On Monday, June 21, 2010, Barbara Ann Radnofsky sent the following letter to Attorney General Abbott with a proposed complaint against Wall Street. 

Nikki Laing probably won't be an actual lawyer until 2012, and her article in the Baylor Law Review won't be officially published for a couple more weeks.

But already it's causing a stir. The reason: The argument she presents could cost the state of Texas a few billion dollars a year.

The article bears the unsexy title, “An Income Tax by any Other Name Is Still an Income Tax: The Constitutionality of the Texas ‘Margin' Tax as Applied to Partnerships and Other Unincorporated Associations.”

Its 25 single-spaced pages can be boiled down to this: The new business tax enacted in 2006 during a special session called by Gov. Rick Perry so that he could lower school property taxes violates the Texas Constitution.

The tax replaced the old franchise tax on corporations which had come to be called the “stupid tax” because so many corporations had avoided paying it by technically placing themselves under partnerships.

Before I summarize Laing's argument, I should note that Laing is not your average law student. At 35 and the mother of an 11-year-old, she has
already built a successful small business, a Schlotzsky's sandwich shop. She then went to school to become an accountant and last year scored in the top 10 in the Texas CPA exam.

And her article about the new margins tax won a $1,000 prize for the best law review article this year at Baylor. It's already been posted on a couple of websites for professionals, where it has ranked in the top 10 for hits.

Highlights of her argument include these:

• •
The Texas Constitution includes an amendment requiring that a statewide vote of citizens to pass an income tax on individuals, including income they receive from partnerships and unincorporated associations. The law establishing the margins tax was enacted without a vote of the people
and taxes partnerships and other unincorporated businesses.

• • The new tax is calculated by taking numbers directly from a firm's federal income tax return and then deducting specified expenses.

• • The Financial Accounting Standards Board, which sets accounting rules nationally, determined that the margins tax is an income tax for reporting purposes. The board didn't bother to refer the question to a
committee, as it normally does for questions that are at all close.

• • The fact that the law itself states that it “is not an income tax” is irrelevant. Laing cites a number of U.S. Supreme Court decisions on the point, including one that said “the mere declaration contained in a statute that it shall be regarded as a tax of a particular character
does not make it such if it is apparent that it cannot be so designated consistently with the meaning and effect of the act.”

One argument she did not deal with concerns a cruel aspect of the law, used by the law's supporters to prove it isn't an income tax. Since it allows companies to deduct only specified business expenses and not all of them, the tax can apply even if a firm lost money in a year.

“It's still a type of an income tax,” Laing said Friday. “It's not the same as the federal income tax, but that doesn't prevent it from being a type of income tax.”

These are not new arguments. In fact, some lawyers (whose partnerships had previously been exempt from the state franchise tax) threatened to challenge the tax's constitutionality even before the law was passed.

“I'm very puzzled by why there hasn't been a suit,” said Laing.

Some legal experts expect it to happen before long.

Right now the Texas Comptroller's office is preparing to challenge some of the ways in which some companies have interpreted the law in order to lower their taxes in their 2008 returns.

“Some of the companies will take the comptroller's office to court and it would be natural to challenge the tax's constitutionality as part of
that suit,” said one tax law expert.

If it is challenged, it won't languish in the courts.

The law requires that any such suit goes directly to the state Supreme Court, and that the court rule within 120 days.

With the Legislature already facing a large shortfall due to the economy, a tax lawsuit this spring would add to the drama.

Barbara Ann Radnofsky consumes books like lemonade on a hot day.

As co-owner of the Brazos Bookstore here, she whirls about the Texas section, biographies and cookbooks. She bought an armful of new material recently, including a news magazine with Gov. Rick Perry on the cover.

"Everybody's got a talent. I can read fast," she said.

But friends and colleagues say Radnofsky, 53, simply brings to reading the same quality she does to much of her life and work: intensity. The Democrat now has trained her vigorous mind on toppling incumbent Attorney General Greg Abbott.

She faces a steep climb. Abbott has raised $10 million in his quest for a third term, and he's a popular Republican in a GOP-dominated state.

Radnofsky is familiar with the odds. In 2006, she worked ferociously to beat Republican Sen. Kay Bailey Hutchison, but lost by more than 1 million votes.

Vying to become the state's top lawyer is a logical step for Radnofsky, a courtroom bulldog.

