How Things Really Work

In Texas the law is clear. Governing bodies must conduct the people’s business in public or else face some serious penalties. This statute has protected the public and elected representatives alike for the past 42 years with a basic premise: Public bodies should deliberate in public.

The days of making backroom good ol’ boy deals in private are a thing of the past because the Texas Legislature outlawed it by passing the Open Meetings Act in 1967, and strengthening it in 1973 after the infamous Sharps-town scandal.

Yet, there are some serious and troubling attempts under way that could open the door for that very thing to occur. At least three Texas cities and the Texas Municipal League are endorsing a legal challenge in the courts that will render Texas’ Open Meetings laws ineffective. TML, which is supported by your tax money in the form of membership fees, is urging more than 1,100 Texas cities to sign on to a federal lawsuit.

The details of the challenge are stated simply: These public officials claim the Texas Open Meetings Act unconstitutionally restricts their right of free speech under the First Amendment. Of course, they are free to say anything they wish to anyone they wish at any time they wish. However, when they are meeting as a quorum of a governmental body, they must say it in front of the public at an open meeting.

Even more importantly, the First Amendment cannot be a shield to prevent accountability of public officials, but guarantees access to the workings of these governmental bodies just like it does to our courts.

TML wants criminal penalties such as jail time stripped from the law that has protected the public for more than four decades. It believes the current language is too punitive and argues “… less restrictive penalties would not only continue to preserve the integrity of the Texas Open Meetings Act but would also recognize the fundamental right of city officials to free speech.”

In other words, if public officials break the law in the future by conducting business in secret — i.e., exercising their rights to free speech behind closed doors, a slap on the wrist should be punishment enough.

It simply defies logic and apparently not all of TML’s own members agree with this position. As reported in The Brownsville Herald, Nov. 21, 2009, TML board member and Mercedes Mayor Joel Quintanilla said, “Either I misunderstood the entire meeting or something is happening. The way I understood it, we all (board members) voted in favor of keeping the restrictive penalties, not lessening them.” Quintanilla went on to say, “We didn’t want elected officials to get comfortable.”

He’s not the only one apparently confused by TML’s action. Mercedes Commissioner Ruben Guajardo is also quoted as saying, “The consensus (of the TML Resolutions Committee) was that things were fine the way they were (with the Texas Open Meetings Act) and that trying to reinvent the wheel was not in the best interest of everyone involved …. We (the resolutions committee) felt that to change something (in the meetings act) was just not correct. It really wasn’t right. The consensus was to leave the Texas Meetings Act the way it is.”

I couldn’t agree with Commissioner Guajardo or Mayor Quintanilla more. As a member of the public, I am left confused by what is happening, and why. But I do know this. I don’t want elected officials to get too comfortable either, because I have seen firsthand what can happen if they do.

I hope you will join me in supporting the idea that the Open Meetings Act should be left intact and open government, without any strings attached, should continue to be the law in Texas. I also urge you to contact your city leaders and encourage them not to join in this effort that could weaken the Texas Open Meetings laws.

If clarifications are needed to address modern day changes such as electronic and digital communications, then they should be made at the statehouse — not city hall. And, at a minimum, you should point out to your public servants that any discussion on this or any other issue involving free speech should be debated in a public meeting instead of a rubber-stamp style vote to please Austin lobbyists.

Hobby served as Texas lieutenant governor 1973-91.

As the world struggles to come to grips with the global financial crisis, it might be instructive to look at how Jesse Jones and other Houston leaders dealt with an earlier banking calamity.

The Chronicle’s Loren Steffy recently published an interview with Jones biographer Steven Fenberg describing how Jones, chairman of the Reconstruction Finance Corporation, saved the nation’s banking system.

Before he went to Washington in 1932 to serve on the RFC board, Jones saved Houston’s banks. In effect he created a Houston Deposit Insurance Corporation before Congress created the federal version (FDIC).

In 1931, the Public National Bank, owned by W. L. Moody of Galveston, and the Houston National Bank, owned by Gov. Ross Sterling, were in deep trouble. Public National was sure to close, to be followed by Houston National and hundreds of smaller banks in other counties and states whose reserves were in those two large institutions.

