Dateline Houston

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Tragedy has again struck Texas’s most vulnerable charges—its foster children. A 4-year-old boy and his 6-year-old sister both drowned while visiting Lake Georgetown with their foster parents on Sunday. Such horrors typically prompt calls for reform, but these particular deaths have the potential to disrupt controversial changes to the foster care system that are already underway. That’s because the agency that placed the children in their foster home is Providence Kids, a sister company of Providence Service Corporation, one of the major contractors Texas recently hired to take over and privatize a large swath of its foster care system under a privatization scheme called “foster care redesign.” (Read “Fostering Neglect,” the Observer’s June 2014 feature on foster care redesign here.) Under redesign, large lead agencies oversee dozens of private child-placing agencies, and the deaths call into question whether private contractors can effectively manage such agencies—even the ones they own.

The two children, originally from Waco, had lived with the foster family since August. Georgetown police say the children were playing a breath-holding game in two to three feet of water about 10 to 15 feet from the shore, according to press accounts. After the pair failed to surface for several minutes, a 12-year-old who also lived in the home went looking for them and found the bodies. The victims had two other siblings, a 1-year-old girl and a 22-month-old boy, who lived with the foster family but have since been moved. No names have been released.

The Department of Family and Protective Services (DFPS) is investigating the deaths. “This is an unspeakable tragedy,” said DFPS Commissioner Judge John Specia in a statement on Monday. “We will find out exactly what happened, and whether or not it could have been prevented. Foster children must be kept safe.”

One other foster child, 11-month-old Orien Hamilton, died in state custody this fiscal year. She was crushed to death by her foster mother’s ex-husband. Seven foster children died of abuse or neglect in Texas in the 2013 fiscal year.

Like almost all foster kids in Texas, the children who drowned were placed in their foster home by a private child-placing agency that recruits, trains and supervises foster families. DFPS has stopped placements with Providence Kids until it finishes its investigation. Providence Kids has 29 foster children placed in eight homes in Central Texas, and the department says Child Protective Services will visit each home as a precaution.

Texas has hundreds of private child-placing agencies, but Providence Kids is unique. It shares a childcare license with Providence Service Corporation of Texas, the for-profit company recently contracted by the state to oversee all the other private child-placing agencies in a vast 60-county area of West Texas.

Redesign is controversial for several reasons, including that it places a layer of bureaucracy between the state and its foster kids, distributes the same budget money among more parties—some of which, like Providence, have to turn a profit—and does not include the increased training and oversight that stakeholders say would prevent neglect and abuse. So far, the state has rolled out redesign in two regions and plans to start accepting bids on a third region this summer, a move many stakeholders are asking to delay until more data is available on how redesign affects foster kids’ lives.

For a company to take over a region, it must be a licensed child-placing agency. That means if Providence Kids lost its license because of the two child deaths, Providence Service Corporation would be in violation of its contract with the state.

But while this is possible, it’s not likely. Patrick Crimmins, a spokesperson for DFPS, says it typically would take more than deaths in one family to threaten the license of a child-placing agency. “If this investigation [of Providence Kids] turns up problems in other homes,” Crimmins says, “and persists and persists and persists, you put them on evaluation. If that doesn’t work, you kick it up to probation. At some point down the line, yes, a license could get revoked.”

David Goehring

Next week, the Sunset Advisory Commission will meet to hear testimony regarding its scathing report on the Department of State Health Services (DSHS), one of the largest and most important state agencies. “Scathing” is a term that gets thrown around a lot but really ought to be reserved for dispatches like this one, released in May, which saves special condemnation for the department’s many failures in running the state’s public mental health system. “This experiment was well-intentioned,” the report says, referring to the department as a whole, but DSHS “has struggled to address longstanding concerns, despite clear and repeated direction.” Because of this, most of the Sunset staff recommendations don’t break new ground but “reflect a need for the agency to simply do its job better.”

While the report specifies nine areas for improvement, its authors note that this list is constrained by the resources of their review, not by any limit to the department’s problems. They even suggest that by the time the Sunset review concludes next fall, future reports may question “continuation of DSHS as a standalone agency.” The report goes beyond critical and gets existential.

Some of the recommendations are specific, like calls to combat fraud in the EMS industry, to better protect vital statistics information, and to reduce the department’s regulatory role. But some are just damning pronouncements: “DSHS Has Not Provided the Leadership Needed to Best Manage the State’s Public Health System;” and “DSHS’ Numerous Advisory Committees Lack Strategic Purpose, Limiting Their Effectiveness and Wasting Resources.”