She learned as a defense attorney on medical malpractice and corporate cases at the Houston firm Vinson & Elkins, making partner in 1987. She also handled personal injury lawsuits, and retired from the firm when she decided to run for the Senate.

Those in legal circles here describe her as having an almost maniacal devotion to the job.

"One of the most intense competitors I've ever had the pleasure or displeasure of working with," said Houston lawyer Stanley Pfeiffer. "If I ever had to have anyone defend me on something serious, I'd beg her to represent me."

Radnofsky sheds the intensity at home, a two-story prairie-style tucked in a leafy cul-de-sac not far from the home of Bill White, the Democratic candidate for governor.

In the kitchen, her retriever mix Annie ran circles around husband Ed Supkis, a physician. She checked on her ailing mother, Eunice, and described her passion for Dead Sea Scrolls history. The couple has three grown children.

Books are a ready outlet for Radnofsky. She and a handful of partners purchased the independent Brazos Bookstore in 2006 after it was in danger of closing.

She chatted up a book club recently, discussing both her campaign and good reads. Few major nonfiction works come out that she doesn't read – or at least know about.

She often blows through two books a week. She focuses on nonfiction and, of course, politics. She can rattle off long quotes from Abraham Lincoln speeches.

Radnofsky does not hail from a political family. Her father, Matthew, worked at NASA.

But when Hutchison eyed a run for governor in 2006, Radnofsky took interest and immersed herself in the Senate campaign. The move surprised many.

"I said, 'Are you crazy?' " recalled Glen Rosenbaum, a friend and lawyer.

She made more than 600 trips across Texas. But Hutchison, who opted to seek re-election, trounced her. The race was a "tremendous strain for [Radnofsky], both physically and mentally," Rosenbaum said.

This time, Radnofsky said, she has learned lessons. She has kept her foot on the gas, but wants to navigate more smartly.

She travels less. She has hired seasoned Democratic consultants and pollsters, including some who worked for Barack Obama and Hillary Rodham Clinton in 2008.

And she has researched her opponent's record as though prepping for a big case. Documents and binders fill her home office.

The paper trail, she said, exposes flaws in the attorney general's accounting of child support payments, among other shortcomings. Abbott dismisses such critiques, saying his office has improved child-support collection.

If elected, she pledged to weed out what she believes is fraud and profiteering in the state's insurance,
electricity and natural gas industries.

She also hopes to neutralize an office that she believes has become a tool "for partisan political gain."

Her doggedness might appear quixotic, almost foolhardy, given the political odds. Supporters believe otherwise.

"It would have been easy for Barbara to say, 'Kay Bailey Hutchison is the sitting incumbent and I don't want to run.' Or, 'Greg Abbott is the sitting incumbent and I don't want to run,' " said Jonathan Marsh, a former Vinson & Elkins colleague.

"But Barbara is someone who feels strongly about her values and her vision for Texas. And the fact that she is willing to run speaks to her values."

Our statewide leaders aren’t fighting for us; they are fighting for themselves. Texas’ highest law enforcement official is the Attorney General, the People’s Lawyer. What happens when the People’s Lawyer gives bad legal advice and abuses the office for political gain? The office of the Attorney General harms our everyday lives, our safety and the safety of our children.

The Texas Attorney General picks his battles. It was a Texas Attorney General opinion which enabled Tom DeLay’s mid decade redistricting. To the great credit of the Texas Rangers in 2006, an election year, it was a Ranger who brought concrete evidence of sexual and physical abuse at the Texas Youth Commission to the Texas Attorney General. The Attorney General turned his back. Instead, he used Attorney General resources to target elderly and minority Democrats assisting the homebound to cast their mail in ballots. Attorney General Abbott squandered seven figures of discretionary funds, finding no organized widespread fraud or voter impersonation. Reports of investigators spying on an elderly woman in her bathroom and knocking on her door amid selective prosecutions of Democratic activists convey a political purpose: voter intimidation. Media reported a County Democratic Party no longer sending out campaign volunteers to homes for voter registration. While litigation settlement curbed certain abusive practices by the Attorney General, Texans remain burdened by an Attorney General prone to attack non-existent problems. He’s supported stricter voter identification, including the Indiana photo identification law. That’s harder for poor, elderly and minority voting prospects. Attorney General Abbott was too quick to absolve BP post-April 20 oil spill as having made “all the right actions and all the right comments” as of May 3.  Mr. Abbott’s two million dollars in oil and gas campaign donations blinded him to his duty: serve Texas, not British Petroleum. 

