Overhaul of ERCOT board could replace experts with political appointees

State lawmakers are now trying to change the way ERCOT is governed by requiring members to live in Texas and giving more board seats to political appointees — changes that experts say may do little to improve the power grid.

By Mitchell Ferman, The Texas Tribune

During February’s deadly winter storm, Gov. Greg Abbott and many state lawmakers quickly criticized the Electric Reliability Council of Texas because several members of its large governing board reside outside Texas.

Many of the out-of-state board members are experts in the electricity field, but resigned following criticism of the agency’s oversight of the state’s main power grid during the storm that left millions of Texans without electricity for days in freezing temperatures.

State lawmakers are now trying to change the way ERCOT is governed by requiring members to live in Texas and giving more board seats to political appointees — changes that experts say may do little to improve the power grid.

One former board member who resigned after the storm, Peter Cramton, criticized legislation for politicizing the grid operator’s board.

“These people would be political types without electricity expertise,” he told The Texas Tribune.

The Texas House has already approved House Bill 10, which would remove independent outside voices on the ERCOT board and replace them with five political appointees. The governor would appoint three of those people, while the lieutenant governor and speaker of the House would each appoint one. None of the appointees would be required to be electricity experts. The only requirement is that appointees live in Texas.

Senate Bill 2, which has cleared the upper chamber, would give the governor five ERCOT board member appointments.

Politicians previously have not had such direct involvement in the ERCOT board, whose members are currently selected in a variety of ways. Some are chosen by ERCOT’s own nominating committee. Others are appointed by companies and consumers participating in the electricity market, with members representing various power sources.

The political appointees replace what are now called “unaffiliated members,” who mostly served as outside expert voices. The other board members currently represent regions across the state that make up the ERCOT grid as well as nonvoting members such as the chair of the Public Utility Commission, which oversees ERCOT.

Some power grid experts have said in legislative testimony, at industry events and in interviews that they don’t see how giving more power to the political class — and making minor tweaks like requiring all board members reside in Texas — could improve the grid operator.

“From the consumer standpoint, we really depend on those unaffiliated directors to make decisions that are in customers’ interest and in the interest of the overall health of the ERCOT market,” Katie Coleman, who represents Texas Industrial Energy Consumers, said at a recent industry conference.

On Monday, the Senate Jurisprudence Committee took up — but did not vote on — HB 10, the lower chamber’s high-priority legislation to change ERCOT’s governance. State Sen. Nathan Johnson, D-Dallas, raised concerns about the bill.

“We represent to the public that ERCOT is an independent agency, and yet under the various options we have before us between the two chambers, we’re appointing members politically,” Johnson said. “Doesn’t that undermine the notion of independence of ERCOT?”

State Sen. Charles Schwertner, R-Georgetown, acknowledged that “having political appointees has pluses and minuses.”

“Sometimes having a political appointee has the added advantage of understanding the political process,” Schwertner said. “Obviously the downside is they’re political appointees looking after the political interests of those that appoint them.”

ERCOT is overseen by the PUC. That entity already has political appointees: All three board members are appointed by the governor. Abbott had appointed all three members of the PUC who were in place leading up to and during the deadly winter storm. All three resigned after the storm.

On Monday, Schwertner argued in favor of HB 10 and asked for his colleagues’ support.

“After the Valentine’s Day storm and failure of our electric system, many Texans were alarmed to learn that many members of ERCOT’s board were not residents of Texas and were not experiencing many of the same hardships as many of our fellow Texans were suffering at that time,” Schwertner said. “Further, many legislators were frustrated by the lack of accountability on the board, especially regarding the members of the board that would be unaffiliated members.”

Cramton, the former ERCOT board member, is also an economics professor at the University of Cologne in Germany and an expert in electricity market design. He was one of the unaffiliated ERCOT board members who mostly served as outside expert voices.

“I doubt you could find an expert anywhere that would say eliminating the independent experts from the ERCOT board was an improvement,” Cramton said.

Another provision of both chambers’ legislation requires all board members to reside in Texas, which would prevent experts like Cramton from sitting on the ERCOT board in the future.

“I cannot imagine how this change could improve resilience to winter storms,” Cramton said.

Former PUC Chair Pat Wood, speaking at a recent industry conference alongside Coleman, echoed some of Coleman’s and Cramton’s concerns.

“You had the independent voice there to check market participants,” Wood said.

Caitlin Smith, an energy adviser in Austin and an ERCOT expert, raised concerns about political appointees who aren’t subject matter experts having access to critical information.

“If you’re looking at information and you don't understand what it's saying, I think that increases the risk of that critical information,” Smith said. “That’s for both keeping the grid on and preventing things like Enron.”

On Monday, the Senate Jurisprudence Committee took up — but did not vote on — HB 10, the lower chamber’s high-priority legislation to change ERCOT’s governance. State Sen. Nathan Johnson, D-Dallas, raised concerns about the bill.

“We represent to the public that ERCOT is an independent agency, and yet under the various options we have before us between the two chambers, we’re appointing members politically,” Johnson said. “Doesn’t that undermine the notion of independence of ERCOT?”

