As a small business owner in Bakersfield, I know firsthand how desperate the California small business community is to catch a break during the COVID-19 pandemic. This pandemic has already gone on longer than anyone expected, but instead of receiving help from our state leaders in Sacramento, we are left to suffer needlessly with no end in sight.

While COVID-19 has made the current business climate more difficult than any I have seen in my lifetime, there is a little-known factor that has made life far tougher than it should be for small businesses during these challenging times—lawsuit abuse. California is already known for its backwards court system, and COVID-19 is making matters worse. Meanwhile, state lawmakers continue to turn their backs and allow the consequences of ignoring the need for tort reform—business closures, accelerating unemployment, and even higher prices—to run amuck.

California has a serious problem on its hands. It is common knowledge that businesses have been leaving the state en masse, searching for other states that will have their backs and prevent unfair lawsuits from closing their doors. So how can we stop the bleeding? How can we reverse course and keep our status as home to more small businesses than anywhere else in the country?

First, we must accurately diagnose the problem. Most our state’s legal woes come in the form of open-ended liability, loopholes, or vague statutory language that allow trial lawyers to exploit the court system and score massive paydays. To make matters worse, the lack of significant COVID-19 liability protections for small businesses has forced many mom-and-pop shops into meritless settlements with trial lawyers looking to take advantage of the global pandemic.

Here are just a few examples.

The Americans with Disabilities Act (ADA) was designed to protect Californians with legitimate disabilities, but it is now being used by trial lawyers to sue small businesses who struggle to keep up with the expensive and ever-changing ADA guidelines.

Without the resources to put up a fight in court, often even when they are in the right, small businesses are forced to settle with attorneys. If they aren’t put out of businesses, these companies are instead forced to lay off employees or raise prices on consumers just to pad the pockets of greedy lawyers. And the proof is in the numbers. In 2020, California saw more ADA claims than any other state. How does this serve the disabled?

Republicans in the Texas Legislature face an uphill battle as they try to pass a bill exempting most of the state’s workforce from vaccine requirements enacted by their employers.

For one, Republican Gov. Greg Abbott asked them to take up the matter just this week, following up on an executive order he issued Monday. Now there are just six days left in the current special session.

On top of that, the legislation has been denounced by both Democrats, who view the vaccine rules as necessary for public health reasons, and some Republicans, who disagree with government interference in business decisions.

In another sign of trouble, Texans for Lawsuit Reform, an influential and well-funded group whose PAC tends to support conservatives, on Wednesday came out against one of the bills ordered up by Abbott, House Bill 155, which the Texas House State Affairs Committee considered Wednesday.

The bill would require employers to allow employees to receive an exemption from a vaccine requirement based on their acquired immunity after contracting COVID-19; because of a medical condition; or for “reasons of conscience, including a religious belief.”

The lawsuit reform group said in a statement that the bill would put employers in an “untenable position” and would expose them to “substantial liability” because it conflicts with federal guidance from the Biden administration requiring large companies to mandate vaccines. The group also has concerns about a provision that allows employees to sue employers who violate the law and recover court fees.

“When you begin to add more and more exceptions to the employment-at-will doctrine, it creates more and more litigation,” said Lee Parsley, general counsel for the group. “That’s what we’ve seen over the years: The exceptions to the doctrine have created litigation and richer lawyers.”

Glenn Hamer, president of Texas Association of Business, gave similar testimony at Wednesday’s hearing.

“Our big-time concern is the cause of action,” Hamer said. “That, in our view, needs to change.”

Abbott caught Texas by surprise with his executive order, issued after 5 p.m. on Monday. It was just two months ago that the governor declared in an executive order that he would bar local and state officials from requiring vaccines but would not meddle in private business decisions.

The bill’s sponsor, state Rep. Tom Oliverson, R-Cypress, who is a physician, said that while he is vaccinated, he believes it’s a personal decision.

“Unfortunately, with respect to the COVID pandemic, we’ve gotten away I think from that foundational medical principle of patient autonomy, and we were sort of trampling all over it,” Oliverson said. “Americans in general do not like being compelled and told what they must do, especially when they believe it violates or intrudes upon their specific rights as an individual.”

Neither Oliverson nor committee chair Rep. Chris Paddie expected the panel to rush the legislation through to passage.

“Maybe we get there, maybe we don’t, but that’s not going to trump — no pun intended — any sense of political expediency here to try to satisfy the politics versus good policy,” Paddie said.

At the end of a seven-hour hearing, Oliverson said he would revisit the legal liability provision, as well as clarify the definition of “reasons of conscience” and consult with health groups about carve-outs for places of work involving vulnerable, immunocompromised Texans. He planned to bring back a revised bill Thursday.