According to Fenberg, “Jones saved the banks not by passing a law but by calling together Houston’s bankers to hammer out a bail-out plan.” They met in his office atop the Gulf Building on Sunday afternoon, October 25, 1931. The meeting was long and rancorous. At 2 a.m. Monday morning, Mr. Jones called another Houston icon, Captain James A. Baker, for support. Captain Baker, vacationing in Massachusetts, helped persuade the holdouts and the group finally agreed to supply $1.25 million ($14 million in today’s dollars) to keep the banks open.

Captain Baker had earlier kept a murderer and a forger from stealing the money William Marsh Rice had left to fund Rice Institute. He is the grandfather of former Secretary of State James A. Baker III.

The money came from 12 local banks, the electric, gas and telephone companies, and Anderson Clayton & Co.

By Tuesday morning, Mr. Jones’ National Bank of Commerce owned Public National Bank. Joseph Meyer owned Houston National. The pool formed by the local leaders was sufficient to pay depositors, to support the transition and to guarantee Houston’s banks.

A couple of days after the emergency meeting, Jones wrote Captain Baker, “My telephone talk with you the other night gave us real courage after several days and nights of a very harrowing experience. I felt that none of us had a right not to stop the tragedy that would have followed our failing to do that which we did.”

Fenberg said Jones’ actions helped save Houston’s banks. “As a result of Jesse Jones’ initiative, and because local leadership put community well-being first, Houston banks did not fail during the Great Depression,” he said.

Other cities were not so fortunate in their leadership. Jones wrote a letter of thanks to one of the bailout opponents who came around at the last minute, “I believe that all we have done, are doing and must continue doing, is necessary for the general welfare. We cannot escape being our brother’s keeper.”

Fenberg says, “After Jones went to Washington as a board member of the RFC, he urged Henry Ford to form a pool to save Detroit’s banks, similar to what had successfully been done before in Houston. Only this time, instead of only local and private action, the federal government, through the RFC, was a willing participant.”

Jones agreed to lend $65 million ($833 million today) to the Union Guardian Trust Company if Ford agreed to contribute to the rescue fund and allow smaller depositors and investors to have first claim on the bank’s resources before he collected his $20 million ($244 million today) in deposits. According to Jones, “Mr. Ford refused to put his chips into the kitty and said, ‘Let the crash come. There isn’t any reason why I the largest individual taxpayer in the country, should bail the government out of its loans to banks.”

The result was predictable. Jones recalled, “The closing of all banks in the motor capital was the principal prelude to the collapse, during the next three weeks, of the nation’s entire financial system.”

Jones asked J. P. Morgan to form a pool to save the New York banks. Morgan refused and the New York banks also failed. The Great Depression was on.

Another Houston banking story from the Depression era also illustrates the value of putting community well being before self interest.

Houstonian Jakie Friedman ran a gambling house called “Domain Privee” in a colonial mansion off South Main. He banked with the First National Bank.

There was a run on the bank. Depositors were lined up around the block to withdraw their money. Friedman asked Judge James Elkins, the bank president, if he should withdraw his money.

Judge Elkins said, “Mr. Friedman, if you tell me know that you are withdrawing your money, I will lock the doors and close the bank. If you leave your money in, we may make it.”

Friedman left his money in and the bank did not close. Friedman never had any more banking problems in Houston. He eventually moved to Las Vegas and built The Sands in the early 1950s.

During the Great Depression, Jesse Jones and Jakie Friedman, unlike Henry Ford, put their community first. Jones knowingly explained to a colleague after finalizing Houston’s 1931 bailout, “Other communities are having plenty of bank troubles and all of them will pay dearly for not stopping the fire before it starts.”

Bill Hobby was Lieutenant Governor of Texas 1973-91.  He can be reached at [email protected]

Contact information for editors:
2131 San Felipe
Houston, Texas 77019
713-521-0960

Fraudulent voting in the Texas House of Representatives has been going on for a long time. It reached a new low last year when the House passed the “voter ID” bill to prevent fraudulent voting at the polls, of which there is little evidence.

Of fraudulent voting in the House there is ample evidence. It’s called “button-pushing.” Channel 42 in Austin filmed Texas House members voting fraudulently to keep other people from voting fraudulently. Google “You-Tube-Texas Legislation” and see the action.

