Thursday, October 25, 2007

Judges hear arguments in DPS security tape case - Texas Observer wants to see if donor Leininger met with Legislators

DPS lawyer says release of tapes would set bad precedent, compromise security.
By Mark Lisheron - Austin AMERICAN-STATESMAN STAFF - Thursday, October 25, 2007

An attorney for the Department of Public Safety told a Court of Appeals panel Wednesday that publicly releasing security camera tapes from public buildings was little different from giving someone the access codes to a building's security center.

DPS has for more than two years been arguing to keep certain security tapes secret, after a public information request by the Texas Observer, a small nonprofit investigative newspaper.

The case made its way to the 3rd Court of Appeals after the Texas attorney general's office and a state district judge ruled that the public's right to the tapes in this case outweighed security concerns.

DPS has spent more than $165,000 on private attorneys to fight the release of two tapes recorded by two Capitol security cameras on May 23, 2005, in the back hallway of the House of Representatives chamber.

The Observer asked for the tapes to see whether prominent campaign donor and school voucher advocate James Leininger met with legislators on a day when a voucher pilot program was to have been voted on.

The case has drawn the ire of the chairman of the state Senate's Transportation and Homeland Security Committee, Sen. John Carona, R-Dallas, who has promised an investigation into why the department has not surrendered the tapes.

Carona has called the Public Safety department's action politically motivated and a waste of taxpayer money.

Raymond White, the attorney representing DPS, said Wednesday that his client has persisted despite the legal setbacks because of the precedent that would be set if the agency were forced to release the tapes.

"The release of this information would give people who would want to defeat the (security) system an incredible amount of information," White told a panel made up of justices Diane Henson, David Puryear and Alan Waldrop. "These videotapes are a guide to the core of how the security system works."

As he has from the start of the case, Jeremy Wright, attorney for the Texas Observer, told the appeals court judges that the tapes provide no such compromising security information. He asked the panel to consider the law, which offers a narrow interpretation of what kinds of information can be kept from public view for security reasons.

After the hearing, Wright said he was confident that the three judges understood that the Observer's public information request was narrow, specific and legal.

"I think they were very focused on the balance between open government and security, and I hope they will decide in our favor," he said.

Appeals court cases typically take weeks, and it can take months for judges to announce a ruling.
Read more in The Austin AMERICAN-STATESMAN

Wednesday, October 24, 2007

NEW COMPLAINT FILED AGAINST JUSTICE HECHT - Soliciting Contributions for Damage Control Violates Judicial Canons

By Alex Winslow - Texas Watch - Aug. 14, 2007
NOTE: To see a copy of the complaint filed August 14, 2007 against Justice Nathan Hecht, as well as all supporting material.

AUSTIN – Texas Watch filed a new complaint with the State Commission on Judicial Conduct (SCJC) against Texas Supreme Court Justice Nathan Hecht today, alleging an additional and separate violation of the canons of judicial ethics. This complaint alleges that Hecht’s solicitation of funds from attorneys and other parties with business before the Texas Supreme Court in order to take legal action to clear his record is a violation of the Code of Judicial Conduct.

Through an open records request, Texas Watch obtained a copy of a previous admonishment issued by the SCJC which serves as a precedent for the complaint filed today. In a 1987 ruling, the Commission admonished then-Justice William Kilgarlin for circumstances similar to those surrounding Hecht today.

Justice Kilgarlin was admonished for soliciting funds from parties practicing before the Court to pay for expenses arising out of a defamation suit meant to clear his name. Hecht’s situation is similar in that he solicited funds from attorneys, lobbyists, and litigants with business before the Court in order to cover legal costs related to his appeal of a 2006 admonishment issued by the SCJC. In a February 3, 2007 solicitation letter, Justice Hecht asked for the funds to “clear my record.”

Alex Winslow, Texas Watch’s Executive Director, wrote to SCJC Executive Director Seana Willing that “the Kilgarlin admonishment appears to be a precedent that can be directly applied to Justice Hecht’s actions.” In both cases, the justices were soliciting contributions from parties with business pending before the Court in an attempt to remove a blot on their reputations.

