to light after television actress Heather Lind said last month that Bush, now 93, touched her from behind and told a dirty joke while they were posing for a 2014 photo. McGrath at the time explained that Bush has been in a wheelchair for about five years “so his arm falls on the lower waist of people with whom he takes pictures.” Bush, who served as president from 1989 to 1993, has vascular parkinsonism, a rare syndrome that mimics Parkinson’s disease, and he uses a wheelchair for mobility.

“To try to put people at ease, the president routinely tells the same joke – and on occasion, he has patted women’s rears in what he intended to be a good-natured manner,” McGrath said.

Bush was standing alongside Corrigan for the photo taken in 2003. McGrath’s statement Monday did not elaborate.

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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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Police dogs trained to ignore marijuana

Special K-9 Unit training dogs in San Leon

Police dogs in Rifle, Colorado, are being trained to ignore marijuana in order to sniff out other drugs.

Departments all over the state will soon be taking part in this program, and the older dogs, trained to track pot, will soon be phased out.

Rifle police officer Garrett Duncan spent the last 10 years working alongside their top drug-sniffing dog, Tulo. Duncan said Tulo is so good he even has his own publicity pictures.

Of course, as they say, you can’t teach an old dog new tricks and it seems Tulo cannot be retrained to ignore marijuana.

Now Jax and Makai will have their moment. These young and very cute puppies can sniff out drugs without getting excited over the smell of pot.

“We’re just not going to train them with marijuana so they won’t know the odor. They won’t have any reason to indicate or tell us there is marijuana around cause they won’t know,” Duncan said.

Read more: http://on9news.tv/2m7yXHz

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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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Trump in Japan…

So, Donald went to Japan, where he made a speech in which he said:

“Try building your cars in the United States instead of shipping them over.”

“Is that possible to ask? That’s not rude. Is that rude? I don’t think so.”

The guy is a genius…

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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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Rick Perry ties fossil fuel use to sexual assault prevention

Secretary of Energy Rick Perry testifies at a Committee on Energy and Commerce hearing in Washington, D.C. on Oct 12, 2017.

U.S. Secretary of Energy Rick Perry said Thursday fossil fuels can help prevent sexual assault because the “lights are on.”

His comments came during an event hosted by NBC News and Axios in Washington, D.C., where Perry was to lay out the administration’s upcoming energy policy priorities.

The former Texas governor brought up sexual assault while describing a recent trip to Africa, where he was told “people are dying” because they lack access to energy, according to a transcription by The Hill newspaper.

“It’s going to take fossil fuels to push power out into those villages in Africa, where a young girl told me to my face, ‘one of the reasons that electricity is so important to me is not only because I’m not going to have to try to read by the light of a fire and have those fumes literally killing people.’”

“But also from the standpoint of sexual assault, when the lights are on, when you have light that shines, the righteousness, if you will, on those types of acts,” Perry continued.   

Perry has been pushing the expansion of fossil fuels since he assumed the position as energy secretary.

The Sierra Club, an environmental group that generally supports Democratic candidates, called for Perry’s resignation following the interview.

“It was already clear that Rick Perry is unfit to lead the Department of Energy, but to suggest that fossil fuel development will decrease sexual assault is not only blatantly untrue, it is an inexcusable attempt to minimize a serious and pervasive issue,” the Sierra Club said in a statement.

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A Russian Facebook page organized a protest in Texas. A different Russian page launched the counter-protest.

Screenshots released by federal lawmakers of Russian-linked Facebook pages promoting anti-Muslim and pro-Muslim rallies on the same day in 2016 in Houston.

Federal lawmakers on Wednesday released samples of 3,000 Facebook ads purchased by Russian operatives during the 2016 presidential campaign. The ads conveyed the wide range of influence Russian-linked groups tried to enact on Americans – but one set of ads in particular hit close to home.

Last year, two Russian Facebook pages organized dueling rallies in front of the Islamic Da’wah Center of Houston, according to information released by U.S. Sen. Richard Burr, a North Carolina Republican.

Heart of Texas, a Russian-controlled Facebook group that promoted Texas secession, leaned into an image of the state as a land of guns and barbecue and amassed hundreds of thousands of followers. One of their ads on Facebook announced a noon rally on May 21, 2016 to “Stop Islamification of Texas.”

A separate Russian-sponsored group, United Muslims of America, advertised a “Save Islamic Knowledge” rally for the same place and time.

