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After another member is accused of sexual misconduct, the Texas Senate takes a wait-and-see approach

A recent allegation of sexual misconduct against a state senator highlights the ambiguity that remains at the Capitol over how Texas lawmakers respond to such cases.

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For the third time in the last year, a sitting state senator is facing an allegation of sexual misconduct.

And for the third time in the last year, the Senate has had the same response: Do nothing — at least at first.

The circumstances surrounding the latest allegation are thorny: They involve a Republican state senator, Charles Schwertner, who is accused of texting a sexually explicit image and message to a graduate student. Reportedly, Schwertner and the student met at an event on the University of Texas at Austin campus — and not around the Capitol, as was the case in previous allegations against other senators — but the lewd messages that Schwertner allegedly sent came after the student indicated she was interested in working at the Capitol.

In the week since the Austin American-Statesman first reported that UT-Austin was investigating the allegation, Senate leaders have indicated they won’t touch the allegation, which Schwertner has firmly denied, until that inquiry wraps up.

“The Texas Senate is awaiting the conclusion of the investigation and expects a full report on this matter,” Lt. Gov. Dan Patrick, a Republican who presides over the chamber, said in a statement.

It’s a wait-and-see approach that comes about four months after the Senate took steps to bolster the processes in place for addressing claims of sexual misconduct. Despite those changes and a stated commitment to zero tolerance when it comes to sexual misconduct, the allegation against Schwertner has further highlighted the complexity — and seeming hesitance by lawmakers to act — that still looms over the Capitol when it comes to responding to such wrongdoing by elected officials, who ultimately answer to voters back home.

“Many employers are concerned about their employees' behavior outside the workplace,” said Malinda Gaul, president of the Texas Employment Lawyers Association. “But he’s not an employee. So basically you wonder why the Legislature wouldn’t feel obligated to look at it since we’re talking about a senator and constituent.”

The allegation against Schwertner was largely met by silence. In a Texas Tribune survey of the chamber’s 30 other senators:

  • Six senators declined to comment.

  • 17 did not respond to a request for comment.

  • Of the seven that did respond — a combination of Republicans and Democrats — most generally acknowledged the seriousness of the situation but offered little beyond echoing Patrick’s sentiment about waiting on the conclusion of the UT-Austin investigation.

The response is similar to last year, when The Daily Beast in December reported on anonymous allegations of sexual assault by Democratic senators Borris Miles and Carlos Uresti, which they both denied. None of the other 29 senators called for resignations in that case, according to a Texas Observer survey of lawmakers. Senate leaders would later lean on the anonymity of the allegations as a reason for the lack of any internal investigation.

Miles has kept his seat, and will not face re-election until 2020. Uresti resigned in June after he was convicted on unrelated charges that included fraud and money laundering.

Only state Sen. Sylvia Garcia, a Democrat from Houston who is a favorite to win a congressional seat in November and leave the Senate soon after, called for an independent investigation of the Schwertner matter.

“I will repeat the call I made in December and ask the Texas Senate to investigate any allegations of sexual harassment, discrimination, abuse or bullying by Senators or Senate staff,” Garcia said in a statement.

State Sen. José Rodríguez, D-El Paso, went as far as saying it would be “premature” for the Senate to look into the issue because no complaint had been filed to chamber leaders, “which under our rules is the prerequisite for an investigation.”

The Senate’s anti-sexual harassment policy doesn’t appear to explicitly cover this situation — between a student and a senator at an on-campus event. Though the policy indicates that the Senate’s sexual harassment prohibition may apply outside the workplace, it is largely focused on interactions between senators, staffers and individuals, such as lobbyists and reporters, whose work requires them to regularly visit the Capitol.

And Senate leaders who have said they’ll await the results of the UT-Austin investigation have offered virtually no insight into what the Senate would do with the results of that investigation. Neither Patrick nor state Sen. Lois Kolkhorst, the Brenham Republican who oversaw the revisions to the chamber’s policy, responded to questions about what the Senate’s next steps could be or whether the chamber could initiate its own investigation into wrongdoing related to sexual harassment without a formal complaint.

Nothing precludes an investigation or inquiry of a senator without a formal complaint, but there appears to be little policy guidance for lawmakers at the Capitol on the “exact response here,” said state Rep. Donna Howard, an Austin Democrat who co-chairs a House workgroup that is working on recommendations to address sexual harassment at the Capitol beyond the revisions members made to the chamber’s policy in December.

“That being said, we've already had three senators now mentioned by the media as having engaged in inappropriate behavior, and as far as I know no kind of inquiry has been done for any of them,” Howard said. “I would suggest it’s time that we start taking action.”

The Texas Senate’s response stands in stark contrast to those at the U.S. Capitol, where chamber-led investigations and at least five resignations have followed a recent flurry of sexual misconduct allegations.

Though many have criticized the congressional policies — which currently call for mediation and counseling before reporting sexual harassment and allows lawmakers to use taxpayer funds to pay any legal settlements — the chambers’ ethics committees have begun investigations on their own accord immediately after news reports landed, without waiting for a formal complaint.

In Schwertner’s case, where another investigation is already ongoing, the Texas Senate’s strategy of waiting for UT-Austin to conclude its review is the “right way to go,” said Chris Kaiser, director of public policy and general counsel for the Texas Association Against Sexual Assault.

But he emphasized that grading the Senate’s response to these sorts of situations would ultimately depend on the chamber’s ability to follow through on consistently applying its internal policies and being transparent about “conclusions reached about whether to initiate investigations.”

“For us, the touchstone from the very beginning with all the focus on writing a good policy is making sure we don’t lose sight of the importance that actions speak louder than words,” Kaiser said.

In the last year, lawmakers at the Texas Capitol, where one former staffer said sexual harassment can be “as common as a hello,” have revised outdated policies that largely left victims of sexual harassment to fend for themselves. The allegations against Schwertner are the first to be publicly reported since.

At a minimum, the allegations against Schwertner will likely inform the House’s recommendations for how to best address sexual harassment by lawmakers.

“We are more mindful of this now that this has occurred,” said Howard. “We were already looking at the expectation of behavior that is not necessarily at the Capitol but in your official capacity as an elected official. But even if it goes beyond that, where do you draw the line?”

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/10/02/texas-senate-will-wait-and-see-charles-schwertner-sexual-misconduct-al/.

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