This new complaint comes after Texas Watch filed three separate complaints with the SCJC, the Texas Ethics Commission, and Travis County District Attorney last month. Those complaints center around a so-called “discount” Hecht received on his legal fees from Jackson Walker, the law firm which represented him to during his appeal of a 2006 SCJC admonishment. In letters to Texas Watch, all of the pertinent authorities have confirmed that they are investigating those complaints.

See Texas Watch

WHEN NO ONE IS ACCOUNTABLE, NO ONE IS SAFE - Loss of Accountability Threatens the Safety of Texas Families, Communities

By Alex Winslow - Texas Watch - October 18, 2007
Texas Watch Executive Director Alex Winslow speaks at a press conference about the importance of legal accountability for corporate CEOs like Lord John Browne, the head of BP at the time of the tragic explosion at Texas City that killed 15 workers and injured hundreds more. Texas Watch Executive Director Alex Winslow delivered the following statement about the threats posed to Texas workers, families, and communities when corporate CEOs are allowed to avoid accountability for their actions:

"Today the Texas Supreme Court will hear arguments in a matter that goes to the core of accountability. The question before the Court today is whether Lord John Browne – the CEO of British Petroleum at the time of the tragic explosion at Texas City that killed 15 Texas workers and injured hundreds more – will have to answer for the decisions he made that led to the explosion.

"But, this is about much more than one man having to answer a few questions. This is about CEO accountability and the threat posed to our communities when corporate CEOs are allowed to make decisions that affect Texas families without having to answer for those decisions.

"The decisions made by corporate CEOs in board rooms all around the world threaten the safety of communities right here in Texas. Children on their way to school, families who breathe our air and drink our water, and small business owners who serve the plant and its workers all face a greater danger when CEOs are allowed to avoid accountability for the decisions they make.

"In Texas, the value of personal responsibility is sacrosanct. Now, I know that Lord Browne isn’t from around these parts, but he should still have to answer for his actions. When I was growing up my mother – like parents everywhere – worked hard to instill in me that if I hurt someone – whether on purpose or on accident – that I was going to have to face the consequences. The same principal applies to Lord Browne and his band of corporate CEOs.

"When CEOs are allowed to avoid accountability, they will invariably cut corners. When they skimp on workplace safety, then there is a higher likelihood of a catastrophic event that spews pollution into our air, threatens the safety of children in nearby schools, and puts families at risk of harm.
"In Texas, no one should be above having to answer for their actions, no one should be allowed to escape accountability, and no one should be able to walk away from dangers they pose without consequence.

"BP consciously decided to put profits ahead of people and Lord Browne was the ultimate decision maker. Along with his cadre of 175 Corporate CEOs who signed on to support him, he is asking the Texas Supreme Court to protect him. Well, where were they when Texas workers and communities needed protecting?

"The corporate CEOs and their special interest lobbyists have ushered in a new era dominated by a corporate immunity movement. No longer are we talking about parity and balance in the legal system. We are talking about a broad expansion of immunity for wrongdoers.

"Today’s hearing typifies their desire to escape responsibility for their actions.

"Sadly the Texas Supreme Court has a long track record of aiding and abetting insurance companies, polluters, and other wrongdoers who are hell-bent on pushing a corporate immunity agenda.

"If the Texas Supreme Court continues to give CEOs like Lord Browne a pass on accountability, then they are sending a message that immunizing foreign corporate wrongdoers is more important than keeping Texas communities safe from environmental, industrial, and workplace disasters."

See Texas Watch

TEXAS SUPREME COURT DEMONSTRATES PRO-DEFENDANT BIAS - 10th Annual Review Confirms Long-Term Trend of Decisions Against Texas Families

By Alex Winslow - Texas Watch - March 29, 2007

AUSTIN – Court Watch, a project of the Texas Watch Foundation, released its tenth annual list of the most anti-consumer decisions handed down by the Texas Supreme Court during the Court’s 2005-2006 term. Called the “Terrible 10,” this list reflects the Court’s pro-defendant bias against Texas families, homeowners, seniors, and small businesses.