On that day, protesters organized by the two groups showed up on Travis Street in downtown Houston, a scene that appeared on its face to be a protest and a counterprotest. Interactions between the two groups eventually escalated into confrontation and verbal attacks.

Burr, the committee’s chairman, unveiled the ads at a hearing Wednesday morning and said Russians managed to pit Texans against each other for the bargain price of $200.

“You commented yesterday that your company’s goal is bringing people together. In this case, people were brought together to foment conflict, and Facebook enabled that event to happen,” Burr said to Facebook general counsel Colin Stretch.

“I would say that Facebook has failed their goal,” Burr added. “From a computer in St. Petersburg, Russia, these operators can create and promote events anywhere in the United States in attempt to tear apart our society.”

Stretch told the Senate Intelligence Committee that ads such as these were most likely directed at different audiences.

Both the U.S. House and U.S. Senate Intelligence committees met with representatives from Google, Facebook and Twitter at the Capitol Wednesday.

In a press conference following the House hearing, the top Democrat on the committee, Adam Schiff of California, said lawmakers hope to make all of the Russian-bought Facebook ads available to the public in the next few weeks.

“People really need to see just how cynical this campaign really was and how this operation directed by a former KGB operative who is now the president of Russia was designed to tap into these really provocative and divisive issues here in the United States,” Schiff said.

Going forward, Schiff said Congress will consider new regulations of political advertisements. He said the question is how they will adapt these oversight measures to social media platforms.

U.S. Rep. Mike Conaway, R-Midland, is currently leading the House Intelligence Committee’s investigation into election meddling by Russia.

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24 Texas Dairy Queens closing after franchise company files for bankruptcy

A Dairy Queen franchise company with 70 locations across Texas, New Mexico and Oklahoma has filed for bankruptcy.

The company, Vasari LLC, has about 900 employees, according to the court filing.

So far, 29 Dairy Queen locations have closed, including 24 in Texas, three in Oklahoma and two in New Mexico.

The closest Texas location run by the company is in Conroe on 1612 North Frazier Street.

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USDA Rolls Back ‘Fair Practice’ Rule That Would’ve Protected Texas Chicken Farmers

They get lured in by the promise of an easy, steady paycheck. Just raise some chickens, keep them healthy, and the company — Tyson, Sanderson Farms or some other industrial poultry processor — will take care of the rest, farmers are told.

They sign an exclusive contract and take out a loan to build several 24,000-square-foot chicken houses on their land. At first, everything’s fine. But eventually the growers, as they’re known in the industry, run into trouble, said Mike Weaver, a Pilgrim’s Pride contract farmer in West Virginia.

Weaver, who is also the president of the Organization for Competitive Markets, an antitrust think tank in Nebraska, told the Observer that sometimes the companies demand expensive improvements be made to the chicken houses, such as new heating or feeding systems that growers can’t afford. Sometimes entire flocks of up to 100,000 birds inexplicably die, he said. Many growers see their pay slashed and their expenses skyrocket. It gets so bad that some contractors have to take a second or third job just to make loan payments on the chicken houses. Some declare bankruptcy; at least one committed suicide.

A rare federal lawsuit allowed to go forward in Oklahoma this year bears out allegations made by Weaver and other farmers.

Mike Weaver

“Your choices are to lose your farm or raise their chickens,” Weaver said. “The bank’s beating door your door and you’re gonna have to declare bankruptcy or something else drastic. Sometimes [farmers] think it’s hopeless.” He said farmers are frequently taken advantage of, but due to nondisclosure agreements in the contracts signed by growers, many outside of the industry are unaware of the abusive practices.

About 800 of these contract farmers work in Texas, the nation’s sixth largest poultry producer. The three major players in the industrial chicken game — Tyson, Sanderson Farms and Pilgrim’s Pride — all have operations in Texas, mostly in the eastern part of the state. All three companies have been accused of mistreating farmers by employing tactics that push contractors into a cycle of crippling debt and bankruptcy. Now, due to last month’s rollback of a U.S. Department of Agriculture (USDA) proposed rule meant to protect farmers, they’ve lost what little hope they had to sue companies who take advantage of them.

Experts say the USDA’s decision to kill the Farmer Fair Practice rule, an Obama-era protection for contract growers that was slated to take effect this month, could indicate that the president won’t stand up for the farmers who overwhelmingly voted him into office.  

Wes Sims, president of the Texas Farmers Union, a century-old rural advocacy group based in Sweetwater, told the Observer that he’s disappointed but not surprised by the rule’s withdrawal. And with Trump’s administration siding with agribusiness interests instead of farmers, “How do you stop them?” he said.