Perhaps the broadest and most troubling part of the report is its wholesale indictment of the state public mental health system. That system has two parts: outpatient community-based treatment, and inpatient treatment through the state mental health hospitals. According to the report, both are broken.

The mental health hospital system, finds the Sunset Commission, is in a crisis that “Requires Action, Starting Now” because of understaffing, inadequate capacity, and aging, remote facilities that need more that $200 million in upgrades. These aren’t new problems, the report notes: “Numerous plans and studies attempting to correct pervasive state hospital system issues have yielded few results, and the success of future plans is questionable… The State essentially operates the same mental health hospital system as during the last Sunset Advisory Commission review 15 years ago, despite years of planning and discussion.”

At least one thing has changed in that period, but it hasn’t helped matters. In recent years, Texas judges have sent more and more psychiatric patients to the hospitals for “competency restoration”—that is, to receive psychiatric treatment until they’re mentally competent to stand trial—exacerbating bed shortages. The special challenge of these so-called “forensic commitments” is that if state hospitals are full, a person charged with a crime who needs inpatient treatment can be held in jail, untried and often untreated, until space opens up. Long waits have led to lawsuits. Under pressure from the courts, the Department of State Health Services has reduced the wait time for forensic patients from an average of 77 days to 17 days over the last few years, but at a price. More forensic beds means fewer civilian beds, and this year, forensic commitments exceeded civil ones for the first time. In other words, if you need treatment from a state mental health hospital, your odds of getting it are now better if you’ve committed a crime than if you haven’t.

The outpatient mental health system is hardly better. The department “has not seized obvious opportunities to integrate… mental health and substance abuse services,” the report found. Half a million Texans suffer from a severe mental illness, two million have a substance abuse problem, and there’s plenty of overlap between those populations. But screening, assessment and treatment systems for the two groups remain separate, which “allows people with complex, co-occurring mental health and substance abuse issues to more easily fall through the cracks.” The department’s funding structure for community mental health providers is “irrational,” “byzantine,” and “disconnected from performance,” and despite collecting hundreds of data points, the department knows little about what programs work and why. These systems need “a complete re-evaluation and overhaul.”

In short, the Department of State Health Services fails to plan strategically or address structural problems because it’s “constantly operating in crisis management mode,” says the Sunset staff report. Mercifully, the report’s authors blame this on the department’s overly ambitious mission rather than the department itself. “[F]ew, if any, state agencies have the breadth and scope of DSHS’ responsibilities,” they write. “…[I]n many ways DSHS was set up to be a ‘jack of all trades, and a master of none.’” But this may be cold comfort if a future report recommends, as this one suggests, that state legislators dismantle the Department of State Health Services altogether.

Patrick Michels

Gov. Rick Perry

Back in March, Gov. Rick Perry sent a letter to U.S. Attorney General Eric Holder declaring his intent to defy a federal law designed to reduce sexual assault in prison. It was a very Perry letter, slinging around terms like “ridiculous” and “unacceptable” and “costly regulatory mess.” But perhaps the most Perry part was his vow to “encourage my fellow governors to follow suit.”

Now, saying a law is wrong for Texas is one thing. Saying governors of other states—you know, just anywhere—should defy the Prison Rape Elimination Act suggests Perry believes the law is wrong in general principle, not specific application. Or else he’s just grandstanding. (A Google search for “Rick Perry” and “grandstanding” returns 173,000 results.) Either way, Perry appears to have had limited success. May 15 was the deadline for governors either to certify their state prisons were compliant or promise to become so, and the Associated Press reported last week that just four other states joined Perry in saying they planned not to try: Idaho, Indiana, Utah and Arizona.

“Perry is sort of out on his own on this one, which is fantastic news,” says Jesse Lerner-Kinglake, who works for an advocacy group that fights prison sexual assault, Just Detention International.

Lerner-Kinglake is one of many observers who can’t work out why Perry picked this particular battle in the first place. The problems with the law that Perry lists are relatively minor, though he describes them as insurmountable—and some don’t actually exist. Lerner-Kinglake says Perry’s letter contains “so many basic errors. It’s really kind of simple stuff that anyone who took a minute to look at the standards would know.”