As a wife, mother, teacher and 30 year lawyer, I will fight for the people of Texas. Greg Abbott will not. I won’t turn my back on fraud or crime. I won’t use the Opinion process to halt legitimate investigation of suspect state agencies. Mr. Abbott halted the Comptroller’s investigation of the builder-oriented Texas Residential Construction Commission. The Attorney General opinion was sought within days of a $100,000 donation to the AG by homebuilder Bob Perry and wife, part of their donations exceeding a million dollars.

As the first woman Texas Attorney General, I will fight fraud and crime whether committed with a computer or a tire iron. I’ll continue to highlight the issues important to Texans and the incumbent Attorney General’s politically motivated actions harming Texas.

Texas Attorney General Greg Abbott's May 3 BP oil spill press conference following his BP briefing resulted in his declaration that BP had, up to May 3, made "all the right actions and all the right comments." Abbott's bravado and praise of BP is matched only by BP following the April 20 spill. Examine the misconduct arising before Mr. Abbott's May 3 absolution of BP, absolution by the chief law enforcement officer of Texas who should be representing the interests of Texas, not foreign oil companies.

1. On April 25 and 26, BP assumed and boasted, with increasing confidence, it would handle the spill offshore. It did not. The false confidence pervaded and tainted BP's handling of the crisis, as follows.

2. BP chose and used inferior dispersants far more toxic than those of competitors, and far less effective than competitors, in handling Southern Louisiana crude. The dispersants dropped much oil out of site, but in to unseen-from-surface massive plumes.

3. BP exhibited "confusion" about how to seal off the exploratory well, according to the first round of Congressional investigation.

4. BP handed out contracts to damage claimants barring future claims, which it later conceded as a misstep.

5. BP took too long to get the claims process up and running, its CEO has now conceded.

6. BP misstated leak size as 1000 barrels/day, and objected to the government's revision to 5000 barrels/day, also deemed inaccurately low by scientists and others observing the amount of flow siphoned while the spill continued.

7. BP resisted measurement and efforts to obtain information to assist in measurement of the oil flow and spill until after containment, ignoring valid reasons for contemporaneous and accurate measurement efforts.

8. BP proceeded outside of its own contingency plan, which it failed to assess.

Attorney General Abbott has yet to renounce his incorrect May 3 statements which place the State of Texas in an uncomfortable position. Texas' chief lawyer appears to be the chief defender of British Petroleum. We've seen no more absolute quotes than Mr. Abbott's language defending BP with his May 3 praise of BP making "all the right actions and all the right comments." Mr. Abbott's receipt of two million dollars in campaign donations from the oil and gas industry may explain his behavior.

The Texas Attorney, finishing his second four year term, has made headlines for his letters, lawsuits, and press releases criticizing the federal government for its health care reforms.

If he really had the power to reverse Congressional actions and require fair treatment of Texans, he should have filed suit long ago for a VA hospital south of San Antonio.

For many, many years Texas has ranked among the worst states for veterans' care. During the incumbent Attorney General's long reign, Texas ranked near the bottom of the barrel, with huge numbers of wounded, injured or sick veterans denied VA medical care. The distance our South Texas veterans must travel for VA hospital care represents a national shame.

The Attorney General has spent our tax dollars and his official time and energies claiming that Congress has no constitutional authority to implement the health care reform law recently passed. The legal decision on constitutionality will turn on whether or not Congress has a “rational basis” for the law. The courts won't ask if the law is the best solution, but rather whether the law promotes a legitimate government end, with a reasonable and not arbitrary basis for doing so. The Attorney General claims his lawsuit is legally valid. If so, he'd have a much easier time showing massive unfairness and harm to Texas' veterans.

In December 2009, prior to the health care law passage, Texas Attorney General threatened suit by press release and correspondence asserting Texans' individual rights and limits on constitutional authority. Why has he not asserted the rights of Texas veterans to health care? In truth, our State Attorney General lacks the Constitutional power to assert Texans' individual rights; a state and its agencies are not "persons" with rights to assert due process. If he had such power, it should first be used for the individuals with superb claims to federally promised medical and dental care: our veterans. The Texas Attorney General should have sued on behalf of our deserving veterans treated so poorly relative to other states, and relative to veterans outside South Texas.

