UPDATE, 4 p.m., Oct. 8, 2014: We updated this article with detail about how the attorney general carries out the 2007 mandate that certain legal settlements win legislative consent. This change did not affect our rating of Abbott’s debate statement.
Given an opportunity, Democratic gubernatorial nominee Wendy Davis pressed Republican Greg Abbott, the Texas attorney general, about his office continuing to battle school districts in court despite a state district judge ruling the school finance system to be both underfunded and unconstitutional.
"The only thing right now coming between our children and appropriate funding of their schools today is you," Davis asserted in the pair's Sept. 19, 2014, debate in the Rio Grande Valley. "On behalf of the 5 million children of this state, will you agree tonight that you will drop your appeals and allow our schools to be appropriately funded?"
Abbott responded by blaming legislators, including Davis, a Fort Worth state senator, for limiting his options. "Sen. Davis," Abbott replied, "there is actually another thing coming between me and settling that lawsuit. And that is a law that you voted on and helped pass in 2011 that removes from the attorney general the ability to settle lawsuits just like this."
Did legislators including Davis move to keep the attorney general from settling lawsuits?
We started this fact check by asking the Abbott campaign for elaboration. Spokeswoman Amelia Chasse pointed to a proposal that won legislative approval in 2011, with Davis among supporters.
Then again, it came clear, the legislative leash on the attorney general’s ability to settle cases originated in 2007 action -- more than a year before Davis won her first Senate term. The 2007 law said the attorney general must get legislative approval/consent to settle matters with damages costing the state more than $25 million. The 2011 change lowered the threshold to $10 million.
Resolving the school-finance matter would surely cost more than either limit.
In 2013 and again in August 2014, state District Judge John Dietz of Austin ruled against the state in the case, though he also gave lawmakers until July 2015 to act. At the time of the Davis-Abbott debate, state lawyers overseen by Abbott were expected to appeal to the Texas Supreme Court (which they did a few days later).
By email, David Thompson, a lawyer representing hundreds of districts in the litigation, told us either settlement threshold -- $10 million or the previous $25 million -- "would be substantially below what it will take to resolve the school finance lawsuit."
Meantime, former state Sen. Steve Ogden, who chaired the Senate Finance Committee and authored the settlement thresholds that passed into law, told us by phone that Abbott can’t settle the school case without the Legislature’s permission "because it’s going to cost hundreds of millions of dollars to do it." He and Rep. Tryon Lewis, R-Odessa, chairman of the House Judiciary & Civil Jurisprudence Committee, were guided to us by Chasse. Both said the 2011 action effectively toughened and arguably reaffirmed the original restriction.
Here are the details behind the legislation leashing the attorney general’s power:
In 2007, according to legislative records, Ogden, R-Bryan, won passage of Senate Bill 2031,which required legislative consent or approval of the settlement or compromise of a claim or action against the state involving state expenditures exceeding $25 million. Specifically, the law barred the attorney general or any lawyer representing the state from entering into a settlement of a claim without legislative consent or approval.
The new law said this limit applies if the settlement requires the state to pay damages exceeding the $25 million in a biennium or if it "commits this state to a course of action that in reasonable probability will entail a continuing increased expenditure of state funds over subsequent" two-year periods, which strikes us as sweeping in a possible resolution of the school suit.
In May 2007, very few legislators objected to Ogden’s proposal as it headed toward Gov. Rick Perry. A House Democrat voted "no" in that body’s final vote and three Democratic senators cast "no" votes when the Senate later agreed to House amendments.
Four years later, with Davis in the Senate, lawmakers and Perry signed off on Senate Bill 899, reducing the dollar threshold for legislative involvement. An accompanying analysis, by the in-house Senate Research Center, said: "In keeping with increased scrutiny of state expenditures, this bill would lower the threshold settlement amount requiring legislative approval from $25 million to $10 million." Senators including Davis unanimously advanced the reduction to the House, where it won approval with one Republican voting "no."
To recap: Davis was not in the Legislature when lawmakers initially limited the attorney general’s ability to settle cases. She was a member of the Senate that approved a toughening.
We asked Abbott’s office to explain how, day to day, the limit has been applied to cases. A spokesman, Jerry Strickland, replied after we initially published this fact check, saying by email: "Procedurally, when a settlement may implicate the statute, the opposing party is notified that any settlement reached will be subject to legislative approval. The terms of the settlement are negotiated before the settlement is brought to the Legislature. The Legislature can then approve, reject or request modifications to a settlement."
We also asked about the attorney general’s biennial reports to lawmakers on such settlements; such reports were required by the 2007 law. Each biennium, Strickland said, the agency "provides privileged attorney-client communications concerning potential settlements requiring legislative approval. If a settlement is reached, the settlement is presented to the Legislature for consideration."
Abbott said Davis voted for a 2011 measure that removes the attorney general’s ability to settle lawsuits like the school funding case.
That’s not so; a 2007 law created the legislative hurdle for major settlements -- and, significantly, Davis wasn’t a senator then.
Still, this claim has an element of truth because Davis joined nearly every other lawmaker in tightening the limit in 2011 by reducing the threshold for settlements the attorney general may reach without legislative sign-off to those costing the state $10 million or less.
Given how Abbott characterized the law at issue, we rate his claim Mostly False.
MOSTLY FALSE – The statement contains an element of truth but ignores critical facts that would give a different impression.
Click here for more on the six PolitiFact ratings and how we select facts to check.
Emails, Amelia Chasse, deputy communications director, Greg Abbott campaign, Sept. 22, 2014
Telephone interview, Steve Ogden, former state senator, Houston, Sept. 23, 2014
Texas House vote for final approval of House-amended version of S.B. 2031, House Journal, May 23, 2007; Senate concurrence in House amendments to S.B. 2031, Texas Senate Journal, May 25, 2007 (accessed Sept. 23, 2014)
Telephone interview, state Rep. Tryon Lewis, Odessa, Sept. 23, 2014
Email (excerpted), Jerry Strickland, press secretary, Office of the Attorney General of Texas, Sept. 30, 2014
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