Each member’s desk in the House has a set of buttons on which a member can vote aye, no or present not voting. When a member is away from his or her desk, the member can lock the buttons to prevent fraudulent voting but almost never does.

The fraudulent voting to prevent fraudulent voting has become so notorious that Speaker Tom Craddick last Nov. 29 asked the House Administration Committee to “study and make recommendations for alternative voting devices in the Texas House Chamber and make recommendations before the next session.”

That study can be quickly done by looking at the electronic voting system in the U.S. House of Representatives and automated teller machines all over the country. Rule XI of the U. S. House on electronic voting says:

“A number of vote stations are attached to selected chairs in the Chamber. Each station is equipped with a vote card slot and four indicators, marked ‘yea,’ ‘nay,’ ‘present’ and ‘open’ that are lit when a vote is in progress and the system is ready to accept votes. Each member is provided with an encrypted Vote-ID Card. A member votes by inserting the voting card into any one of the vote stations and depressing the appropriate button to indicate the member’s choice.”

There have been no complaints of fraudulent voting in the U. S. House.

The Texas House should use an electronic voting machine similar to the one in the U. S. House and pass a similar rule. The U. S. House and all the banks in the country know how to prevent fraud. Maybe the Texas House can learn, too.

What’s to be done in the meantime to restore the integrity of the Texas House? Once again, the answer is simple. Every state official takes the oath prescribed by the state Constitution (Section XVI, Article 1). The official swears to “faithfully execute the duties of the office and to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”

A member who pushes another member’s button votes fraudulently and violates the oath. Under the Texas Constitution the House is the judge of its members. To regain and maintain its integrity the Texas House should expel its faithless members.

Bill Hobby was Lieutenant Governor of Texas 1973-91.  He can be reached at [email protected]

Contact information for editors:
2131 San Felipe
Houston, Texas 77019
713-521-0960

I had no Republican opponent when I first ran for Lieutenant Governor in 1972 and was re-elected in 1974 and 1978 without much opposition, but in 1982 the Repubs decided my free ride was over. My opponent was George Strake, a Houston oilman who had been appointed Secretary of State by Governor Bill Clements.

Little did I know what dark forces confronted me! Karl Rove was Strake’s campaign manger!

Strake came after me with the usual Rove stuff—I spent too much state money and I was soft on illegal aliens. Worse than that, the state budget had grown! It certainly had, but not by nearly enough. Texas, then as now, was one of the fastest growing states and trails the nation in public education and public services.

Strake didn’t want undocumented workers to go to public schools. I guess he wanted them to go on welfare or to prison.

In the fall of 1982, I had a fifteen-minute debate with Strake on KERA, the public television station in Dallas. George Christian and Don Adams and my campaign staff had prepared a briefing book with answers to every conceivable question and accusation. I left the briefing book on the plane.

Strake went first. “What a shame,” he said, “that we have only fifteen minutes to this debate. It would be impossible to fully air all the great issues of state in that brief time!” He offered to pay for a longer debate.

“George,” I said, “keep your money. Fifteen minutes is more than enough time for you tell us all you know about state government. I will use my time to ask for support for the constitutional amendment to raise the ceiling on welfare expenditures, which is also on the ballot this year.”

A reporter compared the non-debate to a scene from “Raiders of the Lost Ark” when Indiana Jones is confronted by a Turkish bad guy wielding a scimitar. He whirls and twirls and tosses his scimitar around for the crowd and while he is showing off, Indiana Jones shoots him.

Strake is a Roman Catholic. He made a television spot emphasizing his ties to the Pope. The spot was intended to run in South Texas. His campaign probably wasn’t helped when it somehow ran in East Texas.

It was Karl Rove’s finest campaign. It took a genius to get forty-two percent for Strake! And it gave Karl experience that would later serve him well campaigning for other problem candidates.

When I was ran in 1986, Strake was Chair of the Texas Republican Party. He said that I would not be a target for the Republican Party. “We will focus our resources on other races”, he said.

Bill Hobby was Lieutenant Governor of Texas 1973-91. He can be reached at [email protected]

Contact information for editors:
2131 San Felipe
Houston, Texas 77019
713-521-0960

The Hobbys and the Johnsons have been friends for three generations now, bound together by broadcasting and government.

