The Texas Lottery Commission is facing legislative scrutiny again following allegations by a former employee that the commission spent $1.3 million on a disaster recovery facility that doesn’t work. Lottery officials, who denied the accusation, took legislative staff on a tour of the site following a hearing to make their case, but much of the issue centers around technical details and how “operational” is defined.
The case began with a complaint from a former employee. Staff allegations have become a pattern at the lottery, which in recent years has had more whistleblowers than a kazoo factory. In the most recent case, last June, the lottery advertised for a jackpot it couldn’t fund. A key staff member who tried to raise the alarm about the problem was fired, for what officials said was other reasons. In the latest case, Shelton Charles, who ran the agency’s computer networking system, was fired after alleging problems at the agency’s disaster recovery site. Lottery officials said Charles was fired because he was a disgruntled worker who refused even to meet with his supervisor without a request in writing.
Charles, who said he plans a lawsuit against the agency over his termination, said he was covering his back in what had become a “hostile workplace.” On Nov. 14, before the HouseLicensing and Administrative Procedures Committee, both sides aired their cases and argued over whether the expensive facility was operational or not.
Rep. Ismael “Kino” Flores (D-Mission), committee chairman, said he was skeptical about the commission’s side of the story, because Charles’ allegations seemed indicative of a pattern, as did the commission’s characterization of Charles as disgruntled. “My frustration,” Flores said, “is that any time we get one employee to come up with something, they’re either disgruntled, or they get fired. We haven’t had a good employee yet. And yet they’re batting .999 with us. Everything they said is true. We found out through an employee of the [VLT bill drafting] contract, and we found out everything else we have found out through employees of the agency. But y’all either terminate them or call them bad employees.”
Disaster recovery facility All state agencies maintain a disaster recovery site to back up crucial information and functions in case of an emergency. Most agencies’ backups are housed at a secure and geographically remote facility in West Texas. The Lottery Commission, however, was granted a waiver in 1992 to build its own facility, which it maintains inside a warehouse just outside Austin. The cost: $1.3 million. Why a disaster recovery site for the lottery? The question is about more than just keeping powerball and charitable bingo running in the aftermath of a natural disaster. The lottery generates significant funds for the state, and even the slightest outage, caused by an event as simple as a fire in the commission headquarters on Sixth Street, could have huge consequences for the budget – particularly school finance.
Lottery commission representatives, including Commissioner Thomas Clowe and interim executive director Gary Grief testified that the facility is up and running and is performing all its functions. But when Rep. Corbin Van Arsdale (R-Tomball) asked when the facility originally got up and running, no commission spokesman could answer. Grief responded that it was “some time” in 1998 or 1999. He said he was unable to find any records that could pin down an exact date, a point which Van Arsdale and Flores said they found hard to believe.
Lottery Commission representatives instead made the case that the facility was a perpetual work in progress. Because technology is always changing, they argued, upgrades were ongoing, and the facility would never be in a final state. “Because it changes every day. The minute we sign off on a disaster recovery continuity plan, that plan will be out of date the very next day,” said administration chief Mike Fernandez. “So I guess in state government, you tell [contractors], ‘If you’re working on a contract, you really don’t have to finish it, you just keep it ongoing.’...,” Flores said. “All I’ve heard so far is, ‘We’re not supposed to be done. This is an ongoing project, and we’re going to keep going, and we’re going to keep adding, and it’s going to change.’ That’s a real good line. That’s a very good line. You never have to be accountable for anything...That’s a great way to milk the system.”
Grief, who at the time was the commission’s Y2K compliance officer, said getting the facility running was a massive project. “It was undertaken over a period of many months,” he said, “and there were many different systems that were brought online, equipment moved in, computer rooms built out. I think it would be disingenuous for me to try to tell you that, on X date, everything was done.”
As for the status of the facility now, staff told the committee that the facility has the ability to back-up priority data on a real-time basis and less critical functions on a delayed basis. That, they argued, made the facility operational.
Data recovery vs. recovery strategy But the definition of what constitutes operational is different in the mind of Charles – the employee who raised the issue. In his view – and he helped write the disaster recovery strategy - just getting the data back is not enough. Running the Lottery Commission in times of emergency, he said, requires far more than the data. It requires servers and increased bandwidth - things he says the facility lacks.