On December 30, 2009, the Texas Attorney General co-signed a letter to Congressional leaders protesting political horse trading. Yet he never objected when, in 2006, politically powerful Nevada received a firm commitment for a new Las Vegas medical center to "enhance veterans’ access to VA's world-class health care in the area." The year prior, the VA spent nearly $700 million to serve Nevada's 245,000 veterans. Nevada already had significant facilities in the form of Las Vegas clinics and the Reno medical center and nursing home. The much greater needs of Texas went unmet. Why did the Texas AG stand idly by and not challenge the federal decision-making?

Texas Attorney General Greg Abbott claims he can prevent Congress from requiring, subsidizing and exempting people who do not buy health insurance. The Attorney General forgets history in claiming that Congress cannot rationally require certain action, when inaction harms people. In the case of insurance, we all pay more for health care when folks are uninsured on a large scale. Other cases have not involved economic harm. The Heart of Atlanta Motel refused to rent rooms to African Americans in violation of the Civil Rights Act of 1964 ban on racial discrimination. The motel owners claimed many defenses, including a right to refuse service, just as Lester Maddox claimed rights to refuse service on the basis of race at his restaurant. The business owners claimed their conduct in not doing something didn't affect interstate commerce. The business owners lost. Congress could constitutionally mandate they serve African Americans, the U.S. Supreme decided, in the historic Heart of Atlanta Supreme Court decision.

Under the Constitution, individuals do not make the decision as to whether they affect commerce. The independent judiciary makes that decision in a country where we have rule of law, not rule by princes and kings.

The Attorney General's claim ignores the impact of the choice to not (or in many cases, economic or medical reasons a person wants to but cannot) buy insurance. Congress provided massive evidence that remaining "uninsured" affects commerce. The Senate Committee on Finance found that "health reform is an essential part of restoring America's overall economy and maintaining our global competitiveness." The Report detailed the 93 percent increases in average family premiums from 2000 to 2009. Rising health care costs have played a huge role in bankruptcies affecting millions of people each year. Hospitals and clinics provide tens of billions of dollars each year in uncompensated care for the uninsured. Americans pay a “hidden health tax” in the form of higher medical costs and larger premiums for the insured. The "hidden health tax" cost to the average family paying premiums: $1,000. Uninsured, ill people, regardless of pre-existing condition, accident or source of problem are entitled in emergency situations under the federal EMTALA law to treatment and stabilization at hospitals and in ambulances. This is the well-known, most expensive kind of health care. And this is another mandate: federal law mandates health care providers to give care, but the law provides no funding, no source of reimbursement for the overwhelming costs.

The Texas Attorney General cannot replace elected, Congressional decision-making with his personal, partisan or political opinion on what is best. Congress must have a "rational basis," for the way it seeks to meet lawful goals. Constitutional law gives this role to our elected Congress, not the Texas Attorney General. If the Texas Attorney General was serious about challenging federal unfairness to Texas and convinced of his legal correctness, he should have and still can sue for a VA Hospital south of San Antonio.

###

Barbara Ann Radnofsky is the Texas Democratic Party nominee for Attorney General. She graduated with honors from the University of Houston and the University of Texas School of Law. She was honored as the Outstanding Young Lawyer of Texas in 1988 and for the past 17 years she has been listed in "Best Lawyers in America." Prior to 2006, she was a partner at the law firm of Vinson & Elkins in Houston, where she served as head of the Alternate Dispute Resolution Section. 

It's no surprise that Arizona's new immigration enforcement law is unpopular with Texas Democrats. But it's hard to find a high-ranking Republican in the state who'll endorse it, either.

Some lawmakers are all for it. Republican Reps. Leo Berman of Tyler and Debbie Riddle of Tomball say they'll file identical legislation when Texas lawmakers convene in January. Similar proposals have been filed — and left for dead — in previous sessions.

The ripple effects from the Arizona immigration bill have spread throughout the Southwest and could climax in Texas this weekend. Marches in protest to the bill and to champion for comprehensive immigration reform are scheduled in many of the state's major cities.

We asked some statewide officeholders and their challengers about the Arizona law to see where things stand now, at the beginning of the general election cycle that will precede the next session of the Legislature.

Gov. Rick Perry and his Democratic challenger, Bill White, both say the federal government isn't doing its job. White's flatly against the Arizona bill. Perry says he's got problems with it, too. Both spoke through staff or in press releases.

Perry started off his statement by saying the feds have failed to do their job on the border, but he added, "I have concerns with portions of the law passed in Arizona and believe it would not be the right direction for Texas."