This is Court Watch’s tenth annual review of the Texas Supreme Court. Over that time, Court Watch has highlighted the Court’s pro-defendant bias by conducting a statistical examination of the Court, as well as discussing legal trends. Over the ten year history of the Court Watch project, the Court has ruled in favor of defendants an average of 70% of the time.

“For ten years, Court Watch has been monitoring the Texas Supreme Court’s decision-making. We have highlighted various trends and spotlighted specific cases. One thing remains consistent: the Texas Supreme Court is ardently pro-defendant and Texas families are paying the price,” said Alex Winslow, Executive Director of the Texas Watch Foundation.

Lawmakers are considering legislation to consolidate power in the hands of the Texas Supreme Court. Winslow urged lawmakers to maintain judicial accountability and impartiality.
“Local judges in communities all across our state should not have to fear that the pro-defendant Texas Supreme Court is going to intervene in a local matter,” said Winslow. “Local voters elect the judges that they think reflect their values. We should maintain our current system of judicial accountability.”
Included on this year’s Terrible 10 list are cases that allow employers to fire workers for reporting criminal activity to the police, shield nursing home operators from accountability when senior citizens are abused by other patients, force individuals into binding arbitration, allow predatory lenders to skirt the law, and dramatically alter the way that jurors are screened. The report also highlights several legal trends that emerged during the 2005-2006 term.

“The Texas Supreme Court touches every facet of our lives,” said Winslow. “It is disturbing that this Court continues to bend and contort their decisions to favor wrongdoers over individual Texans.”

See Texas Watch

Sunday, October 21, 2007

Railroad Commission criticized for changing report to absolve Atmos Energy in death of Wylie couple

WState official says report's shift away from coupling as factor is based on evidence, not influence
By ERIC TORBENSON - The Dallas Morning News - Oct. 21, 2007
Editor's note: WFAA-TV reporter Brett Shipp and producer Mark Smith are examining possible hazards posed by outdated natural gas couplings serving 100,000 North Texas homes. Sunday night, Channel 8 explores why regulators dropped a proposal to require replacement of the couplings. This article is based largely on WFAA's research.
Many Texans may not realize that the state's Railroad Commission is charged with regulating the safety of natural gas and oil pipelines.

Critics say the commission often acts as though it doesn't realize it, either.

Consumer advocates have questioned the commission's effectiveness and its ties to the industry it oversees in the wake of natural gas explosions that have killed at least nine North Texas residents and injured more in the last decade.

Now, documents produced as part of a lawsuit in an explosion last October that killed an elderly Wylie couple show that a top commission staffer changed an investigator's report, which had the effect of steering blame away from an underground pipe coupling that critics say should never have been used in Texas' notoriously shifting soil

The commission has considered ordering the couplings' replacement, but chose to study them first. They remain in use under 100,000 North Texas homes.

The day after Benny and Martha Cryer died in the early-morning explosion of their Wylie home on Oct. 16, 2006, Railroad Commission safety officer Mary McDaniel discussed a likely cause in an e-mail: "Soil compaction from the rains is our current suspicion" for pulling the service pipe out of the outmoded coupling and causing the leak, she wrote.

The investigator on the case, Alfred Garcia, mentioned a similar explanation in a draft report, along with the possibility of construction-related damage.

But five months after the Cryers' home blew up, the Railroad Commission's final report pointed away from problems with the coupling.

Ms. McDaniel has testified that she removed Mr. Garcia's opinions about shifting soil. Instead, the report came to no conclusion on a probable cause but said the investigation focused on whether the gas pipe had been damaged by a contractor digging behind the Cryers' home a year earlier.

The report cleared Dallas-based Atmos Energy, which took over natural gas service in North Texas from TXU in 2004. That result led Atmos to argue that it didn't need to do forensic testing on the coupling from the ruins of the Cryers' home.

In response to questions from The Dallas Morning News, Ms. McDaniel said the final report was based on the evidence and was subject to no outside influence.

Mr. Garcia also had recommended that the Railroad Commission immediately ask all Texas gas companies to develop an "expedited" plan to get the old couplings out of the ground. That would have forced utilities to spend potentially tens of millions of dollars to replace the equipment.