“We would have at least four to eight hours of restoration time per server to get that site up,” Charles said. “Now, if you have a single tape backup unit sitting at that warehouse, how will you meet those deadlines? You can’t. The laws of physics prevent that.” The facility, he said, has never even been tested. Although it has the ability to communicate with G-Tech, the commercial company that runs the lottery games, the connection, Charles asserts, is inadequate.
“If I pull the plug out there, right now,” he said, “I want to see it come up, I want to be able to communicate with G-Tech...You can’t, because you don’t have sufficient bandwidth. You don’t have real-time applications that have to run. Those real-time applications do not have sufficient bandwidth.” The lottery has a garden hose, he said. To deal with all the data G-Tech requires, it needs a fire hose. Flores asked Charles how he knew that.
“Because I’m the engineer who worked on the design. I’m the analyst that helped design that disaster recovery plan,” he said. “I know that because I’ve been at that site, I’ve worked at that site. Every piece that’s in that site, I’m intimate with. Especially the communications side because I managed it all.”
A culture of fear Charles said that he made the decision to come forward, knowing that it would ruin his decade-long relationship with the lottery. Like other employees who have testified before him, he described an oppressive atmosphere in which employees daily fear being terminated.
Rep. Delwin Jones (R-Lubbock) said he was disappointed that the committee couldn’t get straight and simple answers. “I sense that everybody’s almost afraid to answer a question,” Jones said. “Is there any reason to be afraid? To say, ‘I don’t know’?...Is there some kind of fear complex among all the employees out there?”
Rep. Tony Goolsby (R-Dallas) said the agency, despite hitting some bumps in the road, was still among the most profitable in state government. “Great,” Charles responded. “Profit is a wonderful thing. But that agency should still be held accountable to the people of Texas, and it should still be held accountable to good business practices.” Those practices, he said, included a working disaster recovery facility.
“If we accept the responsibility to build...a backup system,” he said, “that backup system should work. If we spend $1.5 million, it should work. Somebody should be able to tell you the date that that was turned on. They can’t. If they can’t, it’s because it doesn’t work.”.
Lottery Commission staff invited legislators to tour the backup facility. Legislators, admitting that they wouldn’t know what to look for, chose to send a staff delegation instead. On Nov. 17, a group including representatives from the State Auditor’s office, the Director of Information Resources and legislative staff toured the facility. They plan to report back to the committee soon on what they found.
Texas is a few months into its reform plan for Child and Adult Protective Services. Although progress has already been made on some hiring and technology fronts, it’s still too early for significant changes to affect the way the state takes care of its most vulnerable citizens. The CPS/APS reform plan, HB 6 from the 2005 regular session, includes a number of reform items. Many, however, will be rolled out over time.
Still, as Carey Cockerell, commissioner of the Texas Department of Family and Protective Services (DFPS), told legislators Nov. 2, many of the reforms are already underway, or scheduled under a detailed implementation timetable. To date, the department has transferred the guardianship roles for adults to the Department of Aging and Disability Services, implemented a new APS risk assessment tool, and deployed mobile technology for APS.
The latter includes new tablet personal computers, which have a number of features to allow workers to do their jobs more efficiently. The devices allow caseworkers to take extensive notes – even in cursive writing – which is then converted to digital text. Workers can take photographs on digital cameras or digital audio and download it to the devices. The information can then be sent via wireless email to the caseworkers’ supervisors. This allows better coordination of services between the workers in the field and in the home office, Cockerell said.
“[The caseworker] can be sitting there in the home...and as he’s interviewing the client and observing things in the home, he can see three or four things that can cause him concern...he can use the digital camera to take pictures of those, download them immediately on the tablet P.C., circle them on the screen, make notes of what his concerns are, and then he can wirelessly, while he’s sitting there, email that to his supervisor back in her office,” Cockerell said. “They can see the same thing at the same time and even discuss over the mobile phone any concerns that they have, so that by the time he leaves the house, there is the potential that consultation has already been done.”
Most important, he said, the new PC allows for quicker response to Priority One referrals, the most serious cases APS deals with. In the past, a caseworker would have received a page, then would have needed to return to the office to get the information for the case, then drive to the site. Now, with the tablet PC, the worker can connect to the APS mainframe computer and download the information in the field, then proceed directly to the site.