For example, Perry writes that governors must certify their state’s compliance “under threat of criminal penalties,” but that’s not true. The only enforcement mechanism is that a state can lose 5 percent of its federal corrections grant money. Perry also says the act’s compliance dates are “impossible to meet,” but governors can—and at least 10 did—give assurance letters by the May 15 deadline promising that they were actively working toward compliance.

Perry also seems to think the new requirements apply to “local jails” and would be too expensive for small counties to implement, but they wouldn’t have to, since the act covers only facilities under Perry’s operational control.

The further you get into the letter’s nitty-gritty, the stranger Perry’s defiance seems. “The rules appear to have been created in a vacuum,” Perry complains. But a 2010 letter to the Justice Department from the executive director of the Texas Department of Criminal Justice said just the opposite. The director wrote, “The agency had relatively few issues” with implementing the act, “because most of the recommendations were similar to agency policy… [I]t is apparent the Department of Justice gave careful consideration to the comments submitted by many interested parties…”

Livingston’s letter did bring up one of Perry’s big beefs, though: the law’s prohibition on cross-gender viewing of inmates showering, changing, or using the toilets. Perry and Livingston suggested that banning cross-gender viewing could force Texas to violate laws banning gender discrimination, since 40 percent of correctional officers are female. Poppycock, says Lerner-Kinglake. The area in which women couldn’t be stationed, he says, “is so limited in scope, and he’s making it out to be a deal-breaker. It’s just a matter of basic dignity.”

A 2013 report from an outside agency (uncovered by the blog Grits for Breakfast) also said half-walls could be used to shield inmates’ genitals and suggested more discreet camera positioning at one of the prisons. “[I]t is not a mainstream practice to have cameras pointed directly into toilet and shower areas,” the report noted. But Perry claimed re-positioning cameras would “increase the likelihood of assaults taking place, defeating the intent of the law.”

Perhaps the most understandable of Perry’s objections is that while the Prison Rape Elimination Act requires the state to keep prisoners under 18 separate from adults, Texas considers 17-year-olds to be adults, so the two standards conflict. But none of the other nine states that incarcerate 17-year-olds as adults appear to have defied the law, and the separation requirement doesn’t kick in for three years. Just in March, the House Criminal Jurisprudence Committee held a hearing on raising Texas’ adult prosecution age from 17 to 18. Yet this issue and the alleged gender discrimination problem were the sticking points Perry reiterated in a May 16 letter that was much milder in tone.

Present in the first letter but missing from the second was Perry’s claim that Texas already effectively prevented sexual assault in its prisons. Actually, Texas reports almost four times as many prisoner sexual assaults as the national average, according to a federally-funded study from the JFA Institute. Elizabeth Henneke, an attorney with the Texas Criminal Justice Coalition, warned at a House hearing that noncompliance could leave the state open to litigation and pointed out that one ex-inmate, who says he was raped at the Travis County Jail, is already suing for $2 million, alleging officials “displayed deliberate indifference to his safety by failing to comply with PREA.”

“Of all the misinformation that Perry puts out there,” Lerner-Kinglake says, “about what the standards require and exaggerating how onerous it is, the most problematic thing is that he tries to paint Texas as having prisons that are increasingly safe for inmates. The data from the federal government does not paint that same picture, and neither does what we [Just Detention International] hear from the inmates themselves… We get tons of letters from inmates who have been sexually assaulted in prison, and a disturbing number of them come from Texas.”

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Recent stories from diverse parts of Texas suggest that increased awareness, public pressure and new technology are creating more accountability for law enforcement officers who use excessive force.

On Saturday, the City Council of the small central Texas town of Hearne voted unanimously to fire a police officer who shot and killed a 93-year-old woman in her home. Her nephew had called police after the woman threatened him with a revolver, angry that he wouldn’t turn over her car keys. The officer’s firing is especially remarkable because the woman’s nephew says she shot twice before being killed. Councilmembers may have been swayed by national media attention and local outrage, but also by the officer’s history. In just two years on the force, Stephen Stem, who is white, killed two black citizens in the city of about 5,000. The first shooting took place a few months after Stem became an officer. That time, a grand jury cleared Stem and he returned to work.