He said law enforcement officers have enough to do without having immigration enforcement to worry about. "Our focus must continue to be on the criminal elements involved with conducting criminal acts against Texans and their property," Perry said in a press release.

He says he's asked the federal government for 1,000 National Guard troops to help police with border enforcement, and also for drone aircraft that can be used to monitor the border (Homeland Security officials say that air surveillance is coming soon).

Aides to White said he's against Texas having a law like the one recently signed into law in Arizona. And his reasoning is, in part, similar to Perry's, that "we can't have police officers taken off of answering 911 calls in order to stop cars on the street or ask for people's papers in a restaurant," said spokeswoman Katy Bacon. "... And how would police work to enforce this Arizona law, say, in a restaurant without racial profiling? Ask everyone to produce their passports and birth certificates?"

Linda Chavez-Thompson, the Democratic nominee for lieutenant governor, didn't have anything good to say about the new law in the West. “We learned from what happened in Arizona last week that the promise of the American Dream is not a guarantee.  We have to defend it.  The law they passed in Arizona is not only anti-immigrant; it’s anti-American," she said. "This law doesn’t distinguish between criminal and undocumented.  It doesn’t distinguish between undocumented and citizen.  And it ignores our history — because the founders of this country were not afraid of immigrants, they were immigrants.  And their dream wasn’t to raise the power of the state, but to safeguard the rights of the individual."

Chavez-Thompson said the Arizona statute will cost that state's economy, and that police are against it. "I’ll fight to ensure that Texas rejects the advice of those who don’t understand economics, who refuse to listen to law enforcement, and have little respect for the rights of citizens to be free of police harassment,” she said.

In his official statement on the question, Lt. Gov. David Dewhurst never said whether he agrees or disagrees with the Arizona law. “I understand the frustration of the people of Arizona with the federal government’s failure to secure our borders and stop illegal immigration, drug trafficking and dangerous transnational gangs coming across from Mexico.  Texans are frustrated too... While Texas is doing its part, I think the federal government should do theirs by dramatically increasing the number of border patrol agents to secure our borders once and for all.”

The state's attorney general will have to enforce whatever the Legislature and the governor decide to do

Attorney General Greg Abbott hit all the talking points, spanking the feds, noting legal concerns with the new law, and saying the state will protect you. “The Federal Government's primary job is to protect our borders and the safety of our citizens — and they aren’t getting the job done," Abbott said in a press release. "Even President Obama acknowledged that Arizona acted out of frustration because of the federal government’s failures. There are legitimate concerns with the Arizona law and while those are sorted out, Texas will continue demanding that the federal government stop dithering while Texans' safety is at stake. In the meantime, Texas is redoubling its efforts to provide resources — including personnel and technology — to protect Texans and secure our border.”

His Democratic opponent, Barbara Ann Radnofsky, strongly opposes Arizona's approach. “The Arizona law should be declared unconstitutional," she said. "Any similarly worded Texas law should also be declared unconstitutional. The government should not be in the business of violating individual U.S. citizen’s rights, regardless of the citizen’s appearance. The sitting Texas Attorney General, consistent with his belief that he has the power to sue the federal government for fair treatment of Texas should now insist that Texas receive its fair share of federal funding and assistance for enforcement and security. Texas taxpayers should not bear the burden for enforcement and border security, including our vital ports.”

Agriculture Commissioner Todd Staples didn't respond to requests for comment. But his opponent, Democrat Hank Gilbert, said the Arizona law would be expensive for people in agriculture.

“If you want to talk about driving up food costs, slashing tax revenues, and damaging our economy, then Leo Berman's bill is exactly what you want," Gilbert said. "I cannot imagine someone proposing something so irresponsible or damaging to Texas agriculture.”

According to Gilbert, some of Texas’ agriculture labor costs are currently as high as $26.50 per acre, which he said would undoubtedly increase after wages rose in response to the bill.

“The fact of the matter is this: undocumented immigrants make up a significant segment of the agricultural labor force in Texas. These men and women help Texas grow food not just for our state, but also for the rest of the nation. If you take away their ability to move freely within our society and survive without being under constant threat of police action, they will go somewhere else for jobs," Gilbert said.

“I personally do not want to live in a state where Hispanic Americans are constantly stopped and asked for their 'papers.' It is reminiscent of living in Nazi Germany or the Soviet Union where identity papers were required at all times. Texas doesn't need that," he said.