“The feedback we’ve gotten from the caseworkers has been phenomenal,” Cockerell said, noting the devices were introduced only in the early summer and that workers were still learning to use them to the fullest extent. Although the computers have been delivered only to APS, they will eventually go to CPS as well.
DFPS will hire up to 2,500 workers, including CPS supervisors, case aides (assistant caseworkers), and investigative caseworkers for CPS. The latter is the largest category of new hires, and was one of the hallmarks of HB 6. Forty of the senior investigators have been hired, but as with many of the other new hires, they are mostly still in training.
“They will be working on the more serious cases of sexual abuse...serious physical abuse, and they will help train caseworkers on how to do those,” Cockerell said. The senior investigators (officially called “special investigators”) come from a law enforcement and forensic background. Those who do training for other CPS employees will be certified by the Texas Commission on Law Enforcement Standards and Education.
Outsourcing and other reforms One of the most controversial parts of the reform plan was to privatize casework management. This will occur in phases, culminating in full privatization by Sept. 1, 2011 – but excluding investigation. DFPS officials recently met with representatives of the other two states with privatization of caseworkers – Florida and Kansas. “We’re working very closely with them, because we want to know the mistakes they made, we want to know the lessons they learned, because we don’t want to make those mistakes, and we want to learn those lessons,” Cockerell said.
* DFPS has also created a Caregiver Assistance Program to assist kinship care – the preferential placement of children with relatives. Rules for the program have been adopted and take place on March 1. Under the program, such adopting parents would receive funding from DFPS. In the past, non-relatives who adopted received state assistance, but relatives did not. The new program provides $1,000 per placement initally, plus $500 per child per year.
* DFPS has issued a Request for Information as part of the plan to implement a medical care delivery system for foster children.
Speaker Tom Craddick and Lt. Gov. David Dewhurst are at odds with each other again. This time they disagree on how much the state can afford to spend reimbursing nursing homes, trauma care programs and the state’s newest medical school.
Gov. Perry and Lt. Gov. DewhurstState law allows the Governor to appropriate funds through budget execution authority, and the Legislative Budget Board (LBB) must approve the proposal before money can be spent. The LBB, which is controlled by Dewhurst and Craddick, hasn’t yet convened a meeting to act on Gov. Rick Perry’s budget execution order. And there’s little indication an LBB meeting will be called any time soon.
In August, Perry issued the execution proposal to pay for programs left unfunded from his line-item budget vetoes. He had tried to coax a vote for school finance reform by vetoing several budget line items. Those vetoes, together with the special legislative session’s failure to pass significant school finance reform, left billions of dollars unspent.
Legislative leaders cancelled LBB’s scheduled Sept. 21 meeting due to Hurricane Katrina. Dewhurst and Craddick said that before spending state funds on other programs they wanted to assess the non-reimbursed costs of taking in hurricane evacuees. In a letter dated Oct. 21, Dewhurst urged Craddick to agree on re-scheduling the LBB meeting for early November. Dewhurst’s proposed agenda items contained almost all the items on Perry’s budget execution order.
“Both your office and mine agree that there is not sufficient veto monies to fund the attached list at recommended levels,” wrote Dewhurst. “However, this proposed list appears to be a good starting point to begin discussions at the LBB meeting we agreed in September to hold this month.” Craddick, in turn, replied Oct. 31 that he was willing to fund only four projects: school textbooks; the Arts Commission; the Military Facilities Commission; and partial reimbursement of nursing homes.
“It would be fiscally irresponsible to consider any additional items given the potential supplemental needs that may be necessary to cover costs associated with Hurricanes Katrina and Rita, Medicaid caseloads and the uncertainties related to the pending Supreme Court decision on public school finance,” Craddick said.
At face value, Craddick’s take-it-or-leave-it approach doesn’t seem to leave much room for negotiation. Does this mean that many of the items in the budget execution proposal – with the exception of school textbooks – hang in the balance? Perry’s spokeswoman, Kathy Walt, said his office is currently talking with legislative leaders.