Mrs. Johnson was the broadcaster in the family.

Luci Baines Johnson grew up in both businesses, as did I.

Sam Ealy Johnson, President Johnson’s father, and I.W. Culp, my grandfather, served together in the Texas House of Representatives.

Mrs. Johnson began her broadcasting career as the owner of a radio station in Austin then bought a television station. Of course the call letters of both stations were and are KLBJ. Mrs. Johnson later bought stations in other Texas cities.

Being married to a public official is no easy task for a woman. Mrs. Johnson was the only such wife and mother I ever knew that enjoyed it. Lynda Johnson Robb and Luci Baines Johnson are the showcases what a great job she did.

Wildflowers were, of course, Mrs. Johnson’s passion. She started a program to beautify Texas highways by sponsoring a contest among Highway Department district engineers to see who had could most beautify their highways.

She founded the Lady Bird Johnson Wildflower Center outside of Austin.

The Lady Bird Johnson Wildflower Center is working on several projects that use native plants to combat climate change.

Global warming is caused by carbon dioxide. Plants inhale carbon dioxide and exhale oxygen. In urban areas, well-planned landscapes can not only pull CO2 from the air, but store it in the soil for decades.

One Wildflower Center product, done in cooperation with the Seattle-based environmental company, Mithun, is an open-user, web-based carbon calculator which can aid developers in calculating the total carbon footprint of their projects.

It’s one more tool to deal with perhaps the greatest challenge now facing the earth. It goes hand in hand with the Wildflower Center’s work on green roofs, which reduce energy demand in the buildings beneath them, and standards for sustainable landscapes.

The Center preserves seeds of species of flowers that would otherwise become extinct. That environmental research will continue because, a year before Mrs. Johnson died, the Center became a part of the College of Natural Sciences at University of Texas at Austin.

President Johnson is memorialized by the Lyndon B. Johnson Museum, Library, and School of Public Affairs (where I used to teach).

LBJ left his letters and tapes to the library with a stipulation that they not be released until 35 years after his death—next year. Several years ago, Mrs. Johnson decided to start releasing them as soon as possible.

The archiving process is long and tedious. Under federal law the archivists must have security clearances. There is still concern about releasing information that may have been acquired by breaking other nations’ codes and compromising our country’s ability to get that kind of intelligence.

Perhaps twenty percent of the information has now been published electronically or in print, beginning with the material relating to the Kennedy assassination.

We are farther down that road than we would have been but for Mrs. Johnson’s concern about the openness and availability of public documents, tapes, and videos.

In contrast, President George W. Bush loves secrecy and has made information in more recent Presidential libraries harder to get.

Mrs. Johnson finished the course and kept the faith. Well done, thou good and faithful servant.

We shall not see her like again.

The poll tax was eliminated by the Twenty-fourth Amendment to the U.S. Constitution because it was used by former Confederate States to keep poor people, black and white, from voting.

But the Texas Legislature never ratified the amendment. It almost, but not quite, did so in the last session. The proposed legislation was sponsored by two black Houston legislators: Representative Alma Allen and Senator Rodney Ellis. House Joint Resolution 39 passed the House unanimously (Speaker Craddick abstaining). It passed the Senate State Affairs Committee unanimously and was put on the Uncontested Calendar.

But, somehow, it never passed the Senate.

Maybe it would have passed if Lieutenant Governor David Dewhurst had supported HJR 39 as strongly as he (unsuccessfully) did the twentieth-century version of the poll tax. Republicans wanted to recycle the poll tax into photo ID to keep blacks and browns from voting Democratic.

How things change—in a way! In the nineteenth and twentieth centuries, Democrats imposed the poll tax to keep blacks from voting Republican.

There is certainly black humor in the history of the issue.

In 1865 the North had just won the Civil War. But somehow it didn’t feel that way to the members of Congress (all Northern, of course).

“If we won the Civil War, how come we still have a Rebel President (Andrew Johnson of Tennessee)? Well we’ll fix that! We’ll impeach him (they did) and kick him out (they didn’t)!” thought the Congressmen.

“Never mind! We’ve freed the slaves with the Thirteenth Amendment!

