Texas Youth Commission: Conservator Versus Special Master

Yesterday, Texas Governor Rick Perry put the Texas Youth Commission under the care of a “special master,” and ordered the agency’s new acting director to develop a rehabilitation plan.

Of course, the Senate and many House leaders like Minority Leader Jim Dunnam (D-Waco), wanted the agency to be put under the control of a “conservator.”
One thing the MainStream Media has not done a good job of explaining is the difference between a “conservator” and a “special master.”

I’ll attempt to do that.

Pursuant to Chapter 2104 of the Texas Government Code, a Conservator may be appointed over a state agency under the following instances:

(1)  “Conservator” means a person appointed by the governor to act as the conservator[0] of a state agency or public  junior college in accordance with this chapter.
(2)  “Gross fiscal mismanagement” includes:
(A)  failure to keep adequate fiscal records;
(B)  failure to maintain proper control over
assets;
(C)  failure to discharge fiscal obligations in a
timely manner;  and
(D)  misuse of state funds.

Since the TYC scandal involves mistreatment of youths, you may wonder why a conservatorship was appropriate and even why one was recommended.

Governor Perry’s office claims a conservator can’t be appointed to govern TYC even though the Legislative Audit Committee recommended one.  To me, the answer is obvious: the fact that employees of the agency were having sex with inmates is a “misuse of state funds,” which would allow for the conservatorship.

Using that as a “window” to get in, a Conservator has broad and sweeping powers—the kind of powers necessary to fix a mess such as this:

§ 2104.023. CONSERVATORSHIP POWERS AND DUTIES.

(a) The conservator of a state agency under this subchapter shall ensure that the agency complies with state fiscal management policies.
(b)  The conservator of a state agency under this subchapter, may:
(1)  terminate the employment of any employee whose conduct the conservator determines contributed to the condition that caused the conservatorship;
(2)  employ personnel for the agency;
(3)  change the agency’s organization or structure as necessary to alleviate the conditions that caused the conservatorship;  and
(4)  contract with persons for management or administrative services necessary to effect the conservatorship.
(c)  The conservator may delegate any part of the conservator’s powers or duties as conservator other than rulemaking  authority to a person with whom the conservator contracts under Subsection (b)(4).

Essentially, the conservator takes total control of the agency away from its board and administrators and runs the agency.

Pursuant to Section 2104.021 of the Texas Government Code, the Legislative Audit Committee may do two things: recommend the governor appoint a conservator or recommend the agency enter into a “rehabilitation plan.”

Texas Governor Rick Perry took the easy out, and opted for the rehabilitation plan and a “Special Master” which does not replace the agency’s board and does not have all of the sweeping powers a Conservator would to clean up the mess.

Here is how a Rehabilitation Plan is supposed to work:

§ 2104.0215. REHABILITATION PLAN IN LIEU OF CONSERVATORSHIP.  (a) A state agency that agrees to enter into a rehabilitation plan shall engage the services of an independent management consulting team approved by the governor and by the presiding officer and assistant presiding officer of the legislative audit committee.  The independent management consulting team may include the state auditor, one or more appropriate state agencies, and private consultants.
(b)  The state agency entering into the rehabilitation plan shall pay the costs of the independent management consulting team’s services from money appropriated or otherwise available to the agency, except to the extent that money to pay the costs is specifically appropriated or made available through the budget execution process for that purpose.
(c)  The independent management consulting team shall assist the state agency in developing its rehabilitation plan.  The rehabilitation plan must include specific performance goals and the period in which the goals must be achieved.  The plan must be approved by the governing body of the agency and by the governor and the legislative audit committee.
(d)  If the state agency does not adopt the rehabilitation
plan within a reasonable time or if the state auditor determines and informs the governor that the state agency is not making sufficient progress in implementing itsrehabilitation plan, the governor may appoint a conservator for the agency under Section 2104.021.

In short, a Rehabilitation Plan will take longer and have less of an immediate impact than appointing a conservator.