Following is a list of programs left unfunded this session, grouped according to whether there is general agreement or disagreement over what to fund:
General agreement * School textbooks. Perry and legislative leaders, including Craddick, have agreed to fund $295 million in school textbooks. In August, Perry ordered the Texas Education Agency (TEA) to begin processing textbook orders that had been held up in supply warehouses due to legislative inaction. Even though the LBB has not formally acted on Perry’s budget execution proposal, both Craddick and Dewhurst have publicly endorsed paying for the Proclamation 2002 textbooks that were scheduled to be in the classrooms this fall.
Texas Military Facilities Commission. In August, Perry folded the functions of the commission into the Adjutant General’s office. The Governor proposed allocating $3 million to the Adjutant General’s office to help assume the debt payments on military facilities.
Arts Commission. The governor proposed $300,000 to restore funding for the salaries of three employees at the Arts Commission that were in jeopardy after he vetoed a line-item of $531,000 for a new computer system. The salaries were included in the line-item. Craddick proposes restoring most of the funds ($500,000) that were vetoed.
Disagreement Nursing home rates. Perry and Craddick disagree on how much to increase nursing home reimbursement rates. The Governor has proposed $200 million to restore funding to previous levels, whereas Craddick proposed only $75 million.
In the future, Speaker Craddick said he would like to impose a “quality assurance fee,” often referred to as a “granny tax” on nursing home residents so that nursing home “rate stability may be achieved for the nursing home industry through self-funding mechanisms rather than reliance on pure general revenue.” Perry opposes it.
Personal needs allowance for seniors. Rep. Senfronia Thompson (D-Houston) struck an agreement with the Governor’s office to order the Department of Aging & Disability Services to raise the personal needs allowance for Medicaid residents in nursing homes from $45 to $60 a month.
Perry proposed $13 million in funding, with seniors allowed to use their personal needs allowance to purchase items such as clothes and hygiene products. The personal needs allowance is not on Craddick’s proposed agenda.
El PasoMedicalCenter & IrmaRangelPharmacySchool. Items on the governor’s list that have attracted the most political attention are the medical school in El Paso and the Irma Rangel School of Pharmacy in Kingsville. Dewhurst has blamed Craddick for blocking funding. During their regular session, lawmakers failed to approve funding for the schools’ operations.
“We’re disappointed that the funding for the pharmacy school and the medical school were not on there [Craddick’s list],” said Mark Miner, Dewhurst’s spokesman. “We had the pharmacy school, a building built at taxpayers’ expense that is just sitting empty. We’re hopeful that everything will be resolved and that we’ll get an LBB meeting scheduled and fund some of these important projects.” Perry suggests investing $38.5 million in start-up funds to open Texas Tech’s medical school within three years and $10 million for the pharmacy school.
The Governor also would give the Natural Sciences and Engineering building at the University of Texas at Dallas $15 million for debt service. The building was part of the proposal Perry used to attract a new silicon wafer plant to Richardson.
Trauma care fund. Perry wants to restore the money from increased traffic fines designated to go toward Texas trauma centers. The trauma funding was one of the big selling points used to pass Perry’s omnibus toll road bill in 2003. The 2005 legislature refused to appropriate all of the funding designated for the trauma care program. Perry’s budget execution proposal would appropriate $76.5 million from the fund to trauma care centers throughout the state.
Galveston National Biocontainment Lab. Construction began in August on one of only two bio-containment laboratories in the nation at the University of Texas Medical Branch at Galveston. The university won a $110 million grant from the National Institutes of Health to construct the facility. Perry has proposed $5 million to help pay for the debt service on the state’s share of the project.
Other items on the wish list Perry would like to allocate funds to create a donor umbilical cord blood bank and fully fund the salary of the executive director of the state’s information technology agency. Dewhurst proposes funding for the Public Utility Commission’s energy discount program for low-income families and the Attorney General’s Sexual Offender Apprehension Unit.
Looking for a simple chicken dish that will rock as the centerpiece to an informal family gathering during the week or a polished gathering of friends on the weekend? Sandra Lewis recommends you try Chicken Breasts Alfredo, a chicken dish for all occasions.
American Airlines will have no choice but to initiate flights from Love Field to Missouri to remain competitive with Southwest Airlines, once President Bush signs the bill authorizing such flights. Southwest will start flights to St. Louis and Kansas City as soon as possible, both to demonstrate to senators how their states can benefit by repealing the Wright Amendment and to keep Sen. Kit Bond happy after he pressed for the Missouri exemption.