“Wait a minute—now that we’ve freed the slaves we’ll have to count all of them (not just 3/5) in apportioning Congress and the Rebs will have a bunch more members in the House.

“We’ll have to fix that! We know the Rebs aren’t going to let the blacks vote. So we’ll pass the Fourteenth Amendment.” The Fourteenth Amendment says that if a state “in any way abridged” the right to vote of any male over 21 that state’s representation in Congress would be reduced. (The federal Constitution wasn’t amended to let women vote until 1920. The Texas Constitution, thanks to me father, was amended earlier.)

The Yankees were right, but they didn’t mean what they said. Sure enough, the Rebs imposed poll taxes to keep blacks from voting Republican, but I don’t know that any state’s representation was ever reduced.

After Reconstruction eleven Southern states passed poll taxes to keep poor black and white people from voting. Texas passed it in 1902.

In 1962, President John F. Kennedy urged Congress “to finally eliminate this outmoded and arbitrary bar to voting. American citizens should not have to pay to vote.”

On January 23, 1964, the Twenty-Fourth Amendment was ratified to ban the poll tax in federal elections.

On February 4, 1964 President Lyndon B. Johnson, the first Texan to be president, said that abolishing the tax requirement, “reaffirmed the simple but unbreakable theme of this Republic. Nothing is so valuable as liberty, and nothing is so necessary to liberty as the freedom to vote without bans or barriers.… A change in our Constitution is a serious event.… There can now be no one too poor to vote.”

In 1964, Texas was one of only five states still levying a poll tax. Following the recommendation of Gov. John B. Connally, the Legislature had proposed an amendment in 1963 repealing the poll tax provision in the Texas Constitution, but it was rejected by the voters. But in 1966 Texas voters finally approved another amendment doing the same thing.

Maybe next time the Texas Legislature will ratify the Twenty-fourth Amendment to the United States Constitution to ban the poll tax, a long-overdue gesture. Maybe the Lege will even ratify the Twenty-third Amendment letting citizens in the District of Columbia vote for President.

Bill Hobby was Lieutenant Governor of Texas 1973-91. Hobby
can be reached at [email protected].

Contact information for editors:
2131 San Felipe
Houston, Texas 77019
713-521-0960

Governor Pick Perry doesn’t like the way higher education is funded. He wants to micromanage it.

He doesn’t care that higher education is poorly funded. (Texas ranks 50th in percentage of high school graduates, 27th in college graduates.) The issue is neither higher education nor funding, issues about which he knows little and cares less.

The issue is the power of the Governor vs. the power of Legislature. The Texas Constitution gives the Governor the power of line item veto. The Governor can veto certain “items of appropriation” without vetoing the whole appropriations act. The line-item veto is almost meaningless because the Legislature can package items to keep a Governor from micromanaging.

Knowing that his plan will be unpopular, Governor Perry recently summoned the presidents of Texas public universities to his office and told them they would be in trouble if they criticized it.

The Governor wants to be able to veto “special items”. Special items are frequently research and public service projects undertaken by the universities that reflect the special needs of the community the university serves. These items are “special” because they are not funded by the formulas that generate the money for teaching and apply only to a specific university.

At the University of Houston, for example, space exploration in conjunction with NASA and superconductivity to increase the efficiency of power transmission are special items. So is the Center for Public Policy which does research on government issues, frequently with the support of the National Science Foundation or the City of Houston.

Special items are covered by a provision in the Education Code that appropriates money for higher education in a lump sum. In other words, the Governor would have to veto an entire university, not just a particular item.

Ninety years ago Governor James Ferguson did just that and was impeached because he did so. He vetoed the University of Texas appropriation because the university Regents wouldn’t fire the president who wouldn’t fire professors the Governor didn’t like. Ferguson summoned Regent George Washington Littlefield and told him he would not veto the appropriation if President Robert E. Vinson resigned. President Vinson asked Littlefield how he should respond. Littlefield said “I would tell him to go to hell!”

Vinson said that the expression was “somewhat out of line with my own customary forms of expression” but asked Littlefield “to convey the substance of his statement to the Governor as my reply, leaving the

exact verbiage to (Littlefield’s) own discretion”.