Ms. McDaniel removed that request from the final report. Later, the commission simply asked natural gas companies to do a survey of couplings.

Atmos has denied liability for the accident in a lawsuit filed by the Cryers' survivors.

Officials say the company is committed to safety in a system so big that at any one time, there are about 6,000 ongoing leaks, most of them minor.

"We welcome any discussion about safety and maintaining our natural gas system to the highest standards of safety," a company statement said. "Third-party damage – someone digging into natural gas lines – is a significant and costly cause of leaks."

Atmos also says the 2.2 million miles of underground gas pipeline is the country's safest energy delivery system.

Railroad Commission Chairman Michael Williams defended the work of Ms. McDaniel, a safety official and commission employee since 1983.

"It is one of the best safety divisions if not the best safety division in the country. It's been noted so by any number of federal entities," Mr. Williams said. "Mary is one of the leading pipeline safety people in the country and has been regarded as such."

Unlike other agencies

But critics say other states have been faster to take corrective action. They point to a case in Ramsey, Minn., where an office building blew up and killed three people in December 2004.

Minnesota natural gas regulators forced the gas company involved to immediately dig up and investigate all its older couplings, according to the state's report on that accident.

Unlike their counterparts in Minnesota, or at the Texas Public Utilities Commission, Texas railroad commissioners are elected by statewide vote. That means commissioners can take campaign money from the companies they regulate.

"The energy industry is investing, in some cases, a half-million dollars [in campaign contributions] in the careers of these commissioners," said Andrew Wheat of the Austin-based advocacy group Texans for Public Justice. "I don't know about you, but if someone invests a half-million dollars in my career, it's going to be hard to act independently from them."

According to Texas Ethics Commission records, since 2000, Atmos' political action committees have donated $20,000 to Commissioner Victor Carrillo and $19,802 to Mr. Williams. Commissioner Elizabeth Jones has received $2,000.

Couplings' hazards

Benny and Martha Cryer moved into their new wood-frame house at 310 S. Third St. in Wylie in 1954, raising two children there, according to the family's attorney.

Mr. Cryer had attended Wylie High School, was a military veteran and worked at Kraft Foods.

In 1979, Lone Star Gas installed a new natural gas supply system at the Cryers' home. The pipe from the main gas line in the alley was attached to the Cryers' meter with something called a "pre-bent riser," which linked the meter to the pipe with a compression coupling that has a rubber seal.

A year later, the coupling's manufacturer advised Lone Star Gas, later acquired by what is now TXU, that the couplings didn't meet federal standards because the connection wasn't as strong as the pipe itself.

In 1986, the federal Office of Pipeline Safety warned utilities that compression couplings can fail.

Don Deaver of Houston, who worked for 33 years as a leak investigator for Exxon, said the rubber seals in older compression couplings weaken over time and grip the pipe with less strength. That has been known throughout the industry since the 1980s, he said.

Gas utility employees have testified in the lawsuit that the compression couplings tend to leak after heavy rainfall. In some instances, soil shift would partially pull the gas service pipe from older compression couplings, former TXU employee Byron Dunlap said. TXU sold the gas system to Atmos in 2004.

In addition, some studies indicate that damp earth can leech the additive that smells like rotten eggs out of natural gas, allowing the gas to collect in a home unnoticed until an electric charge or pilot light ignites a blast.

In systems constructed today, underground gas pipes are fused to the meter with a non-corroding coupling.

But the older compression coupling is buried behind more than 100,000 homes in North Texas, most of them built with gas service before 1980.

Soil not named in report

Early last Oct. 16, pelting rain was soaking and expanding the North Texas soil that had baked and cracked during the long, hot summer.

Just after 3 a.m., the Cryers' house exploded. Mr. Cryer was blown from his bed and landed next to an adjacent house. He died at the scene. Mrs. Cryer, who had turned 77 that Friday, was found 30 feet away at the rear of the lot. She died later at Parkland Memorial Hospital in Dallas.

Afterward, Atmos found 24 other leaks in the neighborhood and replaced 21 pre-bent risers like the one at the Cryer home. A year earlier, the company had conducted a leak survey in Wylie and found no leaks in the neighborhood.