On Monday, a federal jury found that four Galveston police officers used excessive force when they beat and pepper-sprayed members of a wedding party at a bar in 2008. The jury awarded the dozen plaintiffs almost $49,000 in damages. The brawl started when an off-duty officer working as a security guard tried to arrest a 19-year-old, Cole O’Balle, for underage drinking. O’Balle allegedly struck the officer, who called for backup, and about 30 officers—nearly every on-duty officer on the island—responded. They beat O’Balle so badly he had to be flown to the hospital by helicopter. Nine officers involved were temporarily suspended and four received written reprimands. The jury did not, however, find consensus on the $13 million claim by former Astros pitcher Brandon Backe, another attendee who says the injuries police gave him that day ended his career.

Also on Monday, an Austin grand jury indicted Detective Charles Kleinert on a charge of manslaughter for shooting an unarmed man in the back of the neck in July. Kleinert was investigating a robbery at a bank when Larry Eugene Jackson Jr. tried to use a fake name and ID to get service there. The bank manager reported this to Kleinart, who tried to question Jackson and pursued when the man fled. Kleinart flagged down a passing motorist to use his car and chased Jackson under a bridge where he says he shot Jackson accidentally. Kleinart, who’d been an officer for almost 20 years, retired in October before an internal affairs inquiry was complete, and the Austin Police Department decided not to complete its investigation. With no official negative findings against Kleinart, the file on the killing was sealed. (For more on the secrecy of internal affairs investigations, read the Observer feature “Crimes Unpunished” here.) If convicted of the second-degree felony, Kleinart could face up to 20 years in prison. It’s the first time a grand jury has indicted an Austin officer for an on-duty shooting in more than a decade.

Finally, in Dallas on Wednesday the City Council approved a $105,000 settlement in a lawsuit claiming excessive force during a home search in 2010. Danny Cantu alleges officers threw a flash-bang grenade into his house, entered without warning, zip-tied his hands and then beat him until he lost consciousness. Officers say they were executing a no-knock search warrant because they believed Cantu was trafficking cocaine for a Mexican drug cartel. They found 0.1 grams of cocaine and a sawed-off shotgun, but Cantu was never charged with a crime in connection with the search warrant. The Dallas Morning News reports that verdicts or settlements in lawsuits against the Dallas Police Department have cost the city about $6 million since 2011. There have been 10 six-figure awards in that time. For contrast, between 2006 and 2010 there were six awards of that size totaling just $1 million.

Video played a key role in several of the recent cases. “The frequency with which we now have videotapes has certainly leveled the playing field,” Don Tittle, a lawyer for one of the plaintiffs, told the Dallas Morning News. “Now, in all those scenarios where we had an individual’s word against an officer—which was always a loser for the individual—if there is videotape, it doesn’t lie, and it has changed things.”

Patrick Michels

Youth in the Texas Juvenile Justice Department's Phoenix Program, photographed in September 2012.

Until recently, the conservative pivot from “tough on crime” to “right on crime”—policies that push de-incarceration for nonviolent offenders—has been couched in economic terms. Locking people up is expensive. If it doesn’t increase public safety, why do it? But a new criminal justice study from a prominent right-wing think tank barely even mentions money. Instead, other Republican love objects take the fore: family and responsibility.

The subject is confinement of youth for status offenses. A status offense is a behavior outlawed for minors that would be allowed if an adult were doing it, like drinking, violating curfew or, most vaguely, “incorrigibility.” Federal law prohibits extended detention of children for status offenses, but the Texas Public Policy Foundation (TPPF) estimates that thousands of minors are still hauled off to jails because of a legal loophole: violating a valid court order. It’s basically contempt of court for kids. If you run away from home, and a judge tells you not to do it again, but you do, then you’ve violated a valid court order and can be sent to a group home, detention center, or other residential facility. The practice has dropped in popularity nationwide, and Texas accounts for more than 15 percent of confinements for status offenses nationally—about 1,300 a year.

The study’s authors call these detentions unnecessary government intrusion. “When I was a kid, half of this stuff seemed to be juvenile shenanigans,” says Derek Cohen, a policy analyst for the TPPF’s Center for Effective Justice. “[It’s] the sanctity of the family, and I would say the responsibility of the family to discipline their own children without the state interceding.”

Punishment for status offenses are distinct from criminal punishments because they’re meant to protect youth from themselves rather than to protect society. Putting kids who’ve only, say, run away from home in close quarters with serious juvenile criminals risks fostering antisocial attitudes and gang affiliation, the report says. “In addition, the confinement of status offenders is expected to increase barriers to reentry into community, home, and school settings, and increase the likelihood that they will be rearrested, re-adjudicated, and re-incarcerated,” write the study’s authors.