President Vinson also got divine guidance. Texas Episcopal Bishop George Herbert Kinsolving was closely associated with the University of Texas. As Vinson later told the story: “Just at that moment the ringing of the telephone interrupted the proceedings and the voice of Bishop Kinsolving came to my ears. ‘No matter how I know it, but I know what is going on,’ he said, ‘but don’t you resign.’ That message had much to do with the decision then made.”

Ferguson vetoed the appropriation that same afternoon and the University of Texas was in the ditch. But then a remarkable thing happened, probably unique in the history of public education. Two of the Regents pledged their fortunes by personally guaranteeing the university’s budget of $1,627,404. Littlefield and George Washington Brackenridge were long-time Regents who disliked each other intensely. They had served on opposite sides in the Civil War. They disagreed, often bitterly and personally, about almost everything except the welfare of the University. Both had given enormous amounts of money to the University. Various structures on the UT campus are named for them. Brackenridge also gave the city of San Antonio the park that bears his name.

The House then impeached Ferguson and the Senate removed him from office. (Accidentally or intentionally, Ferguson didn’t veto a particular assistant math professor. That’s micromanaging!)

Technically, Ferguson wasn’t impeached because of the veto, but the veto was the proximate cause. There were plenty of other grounds for impeachment. Ferguson had been indicted for misusing public funds. He was selling pardons. But it was the University of Texas veto that really got him in trouble.

The Legislature reappropriated the money. My father, who had succeeded Ferguson as Governor, signed the bill and all was well. My father beat Ferguson in the next election by a large majority.

The University was out of the ditch and the Regents were off the hook.

Ninety years later, Governor Perry is pretty confused about the powers of the Governor and the powers of the Legislature. In power struggles between the Governor and the Legislature, the Legislature wins.

Maybe the Governor should just issue another illegal executive order.

(Bill Hobby was a Regent of the University of Houston (1965-69), Lieutenant Governor of Texas (1973-91), and Chancellor of the University of Houston System (1995-97). He taught at the LBJ School of Public Affairs at UT-Austin (1990-95) and now teaches political science at Rice University. He can be reached at [email protected].

Poor Tom Delay! He can’t get off the ballot.

Poor Republicans! They can’t get him off the ballot!

Why?

Because in the early 1980s, both parties ignored their own voters in the primaries and replaced candidates whom the voters had nominated (“stalking horses”) with candidates more acceptable to the party leadership. Just as the Republican Party has unsuccessfully tried to do now by replacing Tom DeLay.

In other words, the Republicans are lying in a bed they helped to make. The result is likely to be that the only Republican seat to be lost as the result of DeLay’s shenanigans will be the one DeLay has resigned.

In 1983 the Legislature passed Senate Bill 122 to stop the parties from ignoring their own primary voters by removing nominees from the November ballot and replacing them with other nominees without the voters’ approval.

An amicus curiae (friend of the court) brief was filed in the recent lawsuit filed by the Democratic Party to keep the Republican Party from replacing former Congressman DeLay on the ballot.

The friends of the court were members of the Legislature in 1983. The brief pointed out:

“During the 1980 primary season, seven candidates from both major political parties declined their nomination. These candidates were four state representative candidates, two district judges, and one court of civil appeals candidate.

“In the 1982 election season, the trend accelerated with ten candidates declining the nomination, including statewide candidates. In the Republican Party, a district attorney candidate, two state representative candidates, one candidate for U.S. Representative, a State Treasurer candidate, and an Agriculture Commissioner candidate declined and were replaced. In the Democratic Party, a U.S. Representative candidate, a state representative candidate, and two district judge candidates declined and were replaced.”

When SB122 was heard in the Senate State Affairs committee the sponsor (then-Senator Kent Caperton) summed up the need for the bill:

“it clears a deficiency… concerning the replacement of nominees in primaries. The current code allows the possibility that the general public has no say in who is the nominee of particular parties. In fact, we saw that occur last spring where not through ineligibility, not through unavailability to serve, or not through any other reason than political considerations.”