American executives met with Love Field officials Friday in what was called a "contingency planning" meeting. While Southwest has said it makes no sense for American to move its flights to St. Louis and Kansas City from DFW to Love because it would split their operation, rest assured that's what will happen. American will put its Love Field gates -- it has three -- in service as soon as Southwest inaugurates Missouri flights because 85 percent of its Dallas-to-St. Louis passengers live closer to Love Field than DFW. AA's customer base could erode if it doesn't fly from Love. And while it's there, AA might fire a shot across SWA's bow by offering service to Houston or Austin or both. American hasn't flown from Love Field since the terrorist attacks of Sept. 11, 2001.
The bigger question at the moment is: What's to happen to Delta?
There's a serious possibility that Delta is going to have to liquidate. Delta's pilots have announced that they will strike if the courts set aside their contracts. If they do, it'll be the equivalent of a murder-suicide -- Delta will be shot down and the pilots will lose their jobs. If Delta folds, a huge hole will be created in air traffic to the Southeast. The two airlines in a position to fill that gap are American and Southwest, raising the question that either American or Southwest would consider relocating to Atlanta. It's at least a passing fear of DFW and City Hall observers.
Two Dallas area Republican legislators drew opponents this week; one in the GOP primary, the other in the General Election. Seven term incumbent Tony Goolsby defeated his Democratic opponent Harriett Miller by only a six percentage points two years ago, so Miller has decided to give the race another shot. Given the relative closeness of the election at a time when President Bush was leading the ticket by nearly 20-points, the race would appear to offer a serious contest.
GO Rep. Mary Denny of Flower Mound will face a primary challenge from former Lewisville ISD President Anne Lakusta. Lakusta’s challenge is one of several GOP incumbents are facing within their own primaries from school board officials or former officials angry over the GOP’s handling of education funding reform.
UTD Grandmaster Magesh Chandran PanchanathanAt UT Austin football is king. At UT Dallas chess is king. And in two weeks UT Dallas will host the UTD Grandmaster Invitational tournament. Such events are rare and this event will offer some very strong competition. UT Dallas has hosted such a tournament in three of the past four years but this year will be different. In order for the event to be more inclusive of the broader community the event will be held at the Richardson Civic Center starting December 6 th and continuing through December 14th.
There will be four Gransmaster participating: Igor Novikov, 43, of Ukraine, Alexander Goldin, 40, a native Russian living in the US, Varuzhan Akobian, 22, formerly of Armenia but now living in the US, and Magesh Chandran Panchanathan, 22, of India but currently attending UTD. He is the only Grand Master to earn that designation while a student at UTD. All of the other players are students at UTD.
Round One will begin Tuesday December 6th at the Richardson Civic Center at 5:30 following a brief opening ceremony. A new round will be held Wednesday thru Friday from 3 to 8:15 pm. Two rounds will be held on Saturday with the first starting at 1 pm and the second at 6:15 pm. Sunday the 11th will feature Round 7 at 1 pm and Round 8 at 6:45 pm (through Midnight). Rounds 9 - 11 will be held each day starting at 3 pm Monday the 12th through Wednesday the 14th.
Gov. Rick PerryGov. Rick Perry sent a letter today to Acting FEMA Director David Paulison requesting the agency to delay its Dec. 1 deadline to move Hurricane Katrina evacuees out of hotels and into apartments.
"I recognize and fully support FEMA’s efforts to make personal responsibility a part of the hurricane recovery process, and I also recognize the need to control the financial costs of disaster response," Perry said. "However, with 18,000 Katrina families (an estimated 54,000 individuals) still housed in hotels and motels across the state, the December 1 date is an unrealistic target. Therefore, I strongly urge you to direct FEMA to set a more realistic timeline of March 1, 2006, for cessation of hotel reimbursements, and June 1, 2006, for cessation of all housing reimbursements."
In a similar measure, U.S. Sen. Kay Bailey Hutchison sent a letter to Paulison.
"Several cities are dealing with such large numbers of evacuees that it may not be feasible for them to comply with the current deadline," Hutchison wrote. "Also, as the holiday season approaches, we do not want to see those who have already lost so much be left homeless or returned to shelters. We ask that you grant an extension to the December 1st deadline for communities with particularly large concentrations of evacuees to allow for their transition into safe and stable long-term housing."