It’s an interesting tack for the think tank that recently posted a piece on its website titled, “Forcing Reusable Bags On People Really Is Dangerous.” Research indeed shows that criminalizing youth misbehavior such as truancy (which in Texas, unlike most states, can be a misdemeanor) does more harm than good. But the same research demonstrates that other barriers to re-integration, like the many restrictions on felons, increase the risk of continued criminal behavior. The Texas Public Policy Foundation folks see some of this as government overreach, like the occupational licensing requirements that bar felons from obtaining certain jobs.

But they do have a limit. Will the state’s foremost conservative think tank someday advocate for ex-cons to be eligible for food stamps? “We haven’t considered that,” Cohen says. “That’s not really in our bailiwick.”

Greater Houston Partnership / Richard Carson

Houston mayor Annise Parker at the State of the City Address

Houston Mayor Annise Parker’s proposed civil rights ordinance wasn’t a day old before a religious group said it evoked “fear” that Christians would be punished for “practicing our historical beliefs.”

Ah, history. Have you ever gotten it wrong?

Parker announced the new ordinance yesterday in her annual State of the City address. Though still being drafted, it would codify an existing executive order prohibiting discrimination by city government and its contractors but also cover housing and public accommodations. That means retail stores, restaurants, bars, and any service provider with a brick-and-mortar location could be cited for discrimination based on age, sex, race, disability, veteran status, sexual orientation or gender expression. The Office of the Inspector General and a new seven-member Human Rights Commission would investigate complaints and try mediation first, though failing that the offender could be charged with a misdemeanor and fined.

The fuss, of course, is over including gay and transgender Houstonians among the protected. The Texas Pastor Council, a far-right group that has called Parker a “sodomite,” issued an open letter to the mayor today calling the “San-Antonio Style [sic]” ordinance a “Bad Fit for Houston.” It’s referring to the LGBT non-discrimination ordinance San Antonio passed in September after much hullabaloo. The letter says that the ordinance “assaults not only the values but the basic First Amendment rights of city citizens, business owners and churches to live, speak about and practice their faith.” It also spells Jim Crow “Jim Crowe.”

San Antonio had to pass an LGBT-specific ordinance because—like every other major city in the United States—it already had other civil rights protections. Houston, a majority-minority city and one of the most diverse in the nation, has none. Parker states her goal is not just to create local recourse for discrimination but to take a stand as a city. “[T]he Houston I know doesn’t turn its back on inequality,” she said.

In a press conference following the speech, Mayor Parker said the ordinance is not a primary focus of her final term in office and that she hopes the City Council will pass the measure quickly and “get on down the road.” But her administration must have known it would meet resistance. The whole State of the City Address, which was hosted by the Greater Houston Partnership, the city’s most powerful business group, was structured to psychologically prime its audience for acceptance. The opening invocation by a Catholic priest mentioned diversity, differences and those needing “special protection,” and included Mayor Parker’s lesbian partner in its blessings. As the large, be-suited crowd enjoyed their chicken and haricot verts, three huge screens behind the stage alternated triptychs of Mayor Parker doing mayor things—plus one image of her wedding day—with affirmations like “Houston is tolerant” and “Houston is inclusive.” The sayings were pretty pointed. “Houston is open-minded. Houston is unbiased. Houston does not discriminate.”

When she spoke, Parker saved announcing the ordinance for last. The audience laughed at her jokes and interrupted repeatedly with applause as she detailed the city’s successes—a hot economy, infrastructure investment and lowered crime—but they responded tepidly to the speech’s capstone. That may have been because business owners are concerned about frivolous complaints or because the bathroom lines were going to be really long.

Parker plans to present a draft of the ordinance April 30th and place it on the City Council agenda for May 7th. She says most council members have expressed support for LGBT protections so she expects quick passage, but backers are concerned that groups like the Texas Pastor Council will successfully petition to add a referendum on it to the November ballot. Even if they do, they may have a hard road. Houston narrowly but consistently leans Democratic. Back in 2001, voters amended the city charter to ban city spousal benefits for anyone except “legal spouses,” but Parker recently defied that successfully.

“It’s long past time that we ensure equal protection for all of our residents,” Parker said in a statement yesterday. She’s betting the city that elected her three times agrees.

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Craig Rudy Reynolds was lucky three times, but not four.