State Affairs chairman Ray Farabee was concerned that an unforeseen catastrophic illness would be a legitimate reason for a candidate’s withdrawal but pointed out that a court should decide about that. Farabee wanted the illness to be documented by “providing for evidence to substantiate the illness so that it’s there and determined, as compared to people who are getting together and deciding that, well, I don’t feel too well, but it would be a lot better to run with this [other] candidate at this stage.”

SB122 was reported out of committee and passed by the Senate with little opposition.

The House committee addressed Farabee’s concerns by amending the bill “to allow replacement of a candidate who withdraws only if it was for “catastrophic illness” that was diagnosed after the 65th day before the primary election (i.e., that was unforeseen), “that would incapacitate the nominee permanently and continuously to prevent him from performing the duties of the office sought”, and that is certified by the signatures of two licensed physicians. These stringent requirements remain in current law.”

The Senate concurred in the House amendments overwhelmingly.

In other words SB122 passed the legislature with little controversy and strong bipartisan support. The bill was made necessary by bipartisan abuses of the Election Code as it existed until 1983.

I am proud that all this happened on my watch as Lieutenant Governor 23 years ago.

(Bill Hobby was Lieutenant Governor of Texas 1973-91. All quotes are from the amicus curiae brief. The full text of the brief is at www.hobbycomm.com/wph/amicusbrief.pdf and http://www.capitolannex.com/COURTFILINGS/68thAppendix.pdf)).

Public support for higher education is declining all over the country. In state after state support is going down. Tuition is going up.

In 2002, the University of Texas at Austin and Texas A&M University barely made the US News & World Report top fifty.

That’s right—the top FIFTY.

And that was three years ago in the good old days. Today, UT-Austin is 46th. A&M is 62nd.

Texas is spinning downward. We have already plunged past mediocrity in health care, poverty, and environment. Must we do so in education as well?

Never mind what past generations have provided for us in education. What has posterity ever done for me? Education, and in particular, higher education, has weak legislative support. That is strange because virtually all legislators are college graduates, mostly from public universities, yet public higher and secondary education are being starved.

Legislators are saying “Pull up the ladder, Jack. I’ve got mine.”

The best law the United States Congress ever passed was the GI Bill of Rights. It remade higher education and the nation. The GI bill after WWII created a great demand for admissions. As demand continued to grow with the baby boomers (and now their echo) and a tremendous increase in the percentage of high school graduates seeking a college education, reputation, money and demand became the underpinnings of prestige—money being among the strongest. Many of the parameters used by US News are tied to institutional wealth.

A few state universities came out of the pack. Virginia, Michigan, Berkeley, and North Carolina are known as the “public Ivies.”

Instead of a few hundred college students, today we have 15,000,000—80% in public universities.

PUBLIC VS. PRIVATE

Distinctions are shifting between public and private universities. Early on, state universities and colleges got nearly all their money the state tax dollars with little coming from students or gifts. Private universities were dependent on tuition dollars, benefactors or “contributed service” from priests and nuns. Now, the private universities get more and more public dollars through federal student aid, Pell grants, Perkins grants, Tuition Equalization Grants, and contracts.

At the same time, public universities are growing faster than the legislative will to pay for them, so students pay more. State universities are no longer highly subsidized from tax dollars. State universities used to be called “state-supported”. Today, “state-assisted” might be a better term. How about “state-located”? After all, they are on state land. Some wags even say “state-molested”.

Important differences remain between the publics and the privates but they are more in governance than fiscal.

Interestingly enough there seems to be a negative correlation among the publics in terms of percent of state funding and prestige. Public universities that get the fewest state dollars have the most prestige. For example, the University of Michigan gets only 10% of its budget from appropriated funds. The University of Virginia gets eight. (The University of Texas at San Antonio gets 27%.)

GOVERNANCE AND AUTONOMY

The greatest difference between private and public universities of higher education is in governance and autonomy. The privates have a great advantage here.

Language tells the tale.

Board members of private universities are called “trustees”. They see themselves as advocates of the college, supporters of its president and leaders in fundraising. Board members of state universities are called “regents”—rulers rather than advocates. They see themselves as overseers, representatives of the appointing authority, usually the governor of the state, and occasionally interfere in educational and social policy matters.

