Perry, Abbott are guilty of lawsuit abuse

Posted on from Corpus Christi Caller Times in In the News

The federal government has been trying to give Texas $830 million for education. Texas leaders are not making it easy.

Gov. Rick Perry and Attorney General Greg Abbott assert that the feds are trying to deny rather than give Texas the money. The feds did indeed deny Texas’ application for the money. But there are reasons, which we’ll explain. The government, in the meantime, has set aside the money specifically for Texas until all is worked out.

The dispute centers on Perry and Abbott’s assertion that the application process requires the governor to violate the Texas Constitution. They do have a legal argument — a debatable one undone elsewhere in the very Constitution they cite, but we’ll get to that later.

Diplomacy could have solved the matter easily. The feds have been accommodating. But this being an election year, confrontation is the ploy that allows Perry to run for re-election against Washington rather than against his opponent. So Abbott filed suit Sept. 23 against the U.S. Department of Education. The lawsuit, among other things, “prohibits Respondents from distributing funds allocated for Texas under the Education Jobs Fund to any other state or for any other purpose, pending judicial review,” which is funny given that the Respondents already had set the money aside for Texas. Lt. Gov. David Dewhurst, Texas House Speaker Joe Straus and Education Commissioner Robert Scott are named among the plaintiffs but this is mostly Perry and Abbott’s show,

This all started because the federal government gave Texas $3.2 billion in stimulus funds for education in 2009 and Texas used it instead to offset other expenses rather than augment education.

U.S. Rep. Lloyd Doggett, D-Austin, not the only one who took offense, succeeded in passing an amendment aimed at preventing any more diversions of education funds by Texas. The amendment requires the governor to guarantee no drop in state education funding for the next three years, as a condition of receiving the $830 million.

Perry and Abbott argue, correctly, that Congress singled out Texas. Abbott in a news release referred to it as “the heightened Texas-only standard.” It was, indeed, heavy-handed by Doggett.

Their primary assertion, however, is that the Doggett Amendment would require Perry to violate the Texas Constitution because the Legislature, not the governor, allocates funds and can do so only two years at a time. The Doggett Amendment requires a three-year guarantee.

Abbott’s reading of the Texas Constitution is correct on the specific point he cites, His opponent, Democrat Barbara Ann Radnofsky, setting out to prove that this is just needless political theater, read further into the Constitution and found something that appears to trump Abbott’s legal premise:

“The Legislature shall not have power to … in any manner divert from its purpose, any special fund that may, or ought to, come into the Treasury; and shall make it penal for any person or persons to borrow, withhold, or in any manner divert from its purpose any special fund, or any part thereof.”

That appears not only to settle the issue of where that money has to go, but also where last year’s $3.2 billion should have gone. The $830 million, like last year’s $3.2 billion, was given specifically for education, so that would seem to count as “special.” The $830 million most likely will and, as indicated by federal action and by Abbott’s lawsuit, “ought to” come into the Texas Treasury.

Which brings us to the “penal” part. It would seem – though Radnofsky didn’t suggest it – that everyone who had a hand in diverting the first $3.2 billion ought to be in big trouble, according to that historic document Perry and Abbott have been waving around and that Radnofsky has read.

She, by the way, accuses Abbott of legal malpractice on the matter of the $3.2 billion. She says Abbott failed to advise against diversion of the funds and therefore has put Texas in peril of a $3.2 billion clawback. Luckily the feds haven’t shown interest in clawing back.

Radnofsky also points out that Perry signed for the $3.2 billion with no caveat about the Texas Constitution even though that money had a three-year horizon and he, not the Legislature, was putting his name on the line for it.

Even without benefit of this legal solution, Perry could have found a political one. He could have made the promise to the feds and maybe, unlike last time, it wouldn’t have been broken. He has been a politician too long not to have made promises he didn’t keep.

Lost in all this gamesmanship are the schoolchildren of Texas, except when they are useful as props in news releases. Speaking of news releases, Doggett wryly observed to the Texas Independent that Abbott’s news release was longer than his lawsuit. The petition was about 550 words and the news release more than 1,500.

One final, only mildly tangential observation: This lawsuit, clearly frivolous, is the opposite of tort reform.