Bills restricting abortion, including one that bans procedure as early as six weeks, gets Texas Senate OK

The slate of bills must still go to the House for approval.

By Shannon Najmabadi, The Texas Tribune.

The Texas Senate on Tuesday approved five bills restricting access to abortion, including a priority measure that could ban abortions before many women know they are pregnant.

The measures, which abortion rights advocates call some of the most "extreme" nationwide, are among the earliest bills to be debated by the full Senate — whose presiding officer, Lt. Gov. Dan Patrick, has given two abortion proposals top billing this session. The bills were passed 19-12. They must still be approved by the House before becoming law.

Senate Bill 8 would ban abortions after a fetal heartbeat has been detected, which can be as early as six weeks, according to a legislative analysis. The bill has an exception for medical emergencies but not for rape or incest.

The bill would also let anyone in Texas sue an abortion provider if they believe they violated state laws, regardless of whether they had a connection to someone who had an abortion or to the provider. A person who knowingly “aids or abets” others getting abortions prohibited under state law could also be hit with lawsuits, according to a bill draft.

“We're setting loose an army of people to go sue somebody under a bill that will likely be held unconstitutional,” state Sen. Nathan Johnson, D-Dallas, said during a debate about the bill. “They could be sued over and over and over again having to pay $10,000,” which is the minimum proposed damages in the bill.

Similar “heartbeat bills” have been passed in other states but have been blocked by the courts.

State Sen. Bryan Hughes, R-Mineola, the lead author of SB 8, said unique legal language in the bill makes him believe it will be upheld. It’s intended to “protect our most vulnerable Texans when the heartbeat is present,” he said.

Senate Bill 9, another Patrick priority, would bar nearly all abortions if the U.S. Supreme Court overturned the Roe v. Wade decision or otherwise altered abortion laws. It would create a possible fine of $100,000 for doctors who perform abortions after the law goes into effect. Sen. Carol Alvarado, D-Houston, said the fine for sexual assault in Texas has a $10,000 maximum.

“Why would we punish a doctor who performs an abortion on a victim of rape or incest more than the actual rapist?” she asked.

“I would say that the problem here is not the amount of the fine on the doctor but on a rapist,” state Sen. Angela Paxton, SB 9’s author, responded.

Other legislation approved by the Senate Tuesday would bar later-term abortions in the case of severe fetal abnormalities — closing what the bill’s authors have likened to a “loophole” and forcing people to carry ill-fated or unviable pregnancies to term, according to experts and advocates. Women in that situation would be provided with information about perinatal palliative care, or support services, which they may not have been aware of, the bill’s author said.

Another bill, Senate Bill 394, would bar pill-induced abortions after seven weeks. Guidelines from the Food and Drug Administration approve the use of abortion pills up to 10 weeks. Nearly 40% of abortions performed on Texas residents in 2019 were medication-induced, according to state statistics.

Most abortions in Texas are banned after 20 weeks. Women seeking an abortion must get a sonogram at least 24 hours before the procedure, and their doctor must describe the sonogram and make audible any heartbeat.

Dozens of abortion-related measures have been filed this legislative session, including one that would open up abortion providers to criminal charges that carry the death penalty. Anti-abortion activists have urged lawmakers to challenge the Roe v. Wade decision, citing the new conservative makeup of the U.S. Supreme Court. Nearly every Republican in the Senate has signed on as an author of SB 8, one of Patrick’s priorities, as has Brownsville Democrat Sen. Eddie Lucio Jr., who said during a debate Monday that he believes life begins at conception.

A sixth abortion-related bill advanced Tuesday would require a contractor to offer counseling and other resources to a person seeking an abortion. That person would receive a pin to verify she received the offer, and the pin would then be destroyed, said Paxton, the bill’s author. Earlier bill drafts said the woman would get an identifying number that would be stored in a state database.

Sen. Sarah Eckhardt, D-Austin, asked what services the women would be referred to — pointing to how poor most parents must be to qualify for Medicaid in Texas. A parent with one child would need to make less than $200 a month to qualify, the strictest criteria of any state, according to the Kaiser Family Foundation.

“So we're going to spend $7 million annually for somebody who is less qualified than their doctor to give them advice on something that they probably aren't eligible for?” she asked Paxton.

Paxton said the bill could connect women to support services like housing, resume development, child care and adoption services, and said it could help women who would prefer to carry their pregnancy to term if the circumstances were different.

“If she wants to call” and ask for her code, she can get it and just hang up, Paxton said. Her bill was passed by the Senate 20-11.

GOP Texas senators push shakeup of regional appeals courts in move likely to reverse Democrats’ gains

Dallas would be in a district with Austin – and Llano and San Saba – under Houston Sen. Joan Huffman’s consolidation plan.

By Allie Morris and Robert T. Garrett, Dallas Morning News

AUSTIN — The Texas Senate’s ruling Republicans advanced bills Thursday that would dramatically reshape state appellate courts, likely reversing the Democrats’ recent judicial gains in big cities and seizing control from Austin-area appeals court judges in major lawsuits on school finance, voting rights and redistricting.