Legislative control of budgets by the Legislature and curriculum by the Coordinating Board, statewide control of programming and physical plants, tuition-setting authority at the state level, enrollment caps, collective bargaining agreements and much more constitute the list of differences in autonomy between the publics and the privates, with the privates coming out the winner in most cases. The recent decision of the Texas legislature to give tuition authority to the universities and their boards is an exception. Or at least it was until the Legislature, when regents actually did raise tuition, the Legislature said “We didn’t really mean it. We’re going to investigate you”. Of course it remains to be seen whether or not the legislature will further reduce appropriations as tuition rises.

Through all of this we are witnessing a dramatic reduction in public support for higher education and a shift of the burden to students and their families.

Fiscal strategies that encouraged the previously excluded—the poor and what were then called minorities—to attend college no longer have the support they once did. Texas, for example, has—or had—a tuition pre-payment program called Texas 2000. My wife and I bought prepayment packages for all our grandchildren—the best investment we ever made. But even that program has now been suspended because of declining public support and the resultant tuition increases.

The shift in support from grants to loans, along with the large increases in tuition, and fees at all universities place a financial burden that may frighten away those students who are the first in their families to seek a college education.

Those who will be excluded from college are the growth sectors of our society, the base needed to ensure an educated work force in the future. If affordable educational opportunities decline, workers will be imported, or work will be exported. Neither is good of our state or country.

Why are our leaders in Austin so determined that Texas be a mediocre state?

President Clinton’s end-of-term pardons have come in for a lot of criticism. Executive clemency, as Presidential or Gubernatorial pardons are called, has played its part in Texas history, too.

Governor Sam Houston pardoned murderess Mary Monroe because the Texas Supreme Court opinion upholding her conviction had been written by Oran Roberts, then heading the convention that would lead Texas into secession.

“I’ll pardon her”, Houston said. “No citizen should be deprived of liberty by such a fellow.” The pardon itself simply reads “It being shown to me by petitions and facts presented that there is reason for the exercise of executive clemency….”. Seems reasonable to me.

Houston well knew that there are injustices in the “justice” system that can lead to locking up people for no good reason. Look at the recent spate of convictions overturned by DNA evidence. Houston pardoned more people (including several imprisoned slaves) than any of his predecessors.

The ability of the sovereign to correct injustice is well founded in history and much needed in fact. It’s one small weight in the balance against a prosecutor (like Kenneth Starr) gone mad in a system that needs more such weights. President Clinton’s pardon of Susan McDougal, for example.

Congress can make nutty laws. Pardons can at least help correct legislative abuses and restore some sanity to the system. President Clinton’s pardon of the woman who was in the federal pen for having an eagle feather, for example.

In Texas, attention was focused on pardons during the administrations of Governors James E. (1915-17) and Miriam A. (1925-27, 1933-35) Ferguson. The Governors Ferguson pardoned hundreds of prisoners, many of whom were in prison because they had violated Prohibition laws. Prohibition of alcohol was the religious right’s War on Drugs of three generations ago. Prohibition laws filled the prisons and ruined lives then just as marijuana laws do now. The Fergusons rightly concluded that the State was better served by these men being home supporting their families.

The Fergusons, like President Clinton, were accused of selling pardons. There was no credible evidence that they did so.

Just as Sam Houston did, the Fergusons used the power to pardon to remedy racial injustice. When “Ma” Ferguson took office in 1925 she pardoned many black convicts. John Ed Patten was among those pardoned. Patten was a Fourth Ward businessman who had committed the crime, in 1918, of defending himself when attacked by a policeman who was doubtless doing a bit of racial profiling.

Patten was also Barbara Jordan’s grandfather. The shooting took place on San Felipe Street, just a few blocks from where I am writing this essay.

My father, Governor William P. Hobby, who succeeded Governor Jim Ferguson in l917, made frequent pardons. In 1917, he asked a committee to tour the prisons and look for deserving prisoners who had no friends or relatives to intercede for them. At Christmas he pardoned thirty-five “forgotten men”. At the end of his term as governor he pardoned a black man, a convicted murderer, who helped raise me. That man was a part of our family for half a century.

(Hobby, Lieutenant Governor of Texas (1973-91), teaches political science at Rice University. He can be reached at [email protected]. A fully sourced version of this essay may be found at http://www.swt.edu/hobby/.