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Duncan talks eminent domain, higher ed Print E-mail
by Mark Lavergne    Wed, May 13, 2009, 10:08 am

Senate State Affairs Committee Chairman Robert Duncan (R-Lubbock) found time to sit down and chat with me this week about eminent domain reform and some of the many other issues he’s had on his plate for the 81st session, including expanding higher education.

LAVERGNE: You’re one of those legislators who has a finger in every pie, as they say. With three and a half weeks to go in the session, what are your highest priorities? What are you hoping for, and what are you expecting?

Duncan: Well, I think the first thing that we’ve got to do is get a good budget. And it’s a real challenge this session because of the projections for revenue shortfalls in the future. And, at the same time, those revenue shortfalls are occurring as the economy slows down, so the demands on the state budget increase.

LAVERGNE: As with Medicaid?

Duncan: Right, Medicaid in particular, and in the Health and Human Service areas.

Also in education, because we have more people going back to school in times when the economy falls a little bit. Our enrollment rolls go up, because … the person decides to use that time to go back to school. A lot of our community college contact hours go up, and even some of our general academic institutions start to see enrollment growth, so we’re looking at all those issues and having to deal with a projected revenue shortfall. And then I think the wise decision is trying to maintain as much, if not all, of the Rainy Day Fund for the next biennium when we know we’re probably going to have some real tough issues facing us.

LAVERGNE: As you know, the committee substitute to SB 18 omits the definition of "public use" from the original bill as filed. The Institute of Justice, which litigated the Kelo v. New London case before the U.S. Supreme Court, said this week that the new SB 18 has been "gutted." What are your thoughts?

Duncan: That was a tough decision for us, but we did not talk to anyone, either on the condemnor or the condemn-ee side of this equation who thought that the definition did anything but confuse the current state of law of determining what public use is. That’s a very polarizing issue. And, quite frankly, as I would read through that definition, I never could get my hands around what it really was seeking to accomplish, other than what case law already did.

So we decided that we would move forward with a constitutional amendment (SJR 42) that we think we can pass, that makes clear that you can’t condemn private property primarily for the purpose of economic development where you would transfer it from one person to another or for tax-base enhancement. And we felt like that was probably the best approach to this, and then we’ll let the law develop under that.

Politics is about the art of possible — what you can get done. And so it was our sense in checking the tea leaves that the bill that we passed without the public-use definition would have a better opportunity of being implemented into law, and we would deal with that with the constitutional amendment that we had, that we’ve now moved out of committee and [gotten] ready for debate on the Senate floor … sometime next week.

LAVERGNE: What about the eminent domain registry in SB 18? You’ve said that that was something less-written about in the press.

Duncan: From the very beginning when we started looking at eminent domain in 2005 after the Kelo decision came out, we were trying to identify all of the entities in the state of Texas to whom were granted eminent domain authority. And there is no way to find [that]. A lot of that was done in special laws, local laws that are not necessarily in our annotated statutes. So we felt like it was important for us to know what authorities we have granted eminent domain authority to, which would help us better evaluate public policy issues as we go into the future. It may be that some of these entities don’t need it.

Over the history of Texas in the last several decades, the Legislature has very freely granted eminent domain authority to any quasi-governmental entity or other entity or even to private entities with regard to freshwater supply districts that are kind of MUDs [municipal utility districts], and things like that. And so it was our intent to try to identify those entities and then try to analyze the appropriateness of the grants that we’ve given in the past and then to help us move forward with better policy when we make decisions about granting eminent domain authority in the first place.

LAVERGNE: A lot of legislators have been cheering for more Tier 1 universities, and you’ve got SB 1560 and SJR 35 that actually lay out possibilities for defining and paying for such universities. Could you tell us a little bit about that?

Duncan: Senate Joint Resolution 35 moves a stranded fund that’s not being used and probably never will be used, the Permanent Higher Education Fund, over into a new National Research University Fund that will operate similarly to the Permanent University Fund. And that’s not controversial. That should pass easily.

The tougher challenge is to define the characteristics of a national research university that would participate in that fund. There are a lot of issues that are involved; but the way we approached it was, let’s set the criteria so that no university reaches it today, but that all universities that are eligible through the emerging research classification have an opportunity to reach it in the future. Set the criteria fairly high, so that when those institutions accomplish those criteria, their relevance in the nation and internationally with regard to research and academic quality will be recognized.

It would be easy politically for us to just say, "Everybody’s in this fund. All the emerging institutions are in this fund." But that would not necessarily establish their relevance outside the state of Texas. So the criteria that we developed, like endowment, faculty quality, student quality, restricted research, Phi Beta Kappa, American research library designations, all of those measures are measures of the relevance of the institution in a national comparison with other universities.

So that’s what we’re trying to do, and we’re setting the goals, and once we identify the goals, we believe the institutions will very quickly know how to get there.

… The criteria, or really the vision, for higher education in the future in Texas, we never have set goals that raise the bar for the higher education product we have in Texas. This legislation in the criteria does that, and we believe it’s fair and equitable to all institutions who are now classified as emerging research institutions, and attainable — not all at the same time — but attainable by the institutions.

LAVERGNE: Where is that legislation now?

Duncan: It’s all over the place. It’s in [Rep. Dan] Branch’s bill, House Bill 51, and then I passed SB 1560 out of the Senate as a stand-alone bill. … SB 1560 is just a stand-alone on the criteria for the vision.

LAVERGNE: Your SB 10 was passed out of the Senate this week to set up a one-year pilot program to reimburse doctors based on "outcomes" rather than the number of different services provided. Why is that important, and how does your bill work?

Duncan: This is a concept that we’ve been working with the Lt. Gov. [David Dewhurst] on since actually before the session. And the notion is, let’s start changing the paradigm with regard to how we reimburse health care and let’s start reimbursing health care based on a partnership between the health plans and the providers to improve outcomes. And by improving outcomes, what we actually are doing is, we’re incenting a system to take better care of the patients.

Our current system is based on volume and utilization. In Senate Bill 10, our concept is based on outcomes and collaboration and integration among the different healthcare professionals that treat a patient in the event of an illness episode. … It’s quite frankly aimed primarily at the collaboration among health plans and providers in the insurance market or in the insurance reimbursement leg of the stool.

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written by Pratt on Texas , May 13, 2009

Don't be fooled by a bill or two. Duncan is NOT a conservative in any way. He supports most Nanny State legislation, wrote the bill called a gift to Texas trial lawyers this session, opposes CHL on campus, is FOR taking UI "stimulus" money, etc.

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