This past week, the Texas Attorney General race heated up post primary. The incumbent Attorney General chose an interesting personal attack in lieu of any substance. On the front page of the Saturday, March 27 Dallas Morning News he chose to go immediately negative with personal attacks, including: “Radnofsky failed to grasp the issues.” My website pokes gentle fun at my love of issues and wonkiness. My 30 years as a lawyer and college debate training reflect longstanding interest in issues. Folks may disagree with my issue/policy analysis and opinions, but ordinarily come forward with reasons.

As the Democratic nominee I’ve made issue rich attacks, explaining that the incumbent had stumbled in litigation several times, including his incorrect claims to the EPA on his anti pollution record.  Our campaign emphasized his losing litigation against application of the Americans with Disabilities Act and the Texas Attorney General's hypocrisy in his suit against health care reform.  We contrasted his current claims against health care reform with his successful advocacy for Texas Attorney General managed children's health care as an option. This advocacy followed the Texas Attorney General's long time embrace of federal mandates which he enforced against certain Texas parents required to make medical child support payments. These are serious criticisms of the Attorney General, who enabled Tom DeLay's mid decade redistricting and gave the opinion which allowed the controversial margin tax, which violated the Texas Constitution according to my legal briefing. 

The general campaign is less than one month old, and my campaign has made it issue rich. For example, when Mr. Abbott claimed Texas, in a public filing, to have "an acclaimed record" on environmental matters, citing the ASARCO pollution settlement, I pointed to the inadequacies of the settlement and Texas' number one pollution rankings.  State Sen. Shapleigh gave the Texas Attorney General plenty of notice that the 100 acre remediation omitted 250 acres of contiguous, ASARCO owned land upstream, impacting cleanup on site.  As Senator Shapleigh explained to the Texas Attorney General, protesting the settlement for its inadequacies, all of the lead, arsenic, and other heavy metals on the eastern acreage upstream flow to the smelter site, over 100 acres of impervious coverage, and down toward the Rio Grande and American Canal. The settlement also ignored ASARCO slag contaminated fertilizer sold in El Paso, affecting properties in the area. 

I’ve challenged Attorney General Abbott to a debate on the issues in January, when he claimed that the Helvering decision by Justice Cardozo was a warning to Congress on the limitations of its powers. I said he wrongly cited Helvering, which stands very much for the opposite proposition. He still hasn't responded on that issue. Are we reduced to seven months of personal attacks, with literally no substance< I will continue to call for reasoned debate on the issues. The Attorney General has made competence an issue; let’s debate competence too.

Congress passed an imperfect health care bill, with mandates offending many people. Does Texas Attorney General Greg Abbott have the power to sue to stop the signed law?

Abbott claimed in the American-Statesman (March 30, "Abbott offers explanations on challenge to health law") that Congress has no power to regulate "inactivity," "failure" or "refusal to be involved" in health insurance purchase, defining the situation: " ... we have people who are refusing to participate in the stream of commerce by choosing not to buy insurance."

Abbott ignores the effect of the "choice" not to buy insurance. The attorney general must prove that the "choice" not to pay doesn't affect commerce. (Abbott might be incorrect that everyone makes a choice as to insurance purchase. Many folks can't afford it.

If "the choice" affects commerce, Congress might constitutionally regulate, if it has "rational basis." Under constitutional law, if Congress' findings demonstrate rational basis, the regulation will stand, even if it's not the best plan or imperfect.

Does "the choice" to be uninsured affect commerce? Congress spent many pages proving it does. The report from the Senate Committee on Finance concluded that "health reform is an essential part of restoring America's overall economy and maintaining our global competitiveness."

The report detailed 93 percent increases in average family premiums from 2000 to 2009. Rising health care costs play a huge role in bankruptcies affecting millions every year. Hospitals and clinics provide tens of billions of dollars yearly in uncompensated care. The result: a "hidden health tax" of larger medical bills and higher premiums. The average family pays $1,000 in increased premiums as a result of uncompensated care. Congress demonstrated uninsured persons affect commerce.

We live with federal mandates, including paying taxes. Congress mandated that health care providers in emergency departments and ambulances provide emergency care to anyone in need, including the uninsured and underinsured. The law applies in every hospital accepting federal payments, creating unfunded burdens on responsible units of government, taxpayers and corporations.

Congress mandated Texans donate gas tax dollars to the rest of the states. The 2005 Federal Transportation law resulted in Alaska receiving $1,500 per capita in highway benefits while Texas received $36.