Republicans on the Senate Jurisprudence Committee approved a bill that would consolidate the 14 court of appeals districts into seven, over strong objections from Democrats, civil rights advocates and jurists.

Sen. Joan Huffman, R-Houston, described the restructuring as a much-needed way to slim down the number of courts while evenly spreading out the currently lopsided workload.

“The current system creates inefficiency and confusion for litigants,” Huffman said of her legislation, Senate Bill 11. “It is so important to the jurisprudence and judicial economy of our state that we address these issues.”

But justices from across Texas strongly criticized the proposal in the bill’s first public hearing Thursday. They warned the change would knock Black and Hispanic justices off the appellate bench and refocus attention on nettlesome administrative matters, just as the courts are facing a deluge of cases delayed by the pandemic.

“It seems to me like we’re taking a sledgehammer when a tack hammer could fix or resolve this,” said Chief Justice Robert Burns of the 5th District Court of Appeals in Dallas.

The overhaul would cut the number of appeals court districts in half starting in 2023 and rearrange them in ways critics say would disenfranchise voters from minority communities and rural areas.

The district that includes Dallas County would expand from six counties to 21 — and reach as far south as Austin and west to Llano and San Saba. Tarrant County would be folded into a far-flung district with corners in Waco, Wichita Falls and Texarkana.

Judicial candidates running in the larger districts would need more votes to win, and likely bigger campaign coffers to match, several jurists testified.

Voting rights concerns

Sen. Juan “Chuy” Hinojosa, D-McAllen, suggested the way the districts are redrawn could violate the federal Voting Rights Act, a criticism echoed by several others.

“The proposed maps are going to significantly dilute the voting strength of communities of color,” said 5th District Court of Appeals Justice Erin Nowell. Statewide, Nowell said she is the only African American out of 80 justices on the courts of appeals.

“It would make it such that, and virtually guarantee, that the number of justices of color that are on the bench right now would lose in the next election,” she said.

The suggested overhaul comes after major political swings.

In 2018, Texas Democrats flipped state appeals courts based in Dallas, Houston and Austin, which gave them control of seven of the state’s 14 appeals courts.

The victory in the Dallas area’s 5th Court of Appeals was ignited by eight Democrats running on what was called the “slate of eight.” A Democrat had not been elected to the court since 1992. But in 2018, Democrats seized the majority on the court, including the post of chief justice.

“It seems ironic that these changes are coming all of a sudden, now that Democrats are beginning to win these contests for the appeals court,” said Jeff Dalton, the political strategist for the 5th Court’s victorious Democratic slate. “We have probably flipped more courts of appeals benches than any other kind of race in the last couple of election cycles.”

Sen. Nathan Johnson, D-Dallas, prodded Huffman on whether politics played into the redesign. He said he’s heard predictions that the rewrite could result in five Republican-dominated appellate courts and two Democratic ones.

Huffman said she didn’t know what the partisan breakdown would be if an election were held today. The districts were redrawn with the objective to address uneven caseloads, she said.

“We looked at trying to make it accessible to all citizens,” she said.

One of the few to testify Thursday in support of the overhaul was Texans for Lawsuit Reform, a group trying to curb civil lawsuits against business. General counsel Lee Parsley said the change is needed to decrease the number of appeals courts and eliminate overlapping jurisdictions.

“It is all a creation that happened over 100 years of building the court system in that moment to fix that particular problem,” he said. “We favor a change and this is as good a time as any.”

First major restructuring since early 1980s

If adopted, it would mark the first major restructuring of the state’s appeals courts since the early 1980s, Huffman said. Lawyers and jurists testified they had no opportunity for input before the hearing Thursday.

The bill passed out of committee on a 3-2 party line vote, as did another bill that would significantly change the appellate process.

Senate Bill 1529 could neutralize the influence of liberal Austin voters on courts that traditionally have handled big lawsuits against the state, which are typically filed in district court in Travis County. It would yank all appeals of complex suits involving state agencies and leaders from the currently all-Democratic 3rd Court of Appeals based in Austin and give them to a newly created appellate court, the “Texas Court of Appeals,” with its justices elected statewide. At the moment, all statewide elected justices — both civil and criminal — are Republicans.

In a statement of her intent filed with an analysis of her initial draft, Huffman cited a need for experienced judges “to apply highly specialized precedent in complex areas of law.”

Currently, the major state lawsuits are frequently transferred among the 14 intermediate appellate courts to equalize dockets, Huffman noted. That has a downside, she argued.

“These courts have varying levels of experience with the complex legal issues involved in cases of statewide significance, resulting in inconsistent results for litigants,” she said. “This not only brings volatility to the state’s jurisprudence, it does so at taxpayer expense.”

The cases that would be affected could include some of the most high-profile legal battles in Texas, such as decades of challenges to how the Legislature funds public schools.

Michael Gomez, an assistant county attorney in El Paso County, testified that the current structure works just fine.

“Creating a new appellate court would just create a non-necessary cost to taxpayers to enable state agencies to have a home-field advantage in a friendly forum,” he said.

Staff writer Gromer Jeffers Jr. contributed reporting from Dallas.