While the Texas Farm Bureau supported added protections for contract growers, the National Chicken Council and other meat processing industry groups have hailed the rule’s withdrawal.

Representatives for Tyson, Sanderson Farms and Pilgrim’s Pride did not immediately respond to a request for comment.

Farmers previously have said that meat processors pit them against one another in what’s called a “tournament system.” Those who raise the fattest chickens with the least feed are paid the most, while their competitors split the money that’s left. Farmers can do little to improve their position, since companies control which chicks and feed are sent to them. Enough poor showings in the “tournament” can put a grower out of business for good.

Contracts between farmers and meat processors usually stipulate that farmers must settle disputes through arbitration instead of in court. Theoretically, farmers can still file a lawsuit against the companies, but court rulings have held that for a suit to even go forward, plaintiffs must prove that unfair practices are occurring industry-wide. The Farmer Fair Practice rule, which was initially proposed in 2010 and delayed several times before being nixed on October 18, would have eased that requirement.

“There’s no other industry that has to meet that standard,” said National Farmers Union President Roger Johnson. “If you’ve been harmed, you should have the right to redress.”

In withdrawing the protection, USDA Secretary Sonny Perdue said the rule would have caused “unnecessary and unproductive litigation.” U.S. Representative Mike Conaway, a Midland Republican who chairs the House Agriculture Committee, echoed the sentiment. “I appreciate the Trump administration’s dedication to regulatory reform through the rollback of unnecessary and burdensome regulations like these,” Conaway said.

Though some farmers who have quit the industrial chicken raising business have raised the alarm about industry abuses, many active growers are loathe to speak with the press. If they do, they face retribution from processors, including being provided with sickly chicks and bad feed, or having their contract canceled, Sims said.

“The company controls all the inputs. They control everything,” he said. “If they speak up, stand up for themselves, they’re done.”

With the proposed rule withdrawn, a lawsuit being heard in the U.S. District Court of the Eastern District of Oklahoma may be contract farmers’ last hope. In Haff Poultry Inc. v. Tyson Foods Inc., farmers have accused processors of colluding to trade information in an attempt to limit farmers’ compensation. The lawsuit claims companies keep farmers “in a state of indebted servitude, living like modern-day sharecroppers on the ragged edge of bankruptcy.”

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Trump nominating Ryan Patrick, son of Lt. Gov. Dan Patrick, to be U.S. attorney

Former Houston prosecutor and district judge Ryan Patrick is Lt. Gov. Dan Patrick's son.

President Donald Trump is nominating former state District Judge Ryan Patrick, son of Lt. Gov. Dan Patrick, to be the next U.S. attorney for the Southern District of Texas, the White House announced Wednesday.

If confirmed by the U.S. Senate, Patrick will become the top federal prosecutor in one of the busiest districts in the country. The Southern District, which includes Houston, Galveston and Corpus Christi, represents 43 counties, 8.3 million people and 44,000 square miles of the Lone Star State.

Patrick graduated from Baylor University and South Texas College of Law in Houston before working for six years as an assistant district attorney in Harris County. In 2012, Texas Gov. Rick Perry appointed Patrick to the 177th state district court in Harris County. But Patrick returned to private practice after losing that seat in November to Democrat Robert Johnson.

Patrick would replace Abe Martinez, a career civil servant who has served as acting U.S. attorney since March, when President Donald Trump asked for the resignation of dozens of U.S. attorneys across the country, including Kenneth Magidson, an Obama appointee who had filled the role since 2011.

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Fired in 2009, football coach Mike Leach still rages at Texas Tech and Texas law

Washington State University football coach Mike Leach was preparing for a game against the University of Colorado two weeks ago when another foe leapt into his mind.

“They are outright crooks at Texas Tech,” the coach declared about 15 minutes into his weekly press conference, referencing the school where he worked before going to Washington State. “Are there crooks there? Yeah. I mean, like, felons. They ought to put them in jail.”

Leach was fired by Texas Tech University nearly eight years ago. But his outburst against his former employer surprised no one. Ever since he left, he has been waging a fight to get more than $2 million he believes Tech owes him from his coaching tenure. He has taken that fight to court, the Texas Capitol and to social media. But so far, state law has left him helpless in the quest to get the money he thinks he’s owed.

He has been stymied by Texas law, which protects the state and its entities from lawsuits — even if the entity violates a contract. So with the legal route blocked, he has turned his focus in recent months to shifting public opinion against Tech and the law that is protecting it.

