After coming up 23 votes short in Tuesday’s runoff election and conceding to his grassroots conservative opponent, fourteen year incumbent State Rep. Wayne Smith of Baytown is now asking for a recount. Smith’s A

Smith lost his bid for reelection Tuesday in the runoff for the Republican nomination for state representative in District 128, which covers portions of Baytown, La Porte, Deer Park, and Pasadena. He was defeated by Briscoe Cain, a conservative attorney who serves as chief Texas legal counsel to the anti-abortion group Operation Rescue.

But now Smith is asking Harris County for a recount in hopes of eking out a win. As part of the process, Smith’s attorneys will attempt to exclude votes that went for Cain, and count provisional ballots that were voted in favor of Smith. The goal will be to find or flip enough votes to clear the 23-vote margin of defeat.

A recount in an open race is understandable. It is important voters feel confident that every vote is counted and the results are correct.

But for an incumbent who has served for over a decade, who chairs one of the lobby’s most favored committees, and who had every advantage in terms of institutional backing and funding, the move reeks of desperation.

Why would a person in Smith’s position, who has been rejected by his own voters in two elections, want so desperately to cling to power?

The answer is simple. Legislators in Austin are addicted to a lobby-funded lifestyle. For those legislators who sell out to the Austin cartel, each legislative session can be like a five-month all expenses paid vacation.

It is a great misconception that legislators are only paid a paltry sum of $7,200 per year. That’s simply their base salary. Legislators also receive credit towards a pension that is based on the six-figure salary of a state district judge. Additionally, they receive a per diem of $190 for each day of the legislative session. That works out to about $6,000 a month in pay during each legislative session.

But the real problem is the benefits legislators receive that are off the books. Legislators are allowed to receive up to three-fifths the amount of the per diem, or $114 per day, in food, beverage, and entertainment gifts from lobbyists before any lobbyist’s spending must be reported. And that limit is per-lobbyist, meaning that two lobbyists can buy a legislator like Wayne Smith a dinner worth $228 without ever having to report it in a way where Smith’s constituents can see. In the words of former TEC Chairman Jim Clancy, if you get four or five lobbyists together for a dinner, it can turn into a heck of a party.

Last session the Texas Senate unanimously passed legislation that would have lowered lobby gift limits. However the legislation was killed when Smith and other members of House leadership hijacked Gov. Abbott’s signature ethics legislation to turn it against Texas conservatives.


Following publication, Texas Scorecard was contacted by Harris County GOP Chairman Paul Simpson. Simpson suggests that this article might be read to impugn the Harris County GOP. The article can be clarified to be more precise and accurate. The first step requested by the Wayne Smith campaign is a recount, which will be conducted by Simpson and will involve recounting mail-in ballots. It is then likely the attorneys for the Smith campaign will, if the recount narrows the lead for Cain sufficiently, file an election challenge in court seeking to have pro-Cain votes thrown out. That part of the process, an election challenge, is technically not part of the recount process and would be litigated in court. Until then, all eyes are on Paul Simpson as he supervises the recount. We expect Simpson will conduct the recount in a fair and accurate way, and we will report on it as it transpires. We thank Mr. Simpson for his comments.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


5/28/24 Runoff Election Night in Texas!

- Beware of Politicians’ phony ‘reforms’. - Texas GOP passes new rule to close Primaries from Democrat influence. - Abraham George was elected as Chair of the Texas GOP.