In 1990, when Reynolds was convicted of sexual assault of a child, Texas didn’t have a public sex offender registry. Lawmakers established one just a year later, but it applied only to convictions after September 1991, so Reynolds was exempt. Then, in 1997, legislators changed the law to require all sex offenders convicted after 1970 to register—but only if currently incarcerated or on probation or parole. Reynolds had already served his full five-year sentence. He was a free man.

But it didn’t last. In 2005, lawmakers amended the statute again to require every post-1970 sex offender to register, whether supervised or not. Reynolds, who’d done his time a decade before, says he didn’t know about the change, but that didn’t matter to the court that found him guilty of failure to register in 2009.

The Court of Criminal Appeals, Texas’ highest for criminal cases, heard Reynolds’ appeal in February. This time, he argued both that he couldn’t have known he was supposed to register and—more intriguingly—that the new requirement is unconstitutional because it was retroactive punishment.

The U.S. Constitution forbids ex post facto laws, which change the legal consequences of an act committed before the law was passed. That’s why you can’t go to jail for having eaten apples in 1970 if they’re outlawed in 2015. But you can, at any time in the future, get added to an apple-eater registry, denied an occupational license, and kicked out of public housing. Those are considered civil penalties, meant to protect the public, rather than punitive ones meant to punish or deter. Unlike punishment, civil penalties can apply retroactively.

“Criminal convictions carry a wide variety of what are called collateral consequences,” says Jennifer Laurin, a professor at the University of Texas School of Law. “In Texas, there are dozens and dozens of them.” For example, most felons in Texas can’t get welfare, run for office, serve on a grand jury, or drive a school bus. Restrictions like these can be enacted at any time and affect people whose crimes are long behind them.

So what makes something a civil penalty and not a punishment? The Legislature’s say-so. In court challenges, the effect of a law has been considered less important than its stated intent. “Obviously [sex-offender registries] do have a consequence of making life very difficult … and are certainly experienced by the person, as well as the community, as punishment in a meaningful sense,” Laurin says. “Nevertheless, that’s not the primary purpose of them.”

In the end, the Court of Criminal Appeals declined to rule on whether Texas’ registry law can be applied retroactively, saying Reynolds should have brought that up earlier. Reynolds lost his appeal and now faces another five years in prison.

Laurin says such civil penalties are on the rise. “There are states that have domestic violence registries,” she notes. “There are states that have animal cruelty registries. There are states that have at least proposed DUI and DWI registries.”

The main check on such expansions is political. “The more that the general public is affected… the harder it is for the Legislature to enact,” Laurin says. “The reality is that convicted sex offenders don’t have much of a lobby.”

Patrick Michels

Texas Attorney General Greg Abbott

Last week, I think we can all agree, was pretty rough on Greg Abbott. After weeks of Wendy Davis pushing the fair pay issue, it finally went down like a vending machine: slow, then fast, then with treats for everyone. But Davis and the media weren’t the only ones giving Abbott a hard time. On Wednesday, the Texas Court of Criminal Appeals got into the act, issuing a response directed at Abbott that could also legally be considered a burn.

It went like this. In October, the court threw out a 2005 statute banning sexting between adults and minors because the language was too broad. It could criminalize constitutionally-protected speech, the court said, and besides, everything about such exchanges that could be illegal already was: harassment, obscenity, sharing pornography and soliciting sex. The 2005 law made sexually explicit online contact with minors for sexual gratification a third-degree felony punishable by up to 10 years in prison, but the court overturned it 9-0.

Greg Abbott was displeased. He asked for a rehearing, citing a 2011 law that requires the court to notify the attorney general’s office and give it 45 days to respond whenever the constitutionality of a Texas law was challenged.

But instead of reconsidering its ruling on sexting, the court threw out the notification requirement on Wednesday. Not our job, they said. Tipping off Abbott’s office is “not only non-judicial but would operate solely for the apparent benefit of the attorney general,” reads a footnote to the unanimous opinion. “And to what extent the attorney general would benefit from receiving such notice is elusive, given that the attorney general has no authority to appear in criminal cases before this court.”

Damn.

In a concurrence, the presiding judge, Sharon Keller, called the requirement a violation of the separation of powers. Moreover, “during the last fiscal year, this Court disposed of well over nine thousand matters,” many of which addressed constitutionality, Keller wrote. If the Attorney General wants to know about them, the list is “available on its website.”