About six weeks ago, he hired a former Houston investigative television reporter, Wayne Dolcefino, to try to dig up dirt and increase public pressure on Tech.

“Mike Leach went through the legal system, and he got shafted because there is a law that protects Texas Tech — that allows them to cheat someone out of a contract,” Dolcefino said last week. “The sad thing about that is I am sure it happens throughout the state. We have a law that allows the government to totally screw you around and get away with it.”

Whether Leach actually got screwed is a question that remains hotly debated. Leach was relieved of his duties in the final days of 2009 — right before a longevity clause on his contract kicked in that would have paid him $800,000. He had been arguably the most successful football coach in Tech history and was a hero to many students and alumni because of his eccentricity and innovative play-calling. His postgame press conferences were legendary, as he was known to indulge reporters in chats on his obsessions like pirates and the artist Jackson Pollock.

School officials said at the time that allegations of mistreating players and “insubordination” gave the school little choice but to fire him. His removal had been set in motion a few weeks earlier when the family of wide receiver Adam James complained that James was told to sit in a dark closet while suffering from concussion symptoms.

‘The facts and circumstances that led to his termination for cause are clear,” the school said in a statement. “He admittedly ordered that a student-athlete with a concussion be placed in a darkened area — not an athletic training area — and forced to stand. This occurred on two occasions.”

Leach and his supporters, meanwhile, argue that he was actually fired over personality conflicts with Tech’s leadership at the time, which they say were stoked during a tense contract negotiation from months earlier. Most of those leaders have since departed Tech — the school has had turnover at president and chancellor positions since Leach left.

The distinction mattered. Leach’s new contract had a five-year term, and it promised him $400,000 for each remaining year if he were fired before it ran out. But the buyout only kicked in if he were fired “without cause” — basically if he hadn’t done anything wrong but lose football games. The school fired him “with cause,” however, so it claimed it didn’t have to pay him the $1.6 million it would have otherwise owed him.

Leach was outraged and demanded that buyout money, plus the $800,000 he would have received if he had stayed on as coach for one more day. But he soon found there was little he could do. He tried to take the school to court, but his lawsuit was tossed out due to “sovereign immunity,” the legal concept that protects the state from lawsuits. The concept stems from the idea that the state wouldn’t be able to conduct its necessary business if the threat of lawsuits was constantly hanging over its head. The concept isn’t unusual — the federal government is also protected by sovereign immunity. But Texas’ sovereign immunity provision is particularly strong and applies to lawsuits over government contracts as well.

Leach’s frustration is not unusual, said Michael Shaunessy, an Austin attorney with experience suing and representing government entities and who trains lawyers across the state on sovereign immunity. The immunity does serve an important purpose, Shaunessy said, but also leaves contractors vulnerable if their interpretation of the contract differs from that of the state.

“It adversely affects people’s willingness to do business with the state of Texas,” he said. “I have clients who charge more when they are doing work for a government entity in Texas.”

Still, he said, he doesn’t have that much sympathy for Leach, who makes about $3 million per year as Washington State’s coach. (Washington State has traditionally been a bottom-dweller in the Pac 12 Conference, but has a strong 7-2 record under Leach this year.)

“If we are going to make a change about sovereign immunity on the contract side, we need to do that because it has a greater impact on businesses that do business with the state — and the impact it has on the state,” Shaunessy said. “To get into it over Mike Leach just doesn’t make sense to me.”

Leach has shown no sign of giving up. In 2011, with the pro bono help of a leading Austin lobbyist, he urged lawmakers to pass a bill that would have allowed him to sue Tech. A sympathetic House member, Rep. Craig Eiland, D-Galveston, filed a bill on his behalf, but it never made it out of the House Judiciary and Civil Jurisprudence Committee.

Eiland and Leach then enlisted two other House members to ask for then-Attorney General Greg Abbott’s opinion about whether Leach should be allowed to sue, but they didn’t make any progress on that front.

Now, Leach is making a public relations push. Dolcefino recently launched a website, paycoachleach.com, that features a petition signed by about 1,800 people and background information on sovereign immunity. The site compares Texas’ sovereign immunity to laws in oppressive regimes like North Korea, Iran and Syria.

Dolcefino also hosted a rally outside a recent Tech home football game, giving out balloons and urging people to visit the website. And he has submitted multiple open records requests to the university in search of evidence of waste, abuse or fraud at the school. The goal, Dolcefino said, is to put so much pressure on Tech that it simply decides to pay Leach the money he believes he is owed.

