SENATE COMMITTEE ON NOMINATIONS 
                                Tuesday, May 4, 2004 
                                     10:00 a.m. 
                           Capitol Extension, Room E1.016 
         Pursuant to a notice posted in accordance with Senate Rule  
         11.18, a public hearing of the Senate Committee on Nominations  
         was held on Tuesday, May 4, 2004, in the Capitol Extension, Room  
         E1.016, at Austin, Texas. 
         MEMBERS PRESENT:                        MEMBERS ABSENT: 
         Senator Jon Lindsay                     None 
         Senator Bob Deuell 
         Senator Gonzalo Barrientos 
         Senator Kevin Eltife 
         Senator Juan Hinojosa 
         Senator Mike Jackson 
         Senator Kel Seliger 
         The Chair called the meeting to order at 10:03 a.m.  There being  
         a quorum present, the following business was transacted:   
         The following members arrived after the roll was called:   
         Senator Jackson, Senator Barrientos, and Senator Hinojosa. 
         The Chair laid out the committee rules for the 78th 4th Called  
         Legislative Session.  Senator Deuell moved to adopt the rules;  
         there being no objection the rules were adopted.  
         The Chair recognized Senator Whitmire who introduced Education  
         Commissioner Shirley Neeley. 
         The Chair recognized the two new Senators to the committee,  
         Senator Seliger and Senator Eltife. 
         The Chair introduced The Honorable Scott Andrew Brister, nominee  
         to the Supreme Court of Texas.  Justice Brister made an opening  
         statement and introduced his staff. 
         The Chair recognized Senator Barrientos for questions.  Senator  
         Barrientos asked Brister questions regarding judicial election  
         reform, and if he supported separation of Church and State.  He  
         also asked if Brister favored judicial elections or appointments  
         for life.  Brister did not give answers that were satisfactory  
         to Senator Barrientos.   
         The Chair recognized Senator Hinojosa who asked Brister about  
         being sued for having the Ten Commandments on the walls of his  
         courtroom and about the separation of Church and State.  Brister  
         said the Church and the State are separate institutions with  
         separate jobs to the extent that it is required for them to be  
         kept separate by the constitution.  Senator Hinojosa asked  
         several more questions.  Brister responded that not every  
         question can be answered with "yes, always," or "no, never."  
         The Chair again recognized Senator Barrientos who proceeded with  
         more questions regarding school vouchers.  Brister said that it  
         was not his call.  Senator Barrientos asked him if it was  
         accurate that the court favors doctors and hospitals when its  
         duty is to represent all citizens.   
         The Chair asked for other questions, there were none, and he  
         thanked Justice Brister for appearing before the committee. 
         There being no other questions, a motion was passed at 10:29  
         a.m. by Senator Jackson to send Scott Brister to the full Senate  
         and Senator Deuell seconded the motion.  Brister was confirmed  
         by the committee with 5 ayes and 2 nayes. 
         The Chair called Shirley Neeley to come before the Committee.   
         She gave a summary of her accomplishments in education.   
         The Chair thanked Commissioner Neeley and asked her to explain  
         the controversial report on the progression of the Galena Park  
         students to higher education.  She explained that she likes to  
         use a broader definition for "higher education" than only  
         four-year colleges and universities. 
         The Chair asked for questions and recognized Senator Barrientos.   
         Senator Barrientos asked her to explain her method of improving  
         the student performance at Galena Park School District.  She  
         said that she had to start from the beginning, but that she did  
         raise the record of Galena Park School District from acceptable  
         to exemplary.  She said she owes much of the progress to the  
         incredible team she worked with and the school board's  
         willingness to make decisions that were not always popular.   
         Senator Barrientos asked her about the importance of adequate  
         compensation for teachers and the education of children from  
         low-income families.  She thought competitive salaries are  
         important, but the most important thing is that teachers know  
         they are valued.  Neeley also said that in Texas we have a new  
         accountability system, a new test, new demographics, and the bar  
         is continually raised, so teachers do need some incentive to  
         continue with the job they are doing.   
         The Chair recognized Senator Hinojosa who asked if the education  
         system was "top-heavy."  Neeley answered that the Texas  
         Education Agency has an administrative cost-ratio.  The priority  
         must be in the classroom.  Hinojosa commented that education is  
         the best equalizer we have in our society and so we need to run  
         education as a business. 
         The Chair recognized Senator Deuell.  Senator Deuell asked  
         Neeley about the firing of principals and teachers, teacher  
         incentives, and what to do with an unresponsive superintendent.   
