Carlos Guerra: With toll roads, the devils in the details could be astounding

Two decades of white-knuckle drives to Austin on Interstate 35 are proof that highway work isn't a quick endeavor. But what few realize is that planning started years before construction, and Texas Department of Transportation planners have never stopped altering and tweaking their plans.

It makes sense. Big highway projects can cost hundreds of millions of dollars and permanently change communities.

But other things to consider are that a major highway built to nowhere will, in time, make it somewhere because a highway goes there. Big roads can defy the laws of supply and demand. Planners often warn against trying to "build your way out of congestion" because building a highway might actually increase demand and necessitate even greater expansion.

Phillip Russell, director of TxDOT's Turnpike Authority Division, is now busily working on details for Texas' regional toll roads and the Trans Texas Corridor.

With new powers granted by the Legislature, TxDOT's dependence on fuel taxes to fund road building will decline as reliance on tolls — collected by the state and private-sector concessionaires — increases.

Private-sector money, TxDOT officials say, will accelerate regional projects and fund construction of the Trans Texas Corridor, whose 1,200-foot-wide right of way — with tolled lanes, rails for commuter and cargo trains, and right of way for utilities — will crisscross the state.

But the conceptual map, which depicts the potential quarter-mile-wide routes within 50-mile-wide swaths, has so worried farmers, ranchers, wildlife conservationists, water rights activists and environmentalists that they have coalesced to oppose the project, and toll-roads in general.

"You have to understand that the Trans Texas Corridor will be built as needed and as private-sector funding makes it feasible," Russell says, adding that, so far, TxDOT has awarded only one TTC contract, a $3.5 million pact with Cintra-Zachry to develop plans for the first leg, which will eventually link Oklahoma and Mexico.

All toll road contracts, Russell emphasizes, will include an option for Texas to buy the road back, a seemingly pointless gesture because if the state can't afford to build the roads now, how will it afford to buy them back? Russell is also frank about why investors would want into such deals.

"Are they willing to take all this risk out of the goodness of their hearts? Of course not," he says. "Clearly, they want a return and they want to be paid back."

He also is clear about another little-mentioned element likely to be part of toll road bond issues: Underwriters will probably require limits on options for people who choose not to pay tolls.

"Wall Street wants to know they'll get paid," he says of the no-compete clauses, but adds that discussions with potential investors lead him to believe that the bankers will allow Texas to build competitive commuter rail and roads "already on our 25-year plans."

But with that reassurance — and realizing how inexact planning can be — TxDOT's planners better have the finest crystal balls available, because such constraints mean that regardless of unforeseen changes, only those toll-free roads already in the plans will be allowed over the next 25 years.

And since toll road bonds won't mature for 40 years, after year 25 it would be 15 more years before the state could build competing roads for people to take toll-free.

Governments, businesses sue attorney general to keep records in dark

Some say lawsuits a tactic to delay negative news

By Chuck Lindell

AMERICAN-STATESMAN STAFF

Thursday, March 16, 2006

Under Texas open records laws, state and local governments cannot withhold information that has been requested unless the attorney general's office agrees that the records can legally remain secret. If the attorney general disagrees, the government or agency has two choices: release the documents or sue the state.

Most governments give in. A few choose to fight. Some get dragged into court anyway by third parties, typically businesses hoping to protect financial information in bids or contracts.

Last year, 76 such lawsuits were filed to keep information hidden from public view, up from 64 the previous year.

Some lawsuits argue weighty matters such as security. But if a decade's worth of trends continue, most will be dismissed or settled in the attorney general's favor, prompting complaints that many of the lawsuits are delaying tactics designed to kill or postpone negative news.

"I can't say everyone who sues the attorney general doesn't have a legitimate argument, (but) obviously, sometimes it's done as a stalling tactic," said lawyer Joel White, president of the nonprofit Freedom of Information Foundation of Texas.

"Very frequently, if a story can be delayed for instance past an election or past a primary — or just delayed until it's no longer newsworthy — that's all the government agency is trying to accomplish," White said.

Brenda Loudermilk, chief of Attorney General Greg Abbott's open records litigation section, said most of the case law is well established, allowing her to dispose of most lawsuits by negotiating with the filer or asking a judge to dismiss the lawsuit.

"I've been doing this at least 10 years, and I decided early on that most governmental bodies that sue the attorney general as plaintiffs are not going to push their case. Most time they file suit and sit back and wait because (then) they don't have to release the information," Loudermilk said.

About one in four lawsuits go to trial, such as a Houston firefighter's attempt to suppress phone conversations, taped by an undercover police officer in 2003, in which he tried to buy "untraceable" poison to kill his wife, court records show.

Abbott's office had ruled that the tapes, minus personal details about the wife, should be released. Former firefighter Richard Frank Thomas, joined by his forgiving wife, Jackie, disagreed.

"I thought this one can be disposed of easily," Loudermilk said. "There's nothing private about a man wanting to kill his wife, particularly when he was a public employee."

The judge agreed to dismiss the lawsuit but wanted to redact additional information. Loudermilk's department disagreed, so the case went to trial anyway, ending with a compromise and eventual release of the tapes.

Loudermilk estimates that since 2000, her section has won 35 court judgments and lost 12.

Two pending cases, though less flamboyant, could provide key legal decisions:

•The Department of Public Safety has sued to block the release of security camera videos taken at the Capitol.

The Texas Observer newspaper is seeking to verify reports that Dr. James Leininger, a leading Republican donor, met House members in a Capitol hallway to urge passage of a school vouchers bill. The DPS argues that releasing the videos would reveal camera placement and other security details.

•The Texas Department of Transportation, with developer Cintra Zachry, has sued Abbott to prevent release of conceptual plans for the Trans-Texas Corridor, a 600-mile swath of roads, rail and pipelines planned to run from Oklahoma to Mexico.

Cintra Zachry was awarded a $3.5 million planning contract, most of which was made public, minus the conceptual development and financial information. The company, which still must compete for the construction contract, claims the information could help competitors.

But Loudermilk said the contract could result in Cintra Zachry gaining work without competitive bidding. "A project this big, that's 50 years in the making and billions of dollars — shouldn't the public have a right to know how it's being developed and financed?" she said.

Incidently, because another state agency is involved, the attorney general's office is working both sides of the Cintra Zachry lawsuit. While Loudermilk's open records litigation section, comprising two lawyers and one part-time lawyer, represents Abbott, the agency's financial litigation division represents the highway department.

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