Nonetheless, another unresolved Texas-FEMA issue looms perhaps even larger: namely, how much the state will receive in reimbursements from the federal government. FEMA’s plan is to move all 51,000 people who are still living in hotel rooms into apartments, or in some cases, into homes. To do that, they’ve set a date – Dec. 1 – for the transition. Residents were notified of the decision through a letter slipped underneath their doors two weeks ago.
During a statewide conference call with reporters, FEMA defended the hurried nature of the change. “We need to help them develop long-term recovery plans,” said Sandy Coachman, the federal coordinating officer heading up the recovery effort in Texas . “We all knew the time would come when everybody needs to move out of shelters and hotels and into more permanent housing.”
The change will not end benefits for the evacuees. FEMA will still pay the costs of housing the evacuees in apartments. Those payments will end March 1.
The difference to the taxpayers is substantial. Apartment and hotel rates vary, but the latter are almost always higher. Currently, FEMA is paying for 20,414 rooms at an average cost of $70 a night, or $2,100 a month. The average apartment cost would be $777. At those costs, moving the evacuees into apartments would save taxpayers $27 million a month.
Don Jacks , FEMA’s Texas external affairs director, said FEMA wants to “put ourselves out of the hotel/motel business.” Jacks said FEMA would move aggressively to meet the deadline. Although the goal was to move all evacuees out by that time, he reiterated that those who don’t leave won’t be evicted. FEMA and local entities will provide assistance and meet with the evacuees to encourage them to comply. These “strike teams” will go from motel to motel to meet with residents and assess their needs. “We’re not kicking people out of hotels and motels,” Jacks said. “This is a transition.”
Evacuees who participate will move into apartments, with FEMA paying their rent and utilities until March. Since that period is shorter than most apartments’ minimum leases, evacuees can sign longer leases, and the state will pay the cost to break the lease when the term runs up.
FEMA will also provide some furniture to residents who are being lodged in apartments.
Perry said he didn’t like the agreement, because it doesn’t do anything to address needs beyond March. “We recognize and agree with FEMA’s decision to make personal responsibility a part of the hurricane recovery process,” he said. “However, my great concern is that there is still no long-term housing plan for the hundreds of thousands of Katrina victims who lost everything – including their homes – as a result of the storm, and come March 1, many of them may find themselves with no long-term housing options.”
Houston Mayor Bill White estimates that the number of hurricane evacuees housed in Houston hotels has dropped from 60,000 in September to 19,000 this week. White has issued a statement requesting an extension from FEMA on the deadlines. “We are dedicated to working closely with FEMA to let evacuees make choices about their lives, find jobs, and be treated with dignity and respect,” White said. “We have moved more evacuees out of hotels than any other city has ever had in hotels. So we encourage those new to it to ask us, not tell us, how to do it.
“We appreciate the payment this week by FEMA, and the attention of Senior Department and FEMA officials to Houston’s unique situation. We may be asking for extensions of these deadlines based on market conditions and commitments previously made by FEMA, and we feel confident that FEMA will review those requests on the merits.”
The Senate Finance Committee met in Beaumont Nov. 17 to discuss the hurricanes and their impact on the state budget. Lt. Gov. David Dewhurst toured the Lamar University campus Nov. 16 to survey hurricane- inflicted damage .
The Beaumont Enterprise quotes Dewhurst as estimating state costs from the Hurricane at $1.4 billion. The Associated Press quotes state homeland security director Steve McCraw as estimating the cost to state and local governments combined at $2.7 billion. Much of these costs are likely to be reimbursed by the federal government.