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Kesha Rogers

By now, you’ve probably heard that Kesha Rogers—a perennial candidate from Houston who wants to impeach Obama—is in the lead among Democratic candidates to challenge U.S. Sen. John Cornyn, according to a University of Texas/Texas Tribune poll released on Monday.

That’s bad news for a party pushing a narrative about resurgence, relevance and seriousness. Yesterday the Texas Democratic Party sent an email with the subject line “Don’t Vote For Kesha Rogers” that called her candidacy “an insult” and mentioned that she’d “paraded around Texas with a poster of the President with a Hitler mustache.”

But while it’s easy—and, let’s face it, fun—to write about mustaches and plans to industrialize the moon (more on that in a minute), Rogers could very well be the Democratic nominee. I talked to her to learn where she stands on other issues important to Democrats.

First, some background: Rogers is a LaRouche Democrat, meaning she follows Lyndon LaRouche, a conspiracy theorist whose devotees advocate a world gold standard and want to colonize Mars. At 37, Rogers has had no career other than a certain brand of politics and has never held elected office. In 2006, she ran (unsuccessfully) for chairman of the Texas Democratic Party. In 2010 and 2012, she ran for Congress, winning the Democratic nomination both times before decisively losing the general. Her new lead is not small, but neither is it immutable. Though almost three-quarters of those surveyed had no opinion, Monday’s poll shows her pulling 35 percent among likely voters in a five-way race. Her closest competitor, David Alameel, trails with 27 percent despite an endorsement from Wendy Davis.

When I asked to speak with Alameel, his campaign responded with an email calling the new poll “nonsense.” His spokesperson, Suzie Dundas, wrote, “The only poll that matters will be on March 4, when voters will choose David’s vision for Texas – withdrawing from Afghanistan and reinvesting the billions back here at home to create jobs, ensure a quality education for all children, and protect Social Security and Medicare – over all others.”

Maybe. The Democratic Party certainly hopes so. But just in case, let’s meet our front-runner.

In some ways, Rogers fits in with many of her party. Rogers wants to abolish the death penalty. She would protect unemployment benefits, food stamps and Social Security. She wants to reform campaign finance laws and stop drone attacks, and she thinks a true Democrat is “one who looks out for the lower 80 percent of the population.”

But Rogers also thinks climate change is “a fraud.”

“The green environmentalist agenda should be stopped and destroyed,” she told me. “[It is] an agenda for population reduction.”

And her financial policy? “We have to bankrupt Wall Street,” Rogers says. “We have to shut down the bail-in, bail-out policy [that’s] taking away our industry, our jobs, our infrastructure and put an end to bailing our quadrillions of dollars of speculative gambling activity.”

Another policy priority is planetary defense, which is “how we are going to defend the planet from asteroids which are very seriously threatening the planet.” The same technology push will help with the “development of a successful industrialization of the moon,” she says, “[for] the mining of raw materials and resources such as helium-3 on the moon, which is a productive resource for developing fusion. I am a very strong supporter and proponent of fusion development as a source of energy.”

This is all part of Rogers’ usual platform and she speaks about it with practiced conviction. But she’s less forthcoming about other policy areas. When asked her stance on abortion, she says, “First of all, I don’t believe in single issues,” though she specifies that she’s pro-life meaning she’s in favor of “stopping the threat of thermonuclear war.” Would she vote to overturn Roe v. Wade? She pauses for a very long time, then says, “No. I’m not sure.”

She’s opposed to drug legalization, coercive interrogation and would raise the minimum wage. But what about gay marriage?

“My concern right now is that we have a lawless president in the White House,” she says.

When pressed, she says, “I’m telling you the same thing I tell these people. I’m telling you that my concern is not on single issues. And so therefore my concern is on making sure that whoever you are, you’re not going to be threatened, that your lives are not going to be endangered by the threat of thermonuclear war, which we are now facing.”

I ask again and she refers me twice to her website, a search of which returns no results for “gay,” “homosexual,” or “marriage.”

“Okay fine,” I thought. Giving in, I asked Rogers how, as the U.S. Senator from Texas, she would prevent thermonuclear war.

“The way you prevent thermonuclear war is that you have to actually have the interest of nations in mind. We need a program for peace… We all need food. We all need water… You have to respect these different cultures, but at the same time, we have to figure out what is in the interest of every single human being.”

Who could argue with that?