         Neeley responded that there is no excuse for low-performing  
         schools.  Senator  Deuell asked if vouchers would have worked at  
         Galena Park.  She believes the superintendent should be able to  
         offer parents who are unhappy with their school districts a  
         choice.  He asked Neeley about the administrative cost-ratio,  
         and she clarifies that the administrator to student ratio is a  
         set number of administrators per student with an attached total  
         cost that is not affected by the number of students.  Senator  
         Deuell asked Neeley what we need as far as benefits for  
         teachers.  Neeley said that teachers want support from their  
         administrators.  Senator Deuell asked if there was a shortage of  
         teachers in Texas.  Neeley said there were over 600,000  
         certified teachers in Texas and only half of them are choosing  
         to teach in our pubic schools.  Senator Deuell asked her about  
         teacher certification.  Neeley said that non-certified teachers  
         are not preferred, but it should be an option for  
         superintendents.  She added that lots of training and mentoring  
         are essential for non-certified teachers to be successful.   
         Senator Deuell asked Neeley about the budget of TEA.  Neeley  
         answered that it is $70 million.  That is down $30 million from  
         last year.  Senator Deuell asked Neeley about class size.   
         Neeley is supporting a 22 to 1 district average giving the  
         superintendents needed room for some flexibility as opposed to  
         the strict 22 to 1 ratio per classroom.  Senator Deuell thanked  
         her and the Chairman.  The Chair thanked Senator Deuell for his  
         The Chair recognized Senator Jackson.  Senator Jackson asked for  
         more information on the formula of the administrator to student  
         ratio.  Senator Jackson asked about unfunded education mandates  
         from the state and how the legislators can avoid them.  Neeley  
         said that TEA needs to provide the cost of every mandate to the  
         legislature before it is passed because her job is to carry out  
         the mandates of the legislature and it is difficult when the  
         funds are unavailable.  Senator Jackson asked what she thought  
         about having gambling as a revenue for public schools.  She said  
         that it was up to the legislature to determine the sources of  
         revenue.  Senator Jackson asked about schools starting earlier  
         and holidays getting longer.  She believes it should be a local  
         decision.  She discussed the dual credit and the importance of  
         syncing the school district fall and spring semesters with the  
         local colleges' semesters. 
         The Chair again recognized Senator Barrientos.  He asked about  
         home-schooling being used as an excuse for dropouts.  Neeley  
         said that it is the school district's job to make sure they  
         track the students and know where they are and why they are not  
         attending or leaving.  If the school district reaches out to  
         parents who home-school, then it develops a positive  
         relationship.  Senator Barrientos clarified that there is a  
         problem with kids dropping out of school and using  
         home-schooling as an excuse.  Senator Barrientos mentioned a  
         bill about a teacher mentor program and cautioned about duties  
         of the mentors and principal favoritism being an effect of the  
         bill if it passes.  Senator Barrientos asked Neeley if she was  
         for or against the 22 to 1 student to teacher ratio.  She  
         answered that she is for a 22 to 1 student to teacher ratio as a  
         district average.    
         There being no other questions, a motion was passed at 11:42  
         a.m. by Senator Hinojosa to send Shirley Neeley to the full  
         Senate and Senator Deuell seconded the motion.  Commissioner  
         Neeley was confirmed by the committee with 7 ayes and 0 nayes. 
         The Chair called the nominees to the Public Utility Commission  
         of Texas and asked Senator Jackson to introduce Barry Thomas  
         Smitherman.  The Chair asked F. Paul Hudson to introduce himself  
         because Senator Wentworth could not be present.  The Chair asked  
         Hudson and Smitherman to each make an opening statement.  The  
         Chair asked for a brief overview of cost procedures that are  
         ahead for the PUC.  The Chair asked Smitherman to add and  
         Smitherman said that the financial situation is not a case of  
         The Chair asked for questions and recognized Senator Barrientos.   
         Senator Barrientos asked Hudson questions regarding the best  
         avenue for customer complaints.  He also asked about the  
         negative situation in California after deregulation and how to  
         prevent that from happening in Texas and Hudson answered.   
         Senator Barrientos questioned Hudson regarding ERCOT and the  
         Open Meetings Act.  Senator Barrientos asked Smitherman the same  
         question and Smitherman recommended that it follow the Open  
         Meetings Act because it currently works in the spirit of the  
         Open Meetings Act.  Senator Barrientos asked if the PUC intended  
         to keep up with the telecommunications industry's movement to  
         wireless networks and Hudson answered that they did.  Senator  
         Barrientos asked if they had any plans for spamming regulations  
         for unwanted faxes and Hudson replied that the Attorney  
         General's office is working on that issue. 