Assigned to investigate for the Texas Railroad Commission, Mr. Garcia noted in his preliminary report that nearly 4 inches of rain in 24 hours had swelled the earth behind the Cryer home. In discussing the most likely cause of the accident, he wrote that the shifting soil may have pulled an underground pipe out of its coupling, pooling deadly gas under the Cryer home.

Mr. Garcia drafted a letter to require all Texas natural gas providers to replace the underground couplings.

Presented with the same evidence, however, Atmos' own report blamed a third party for damaging the pipe. A year earlier, a contractor had installed a new water main in the alley behind the Cryers' home.

However, Atmos' safety official has testified that the gas leak appeared to be more recent. Commission staffers' e-mails also indicate that the water main was far enough away from the Cryers' gas pipe as to reduce the odds that contractor error was the cause.

Initially, Ms. McDaniel, Mr. Garcia's boss, seemed to agree with his thinking about heavy rains and soil shifting breaking the coupling.

But as the final report came together, she met with him and said his reasoning was flawed, according to her testimony in the Cryer lawsuit.

The probable-cause section of the final report said the investigation focused on third-party work and said a number of factors could have contributed to the pipe coming out of the underground coupling. Descriptions of the drought conditions before the rain – which could have explained why the soil might have shifted – were removed. So was the mention of "natural ground movement."

Before the final report came out, Ms. McDaniel and Mr. Garcia had talked about whether they should focus more on the coupling's weakness, rather than on what might have caused it to fail. In the end, they chose to omit mention of the coupling's frailty. They said they wanted to focus on that question separately, conducting a survey across the entire state, and with all gas companies.

The final report held Atmos blameless. Ms. McDaniel labeled the report as "favorable" to the utility and thanked the company for its cooperation.

She said in testimony that she was under intense pressure to release the report and agreed that her meeting with Mr. Williams, the commission chairman, before the release of the final report was unusual.

"I'm just a little stressed, this has been a major headache for me," Ms. McDaniel wrote to Mr. Garcia in an e-mail March 27.

Atmos reaction

In an interview and in response to written questions from The Dallas Morning News, Ms. McDaniel said her stress was related to her coming deposition by the Cryer family lawyers, not about any pressure she was feeling over the contents of the final report.

She stood by her decision to de-emphasize soil shifting in the report because Mr. Garcia had focused on temperature-related issues with the coupling. Texas' soil doesn't vary substantially in temperature, Ms. McDaniel said.

In his testimony, Mr. Garcia said that he agreed with Ms. McDaniel's changes and that together they ruled out natural soil shifting because the Cryers' coupling had been in place for so long without any problems. He also testified that there were signs of recent construction in the alley behind the house.

Mr. Garcia couldn't be reached for comment for this article.

At no time did any of the commissioners or Atmos influence the outcome of the final Wylie report, Ms. McDaniel said. She met with Mr. Williams before the report's release only to inform him of the conclusion they had reached, she said.

With the final report on the explosion pointing away from the older underground equipment and toward the work of other parties, Atmos declined the state's request to conduct forensic testing on the failed equipment at the Cryer home.

In a letter to the railroad commission, Atmos argued that since the state's report didn't point toward the old coupling as the problem – and neither did its own internal investigation – no testing was needed.

After the state insisted in a letter in September and the Cryer family lawyers asked for testing, Atmos did test the Cryer home's coupling in September.

Atmos declined to answer questions from The News about the Cryer suit because the litigation is pending.

Atmos lawyers note in the depositions that the company was never in violation of any state regulation concerning its system. Officials say that their underground system is safe and that they will do anything they can to assure customers of the integrity of the pipes and couplings under their homes.

However, in marketing materials, the company notes that it spent $110 for operations and maintenance for each of its customers in 2005, compared with a peer utility average of $229 a year. The company notes that its costs were substantially lower than those of other natural gas utilities and that it has far fewer employees per customer than its peer group.

Survey, not directive

Today, Atmos makes a policy of replacing the pre-bent risers whenever it shuts off the gas to do repair work at a customer's home.

But there is no directive from the Railroad Commission for a statewide replacement program.

Ms. McDaniel initially seemed amenable to Mr. Garcia's recommendation for such a program.