Tech has expressed no interest in reopening the discussion, saying in its statement that “the courts decided this case years ago, and there is nothing more to add.” But Dolcefino said he is just getting started.

“Mike Leach is not the kind of guy who surrenders,” Dolcefino said.

Disclosure: Texas Tech University has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

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Texas Toxicologist Who Rejects Basic Science Appointed to EPA Science Board

For years Texas’ chief toxicologist, Michael Honeycutt, has accused the EPA of scaring the public about the health risks of toxic chemicals. The EPA, he has said, “ignores good science which demonstrates that a chemical is not as toxic as they think it is,” uses “‘chicken little’ toxicity values” and doesn’t “do common-sense groundtruthing.” Honeycutt has repeatedly put himself outside the scientific mainstream by arguing that pollutants are not nearly as harmful as the evidence suggests.

Mercury? EPA is “overstating” the risks of exposure and ignoring the fact that the Japanese eat 10 times as much fish as Americans.

Arsenic? It couldn’t be unsafe because we’re not seeing increases in cancer rates that would be true if EPA’s assessment is “realistic.”

Ozone? EPA’s ozone rules are unnecessary because “Americans likely spend at least 90 percent of their time indoors.”

Now, the Trump administration is tapping Honeycutt to lead EPA’s Science Advisory Board, a body of experts that provides objective scientific advice to the agency. The board was created in 1978 by Congress and charged with the mission of providing impartial science free of political interference. His appointment — like that of Rick Perry, Susan Combs and Kathleen Hartnett White — continues the trend of the Trump administration headhunting Texas officials who’ve repeatedly attacked the very policies that they’re now charged with implementing.

In announcing his appointment on Tuesday, EPA administrator Scott Pruitt called Honeycutt a “wonderful scientist” and said he had been chosen out of 130 applicants. Honeycutt’s appointment, along with two others to the Clean Air Scientific Advisory Committee and Board of Scientific Counselors, will bring more geographic diversity to the boards, which historically have been dominated by appointments from the East and West coasts, he said.

“It’s a big mistake to appoint Michael Honeycutt to lead the Science Advisory Board,” Luke Metzger, executive director of Environment Texas, said in a written statement. “Dr. Honeycutt has made repeated public statements undermining the integrity of the science on ozone as well as other pollutants, including mercury, despite consensus from the medical community on the harms of exposure to such pollutants.”

Environmental and public health advocates say Honeycutt cherrypicks facts to fit his arguments, which often are contrary to scientific consensus and are often deployed to attack environmental regulation in the courts and in EPA rulemaking. Perhaps the best example of Honeycutt’s role concerns his work on smog.

Smog in Houston  Jonathan Lewis

For more than a decade, Texas has been in a tussle with the EPA over limiting emissions of smog-causing pollutants from power plants. EPA’s limits on ozone, a component of smog, have grown more stringent with time, and as the Texas Commission on Environmental Quality’s chief toxicologist, Honeycutt has attacked the basic underpinnings of limits on smog. Reducing ozone levels, he has said, will not lead to any significant health benefits and if asthma “were actually tied to ozone, you would expect to see the instances of asthma decreasing, not increasing.” Those arguments are contrary to the overwhelming scientific evidence that higher ozone levels exacerbate respiratory illnesses, particularly in children and the elderly.

Last year, Honeycutt sent more than 100 emails to industry representatives, state air pollution regulators, university professors and scientists asking them to support his nomination to the Clean Air Scientific Advisory Committee. At the time, he wrote that it would be a “minor miracle” if he were selected. He was also considered for a position on the committee in 2015, which environmental groups petitioned. He “consistently takes positions favoring industry and a lax regulatory climate over public health protections” and his appointment to the committee would lead to “an appearance of a loss of impartiality,” seven environmental groups wrote.  

Honeycutt, who joined TCEQ in 1996, will continue in his role at the agency, TCEQ spokesperson Andrea Morrow said. She said it would be “premature” to answer questions about any changes he might propose to EPA’s chemical assessment process.

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U.S. Supreme Court examines investigatory funding in Texas death penalty case

The U.S. Supreme Court in Washington, D.C., on June 7, 2017.

The U.S. Supreme Court examined a Texas death penalty case Monday morning, weighing when federal courts should grant funding to investigate unexplored mitigating evidence that could toss out a death sentence.