         There being no other questions, a motion was passed at 12:12  
         p.m. by Senator Barrientos to send F. Paul Hudson and Barry  
         Thomas Smitherman to the full Senate and Senator Seliger  
         seconded the motion.  Both nominees to the Public Utility  
         commission were confirmed by the committee with 7 ayes and 0  
         The Chair called Larry Soward, nominee to the Texas Commission  
         on Environmental Quality (TCEQ), to appear before the Committee  
         and recognized Senator Barrientos to introduce him.  The Chair  
         asked Soward if he would like to make an opening statement.   
         Soward stated that the TCEQ is and will be at the forefront of  
         every issue facing Texas to attract citizens to our state and  
         keep our economy strong by protecting our environment, natural  
         resources, and public health.  Due to its tremendous  
         responsibility Soward recommends improvement of the TCEQ.   
         The Chair recognized Senator Barrientos for questions.  Senator  
         Barrientos points out that the commission gets accused of being  
         too friendly with the industries and not enforcing  
         responsibility for their actions.  Soward said that when public  
         health and our environment are jeopardized by the actions of  
         industries, that their actions are inexcusable and  
         unexplainable.  Soward said that the TCEQ's job is to protect  
         the health and environment of the citizens of our state.   
         Senator Barrientos asked him about solid waste landfills and if  
         they considered the public's comments regarding their locations.  
         The Chair recognized Senator Deuell for questions.  Senator  
         Deuell mentioned small towns and the fines they have to pay and  
         then asked for Soward's comments on lakes and water supply.   
         Over 75% of enforcement problems center around small towns and  
         businesses.  Senator Deuell asked about poor advice given by  
         engineering firms that causes companies to be reprimanded by the  
         TCEQ.  Soward says the agency can provide the names of  
         engineering firms that have routinely worked with the agency  
         successfully, but does not want it to be a business referral  
         service.  Deuell asks about the "dead" area in the Gulf of  
         Mexico.  Soward answers and Deuell thanks him. 
         The Chair recognizes Senator Jackson for more questions.   
         Senator Jackson wanted to know the number of employees at TCEQ.   
         Soward answers that it is 3039.  TCEQ is the 2nd largest  
         environmental agency in the world next to the federal  
         Environmental Protection Agency.  Senator Jackson brings up the  
         article in the paper about how it took seven years for a  
         landfill situation to get a hearing in court.  Senator Jackson  
         asks if the agency has become too large to handle small issues  
         and if the legislators should look at disassembling some of its  
         duties to where they can be managed more properly.  Soward  
         thinks that when the legislators bring up new programs, they  
         need to work with TCEQ to know whether or not the money and  
         resources are available for it.  TCEQ needs a culture and  
         attitude change to be more responsive, effective, and  
         meaningful.  Soward believes the size and scope of jurisdiction  
         of the bureaucracy are not as important as the mindset,  
         leadership, and dedication and the presence of real direction  
         from the top to the bottom.  Senator Jackson asked about the  
         executive director's resignation.   
         There being no other questions for the nominee to the Texas  
         Commission on Environmental Quality, a motion was passed at  
         12:50 p.m. by Senator Hinojosa to send Larry Soward to the full  
         Senate.  He was confirmed by the committee with 7 ayes and 0  
         A motion was passed by Senator Deuell and seconded by Senator  
         Barrientos to move all nominees to the full Senate that are with  
         the following entities:  District Attorneys for the 145th and  
         258th Judicial Districts and Smith County, Judges for the 16th,  
         48th, 79th 116th, 139th, 189th, 202nd, 228th, 241st, 281st,  
         288th, 303rd, 334th, 349th, 413th, 415th, 416th, 420th, 421st,  
         and 422nd Judicial District Courts, and Justices for the 1st,  
         2nd, 3rd, 5th, 10th, 12th, and 14th Courts of Appeals, Chief  
         Justice for the 10th Court of Appeals, Texas Diabetes Council,  
         Statewide Health Coordinating Council, State Committee of  
         Examiners in the Fitting and Dispensing of Hearing Instruments,  
         Jefferson and Orange County Pilots Board, Emancipation  
         Juneteenth Cultural and Historical Commission, On-Site  
         Wastewater Treatment Research Council, One Call Board, OneStar  
         National Service Commission, Texas Online Authority, and Texas  
         Private Security Board.  The motion passed with 7 ayes and 0  
         There being no other business, at 12:55 p.m., Chairman Lindsay  
         announced that the committee would stand in recess subject to  
         the call of the Chair.  There being no objections, the committee  
         Senator Jon Lindsay, Chair                   April Carroll,