"We need to get together a list of incidents where this has happened so we can have Atmos change their procedures to prevent this," Ms. McDaniel wrote in a March 29 e-mail. April drafts of the directive ask utilities to phase out the older equipment.

But the "directive" morphed into the "survey" of utilities, which was sent June 8 to ask if they've had any trouble with the pre-bent risers and the compression couplings.

Ms. McDaniel has testified that she wanted to handle the issue across the state rather than with just with one company. She said in an interview that while the commission has taken action against individual utilities before, it didn't make sense in this case to single out Atmos for the use of older underground couplings, and that the survey would give the commission a better idea of what it was facing.

Mr. Garcia also testified that different soil types throughout the state made it an issue requiring further study.

As part of the survey, the commission issued an interim directive this month to force utilities to examine underground compression couplings and replace them if they find a leak.

The older compression couplings implicated in home explosions were installed on homes generally built before 1980. Atmos said it will send a crew to the home to evaluate the equipment and replace the older coupling if customers ask for it.

Atmos Energy asks that homeowners who are concerned about their gas system call 1-866-286-6700 or the customer support number at 1-800-460-3030. Customers can also e-mail

March 13, 1979: Lone Star Gas installs a natural gas system at the Wylie home of Benny and Martha Cryer using a compression coupling to link their meter with the service line.

July 2, 1980: The coupling's manufacturer advises Lone Star Gas that the couplings don't meet federal standards because the connection is not as strong as the pipe itself.

1986: After a natural gas accident involving a compression coupling in Pennsylvania, the federal Office of Pipeline Safety warns utilities that compression couplings can fail.

Oct. 10, 1998: Three people are injured in a house explosion in Arlington.

Jan. 14, 2000: Two people die in a Garland natural gas explosion that's blamed on a faulty underground pipe.

Dec. 13, 2000: One person is killed and another injured in a house explosion in North Richland Hills.

Nov. 13, 2001: Two people die in a gas explosion in Richardson.

December 2004: Three people are killed in a Ramsey, Minn., gas explosion blamed on the compression coupling. Minnesota requires the natural gas company to investigate all similar couplings.

Oct. 16, 2006: The Cryers are killed when a natural gas explosion destroys their house.

Oct. 17, 2006: An e-mail from Mary McDaniel, top safety officer for the Texas Railroad Commission, cites suspicions that heavy rains following extreme drought shifted the soil and pulled the pipe from the compression coupling.

Dec. 8, 2006: Investigator Alfred Garcia's preliminary report on the Cryer case notes soil shift as a possible factor. He proposes that utilities immediately plan to phase out the older equipment.

Jan. 25, 2007: A home explodes in Missouri City, Texas, injuring one. An initial report blames a loose compression coupling after heavy rain.

March: Ms. McDaniel meets with Commission Chairman Michael Williams, an occurrence she testifies later was "unusual." She talks with Mr. Garcia about changing the probable-cause section of the report but testifies later that the meeting with Mr. Williams didn't have anything to do with that.

March 29: The commission's final report reaches no conclusion about the cause of the explosion. Mr. Garcia's recommendation that utilities replace all compression couplings is not included.

April: A draft letter to utilities about compression couplings suggests they be removed.

May 29, 2007: A home in Cleburne explodes, killing two people. Investigators suspect a loose compression coupling allowed gas to seep into the home's attic.

June 8: Instead of ordering or even recommending the removal of all the couplings, the Railroad Commission asks utilities to collect data and report their experience with the couplings. The survey is expected to be completed by early next year.

Oct. 9: The Railroad Commission approves an interim directive that utilities replace older couplings if they are found to be leaking.

SOURCE: Dallas Morning News research and archives; legal documents
Read entire story, see videos and examine archives at DMN

Related Publications

The Arlington Texan, a portal to news and coverage of issues and events of and about Arlington, Texas. DFW Regional Concerned Citizens is a sister-site of Grassroots News You Can Use. Visitors can subscribe to issues-specific and county specific action alerts using a simple form on the site. About Air and Water focuses on DFW Regional air quality and water/gas drilling issues. We welcome your feedback.