Of course, Perry thinks his hybrid “special master” and rehab plan is a good idea:

In a statement, Perry said he is committed to unraveling the events surrounding the allegations of sex abuse of juvenile inmates that TYC officials learned of more than three years ago but that only recently came to the attention of state leaders.

“With a special master, the state will aggressively investigate reports of abuse and hold people accountable for the actions,” Perry said. “And we will develop a long-term plan that will rebuild this broken agency from the ground up.”

I don’t see that happening in a speedy manner with a special master as opposed to a conservator.

House Democratic Leader Jim Dunnam (D-Waco) has been critical of the concept of a “rehabilitation plan:”

“This scandal is not about dollars and cents, it is about sick abuse of troubled children and a government cover up.
“I applaud the senators on the committee for strongly recommending the conservatorship, but am disappointed that the House members gave Governor Perry a watered down alternative.
“We need to take immediate steps to create statutorily a conservatorship for the agency, provide for immediate law enforcement assistance through the Texas Rangers and establish a DPS hotline for confidential tips.
“The Senate voted 31 to 0 along these lines, and we hope the full House has the opportunity to act on Monday to protect the children of this state.”

In fact, Dunnam and Rep. Tommy Merritt (R-Longview) have filed HB 2340 which would put the agency under the immediate control of a conservator.

The Dunnam-Merritt bill would do a number of things.

First, it would insure that a conservator could legally be appointed over the TYC given the sex abuse scandal. Since the law says that “misuse of state funds” is required to appoint a conservator, it is my belief one could be appointed anyway.

Perry’s office has previously said the governor went with the “special master” rehab plan route because the Government Code prevents a conservator from developing a plan to rehabilitate the damaged agency.

An Executive Order directing otherwise might be useful here, but give Perry’s previous track record on EO’s, who knows how that would turn out.
The bill would also equire the conservator to station a Texas Ranger at every TYC facility to ensure the health, safety and welfare of the children in TYC’s custody, and to provide whistleblower protection for TYC employees.
It would also require the conservator to report to the public and state leaders every 60 days until the term of the conservatorship expires. This, again, is something Perry cited as a drawback in appointing a conservator.
The bill would also ensure complete and thorough official external investigations by requiring the conservator to fully cooperate with investigators, including providing documents and witnesses as necessary and create a specific toll-free number to the Texas Department of Safety to report information of improper behavior within TYC.

In the interim, a Joint Select Committee with suboena power has been appointed by Lt. Governor David Dewhurst and House Speaker Tom Craddick to investigate the mess. It includes:

The committee will be co-chaired by Senator John Whitmire, D-Houston, Chair of the Senate Criminal Justice Committee and Rep. Jerry Madden. R-Richardson, Chair of the House Corrections Committee. The Senate appointees are Sen. Chris Harris, R-Houston, Sen. Juan “Chuy” Hinojosa, D-McAllen, Sen. Kel Seliger, R-Amarillo, Sen. Florence Shapiro, R-Plano, Sen. Royce West, D-Dallas and Sen. Tommy Williams, R-The Woodlands. The House appointees are Rep. Harold Dutton. D-Houston, Rep. Aaron Peña, D-Edinburg, Rep. Larry Phillips, R-Sherman, Rep. Debbie Riddle, R-Tomball, Rep. Sylvester Turner, D-Houston and Rep. Corbin Van Arsdale, R-Tomball.

Personally, I’m glad to see Royce West, Aaron Pena, Sylvester Turner, Chuy Hinojosa and Harold Dutton on this committee. However, I think some more approprite selections could have been made. For one, Rep. Tommy Merritt, a former federal law enforcement officer, should have been on this committee. He and House Democratic Leader Jim Dunnam are carrying legislation to appoint an immediate conservator for TYC. I also think Van de Putte or Zaffrini would have been better choices than Shapiro for a number of reasons.

Why an advocate for the incarcerated like Rep. Terri Hodge (D-Dallas) isn’t on this committee is also baffling.  With the exception of Co-Chair Jerry Madden, there isn’t a single Dallas-area state rep on the select committee, although there are two from nearby Harris County districts: Van Arsdale and Riddle.

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