The court heard arguments in the case of Carlos Ayestas, a 48-year-old Honduran national sentenced to death 20 years ago in the 1995 Houston murder and home burglary of a 67-year-old woman. Ayestas’ federal appellate lawyers have sought funding they say is “reasonably necessary” to investigate claims of mental illness and substance abuse that trial lawyers missed. They argue that the mitigating evidence could have swayed the jury to hand down an alternate sentence of life in prison.

The courts denied the funding request, and the 5th U.S. Circuit Court of Appeals ruled Ayestas didn’t show “substantial need” for the funding, claiming that there was no obligation for his lawyers to look into those areas, and that any potential findings affected his sentence because of the crime’s brutality and his threatening actions afterward.

“What the court cannot do and what the 5th Circuit regularly does under its ‘substantial need’ rule is say … ‘We’re going to speculate about what you’re going to find when you go out and you look for this mitigation evidence … and we’re going to guess, based on that estimation, that you’re not going to meet that showing,’” said Ayestas’ lawyer, Lee Kovarsky, before the high court in Washington, D.C.

Texas Solicitor General Scott Keller pushed to convince the justices that the high court didn’t even have jurisdiction to hear Ayestas’ appeal because a court’s funding determination is an administrative ruling, not judicial, and therefore unappealable. The liberal justices didn’t bite.

“So where do you go if a circuit is arbitrarily and capriciously saying, ‘We’re not going to give any funds, period’?” Justice Sonia Sotomayor said. “What happens in that situation? Where does the defendant go?”

Ayestas was found guilty in 1997 of the fatal beating and strangulation of Santiaga Paneque. At his punishment trial, where he would either be sentenced to life in prison or death, prosecutors brought forth evidence of Ayestas threatening to kill people who knew about the murder in the days afterward. The defense brought forth no witnesses, only bringing documents from an English teacher in prison that said he was a good student, according to Ayestas’ brief to the court.

During his state appeals, an investigator raised the issue of a lack of exploration into Ayestas’ life, including any mental or emotional disorders, especially since Ayestas had told an investigator before his trial that he had multiple head traumas and regularly drank alcohol and used cocaine. Still, the appeal looked mostly into failed efforts to get Ayestas’ Honduran family to his trial as witnesses for his defense — not at potential brain damage, mental illness or substance abuse. While his appeal was pending, Ayestas was diagnosed with schizophrenia in prison.

Later, in federal court, his lawyers pointed out the lack of investigation into Ayestas’ claims of trauma or drug use and asked the court for funding to fully develop the claim that his trial lawyer was ineffective for not bringing these factors to the jury’s attention. The decision to deny that request is what led to Monday morning’s arguments.

The conservative justices stayed mostly quiet during the hearing, with the exception of Justice Samuel Alito. He questioned Kovarsky’s argument against the 5th Circuit’s “substantial need” test that the lawyer said prevented Ayestas from getting funding, and Chief Justice John Roberts seemed to side with him.

“A reasonable attorney with finite means might devote those finite means to an avenue of investigation that has very, very little chance of success because there is so much at stake,” Alito said. “The evidence has to … meet some level of importance in order for the standard to be met.”

But mostly, the liberal justices controlled the conversation.

“If you have a person who has since the incident in question been diagnosed as schizophrenic, you know, some bell goes off that says, ‘I think maybe we should do some investigation and try to figure out whether he was suffering from mental health issues at the time of the incident,’” said Justice Elena Kagan as Keller pointed out Ayestas’ diagnosis wasn’t until years after the murder.

And even the newest justice, right-leaning Neil Gorsuch, argued against Keller’s statement that there were no deficiencies in Ayestas’ case, noting how the 5th Circuit had to issue a corrected opinion after it incorrectly stated that Ayestas had received a psychological evaluation pretrial.

“Counsel, you say there was no deficient performance, but the circuit court had to amend its ruling because it had mistakenly said that there had been an investigation of mental health in 1997 by trial counsel,” Gorscuh noted. “How can there have been no deficient performance holding if it withdrew the basis of that holding in its revised opinion?”

Keller countered that the psychological evaluation wasn’t the only reason for its ruling, noting that Ayestas’ lawyers and investigator at trial did not abandon him.

“The investigator began interviewing [Ayestas] several times in February 1996, subpoenaed psychological and disciplinary records, made multiple attempts to contact the Honduran family members, contacted several potential witnesses, searched criminal histories and attempted to obtain deportation records and California records,” Keller said. “In other words, this is not a situation where … there was simply no attempt at trying to provide a defense.”

The court likely won’t rule on the case until next year, when it can either uphold the federal court’s decision to deny funding, send it back to the 5th Circuit for further review or order the court to grant funding.

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