Sen. Kay Bailey Hutchison, R-Texas, complained, "No state has a worse rate of return from the federal highway trust fund, as Texas continues to pay far more in federal gasoline taxes than they get back."

Former U.S. rep. Tom Delay's spokesman explained: "Texas has lost $5 billion over the last 20 years because of formula problems."

Why has the attorney general never challenged that mandate or the absence of federal funding of a VA hospital south of San Antonio?

Abbott's service as attorney general is notable for his long-standing embrace of federally imposed mandates in his federally supported child support program. As attorney general, he mandates certain parents provide medical payments or coverage. In January 2008, he championed even broader legislation. His vision: "A private insurance company would contract with the state to cover a pool of children; a court could order parents to buy the private insurance based on their ability to pay; the court could order the insurance premiums withheld from a parent's paycheck. Parents who provide proof of insurance could opt out."

Abbott's 2009 law mandated that the office of the attorney general "develop and implement a statewide program to address the health care needs of children for whom health insurance is not available to either parent at reasonable cost. Federal law requires parents in the child support system to provide health coverage for their children."

Our statewide elected officials now attack the policy and fact findings of Congress. While possessing the right to dissent and vote, Abbott cannot replace decisions made by an elected Congress with his opinions. Otherwise, he should have challenged the 2005 pork-laden transportation bill benefiting Alaska and its then-powerful Sen. Ted Stevens. Texans were forced to donate without setting foot on a bridge to nowhere.

Attorney general is a massively powerful position, but the attorney general lacks the power to stop the enacted federal health care bill.

His lawsuit diverts attention and resources from the causes he should champion to protect Texans on valid legal theories. The attorney general's job is to understand the law and be the people's lawyer. He poorly serves the people by pursuing loser litigation.

Radnofsky, 2010 Democratic nominee for Texas attorney general, is a Houston lawyer.

Texas Attorney General Greg Abbott, who joined a multistate lawsuit challenging the new federal health care law this week, is taking heat from Democrats who say he backed a plan that required non-custodial parents to provide medical coverage for their children.

The health-care overhaul enacted this week requires most people to buy insurance or pay a fine. Texas and a dozen other states are challenging the new law in part on that requirement, which they argue is unconstitutional.

Abbott contends there's no hypocrisy on his part in trying to boost compliance with child-support health insurance laws. His office says the program he supported is quite different than the health care overhaul bill that President Barack Obama signed this week.

But Abbott's election opponent, Barbara Ann Radnofsky, the Democratic National Committee and other Democrats disagree.

"It's really a beautiful example of hypocrisy," Radnofsky said. "The attorney general was happily acceding to the federal requirements of mandating the noncustodial parent, usually the dad, to pay for health insurance or making a medical payment. ... The ironic thing is he was promoting very broad health care mandates."

At the center of the dispute is a new state law that created ChildLink, an alternative insurance program for parents of the 1.3 million children in the state's child support collection system, which is managed by the attorney general's office.

Federal and state laws since 1995 have required those parents to provide "medical support" for their children, Abbott spokesman Jerry Strickland said, and Abbott is simply carrying out existing law. Parents could provide insurance through their employer, through private coverage or through cash payments. ChildLink takes the place of those cash payments with a low-cost health insurance policy, Abbott has said.

"ChildLink does not establish a new mandate," Strickland said.

Asked whether Abbott was endorsing or facilitating an existing law that required certain parents to buy health coverage, Strickland said: "That's the law. It's no new mandate. And it's constitutional to do so."

But Abbott appeared before a conservative group in January 2008 and proposed making private sector health insurance available to uninsured children in Texas' child support system.

In a newspaper opinion piece he wrote in June 2009, as the Texas Legislature finished its session, he urged Republican Gov. Rick Perry to sign the ChildLink law. Abbott said it "does not impose new financial obligations on parents. Rather, it simply shifts their duty from an obligation to pay cash medical support to an obligation to pay health insurance premiums."

Perry signed the measure.

In the lawsuit filed by Texas and 12 others states in Florida on Tuesday challenging the new federal health care law, Abbott claims among other things that the federal law violates the Constitution by requiring citizens to buy health insurance and violates the 10th Amendment protection of states' rights.

Strickland said those legal claims don't apply to the child support health insurance law. For instance, he said, Texas can require drivers to purchase car insurance, but the federal government cannot.

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