Eminent domain remains an unfinished issue, speakers at a forum said Nov. 2. Despite passing a bill in the second special session to address the fallout of the Supreme Court’s Kelo vs. New London decision, the Legislature will likely take up the issue again the next time it meets. The forum, sponsored by the Texas Public Policy Foundation, weighed the consequences of the Kelo case, in which the court ruled that governments had a right to use eminent domain laws to condemn private land not only for a public use, but for economic development. The case provoked nationwide outrage, as well as an effort in Texas for a quick fix. Rep. Frank Corte (R-San Antonio) was among those who led the charge, filing a bill and constitutional amendment in the first called session last June. As debate began, however, questions arose about whether the proposed legislation could limit supposedly legitimate uses of eminent domain. In the end, the Legislature responded to Kelo by passing Sen. Kyle Janek’s (R-Houston) SB 7. Corte said the legislation was a first step. Interim studies have also been proposed. Corte agrees with the extra focus, but said he hopes the issue doesn’t get pushed aside. “We can study it all day until the cows come home, but the truth is, it’s wrong to take personal property for economic development,” he said. Corte said that the ultimate goal of eminent domain reform should be enshrining property rights in the Constitution through an HJR. “A lot of people would say, ‘Well, why do you need it in the Constitution?’” Corte said. “I feel that since the Constitution pretty much gave the state the power to take property for eminent domain purposes, then we need to amend the Constitution to [say] that this would not be an appropriate taking.” A sense of urgency Clark Neily, with the Institute for Justice, which unsuccessfully fought the Kelo ruling, said Americans can’t simply sit back and leisurely study eminent domain in perpetuity. Kelo, he said, “opened a floodgate.” Most disturbing, he said, was that some governmental entities are arguing that eminent domain for economic development should promote the “highest public use” of the land. Judged by tax revenue, he said, it’s not likely that the average homeowner would ever be found using land at the “highest use” level. As Ted Cruz, the state’s solicitor general, said, such use of eminent domain amounted to reverse Robin Hood. “This will always be used to take property from the poor and give it to the rich,” he said. “It will never be used the other way around.” Cruz said even more surprising than the court ruling was the response of some colleagues nationwide, who thought that any increase in government power was good. Cruz said just because government “can wear a jackboot” doesn’t mean it should. “There are few rights more important to human liberty, more important to the fundamental freedom of people than the right of property,” he said. Noting the reaction to the ruling nationwide, Cruz said this could be a case where the court decision ultimately aids property rights. “We in Texas – home of the Alamo – know something about losing a battle and winning the war,” he said. Donald Lee, representing the Texas Conference of Urban Counties, said it was not necessarily true that cities and counties wanted the expanded authority for eminent domain. While cautioning against legislation that would inadvertently shut off eminent domain for legitimate uses, Lee endorsed action that would address Kelo. “[Eminent domain] is a necessary evil,” he said. “And it is evil. After all, politicians like to make friends, and eminent domain does not make friends.” Much of the state’s transportation infrastructure, he noted, however, was created through eminent domain. Many services provided by common carriers, such as piplelines and electric lines, were also aided by eminent domain. Lee also cautioned that a cottage industry of developers and others abuse the compensation provisions of eminent domain law to squeeze more money out of the taxpayers. He said that any solution to eminent domain based only on increasing the reimbursement would play into the hands of those people, in the end only increasing costs to taxpayers. “We don’t have a problem with a constitutional change being made,” he said. “We just haven’t seen language yet” that protects legitimate uses. Freeport case The most famous battlefront in the war over eminent domain is Freeport, where the city’s Economic Development Corporation (EDC) is trying through eminent domain to secure land for a private developer’s marina project. Target of the condemnation proceedings is the headquarters of Western Seafood, Inc., a shrimping business. Owner Wright Gore, III, whose family has run the business for 50 years, said he refused the EDC’s request to sell a portion of his property on grounds the sale would block his company’s access to the waterfront and effectively run him out of business. The EDC’s decision to pursue eminent domain condemnation began a legal battle Gore and his company are still fighting. A cause celebre for supporters of tougher new legislation, the Western Seafood case has divided Freeporters, who this week defeated by only 21 votes a proposal to abolish the EDC. The ad hoc group that sponsored the measure – Citizens for Freeport – decided against calling for a recount despite the narrow margin of defeat. Other laws Texas is one of three states – the others are Delaware and Alabama – that have passed eminent domain legislation since the Kelo decision. Arizona already had a law covering the issue. But Neily said all these laws include loopholes that allow cities to liberally interpret the eminent domain powers to alleviate blighted areas.
A sticking point with these statutes, including Texas’, is the definition of public use. Even those supporting eminent domain reforms last session found it difficult to agree. Neily suggested Texas start with what a public use is not – specifically taking land from one private interest to give to another private interest.