The Texas Senate State Affairs Committee will consider a similar but more sweeping bill on Thursday that would prohibit government entities, school districts and public and private institutions of higher education from requiring COVID-19 vaccines, in addition to forcing private employers to accept medical and conscience exemptions.

Rep. Phil King, R-Weatherford, raised concerns about putting businesses in a “difficult situation” if Texas adopts a new law that contradicts federal requirements.

“I’m just really struggling with this fact that we’re sitting here talking about what we may do, but at the same time, that’s not going to get our employers out from what the federal government is telling them to do, and that’s going to be a long drawn-out legal fight,” he said.

Among those who testified in favor of the bill was Regan DeMarines, legislative director for Texans for Vaccine Choice. DeMarines said Texans are suffering from having to choose between “their health and their livelihood” to keep their jobs.

“Every medical product has risk, and where there’s risk there must always be choice,” DeMarines said. “We hope that we can give citizens of Texas the ability to seek life, liberty and the pursuit of happiness without strings of a forced medical intervention attached to that freedom.”

Rep. Eddie Lucio III, D-Brownsville, who is a lawyer and also a franchise owner of Orangetheory Fitness clubs in the Rio Grande Valley, said his main concern is the bill’s effect on small businesses.

“Right now, every business — and you know my experience with small business — is struggling,” Lucio III said. “We don’t need to be eliminating anything in the toolbox to run their business to give them an opportunity to succeed and survive this very hard time.”

Dr. John Zerwas, a former Republican state representative and special adviser to Abbott, though he registered as neutral on the bill, said he agreed with Lucio’s evaluation.

“I think it’s the business of small business to determine what’s best for their clients or their customers and for the livelihood of the business that they’re in,” Zerwas said.

Zerwas also asked that lawmakers keep intact an existing law that requires hospitals to set policies that require employees and others in the facilities receive immunizations for certain “vaccine preventable diseases,” as determined by the CDC.

Rep. Richard Peña Raymond, D-Laredo, asked Zerwas if he believed more Texans would have died if the state had depended on herd immunity alone instead of making a concerted effort to get as many vaccinated as possible.

“Absolutely,” Zerwas said.

By Christopher Schweickert

Half of our country’s workforce is employed in small business. Unlike large corporations, some of which grew during the COVID-19 shutdowns, small businesses are particularly vulnerable. About one-quarter of them closed during the pandemic.

Here in California, over one-third closed. Their owners and employees are still working to pick up the pieces. Our lawmakers have offered Paycheck Protection Program loans and loosened certain regulations to help them make it through the pandemic, but there’s still a big gap — protection against unwarranted litigation.

This need is not new. Small businesses have been threatened by frivolous lawsuits for years, particularly in California. You can sue a small business over anything you want. It costs just $400 to file. That’s not necessarily a bad thing. In America, everyone should have their day in court.

But easy access also means easy abuse. Each year the American Tort Reform Foundation looks across the nation to identify the states where lawsuit abuse is most prevalent. Our litigious environment has landed California on one of the top 10 spots on their Judicial Hellholes list for several years. In 2020, we earned the No. 3 spot. According to the report, almost 60% of Californians “believe that lawmakers are not doing enough to combat lawsuit abuse.”

Whether it’s an employee suing their employer over a technical recordkeeping nitpick or a trial lawyer bringing a frivolous Americans with Disabilities Act lawsuit against a small business over one video on their website without captions, California’s courtrooms are plagued with unwarranted lawsuits. These lawsuits sap the life out of the small businesses who are unfortunate enough to be the latest targets.

Fighting off a lawsuit is expensive. Big corporations can afford big teams of lawyers, but defense costs can cripple a small business. And when this happens, employees lose their jobs, business owners lose their source of income and the community loses a local institution.

And yet, lawmakers continue inventing more ways for trial lawyers to make money at the expense of hardworking, honest citizens who are simply trying to run a safe and upstanding business. We’re losing some of our neighbors to the hope of a better life in Texas, Arizona, Washington and elsewhere.  In 2020, for the first time in 170 years since it was founded in 1850, California lost net population — down by 182,000.

Now add COVID-19 lawsuits, the latest tool in the trial attorneys’ toolbox. Teams of lawyers across the state have been gearing up to bring COVID-19-related lawsuits against California’s small businesses. It’s usually impossible to know exactly where someone catches the coronavirus, but that won’t stop claims that someone got it from a coworker or their server at the restaurant or their client at the office — and that it’s the owner’s fault.

Protecting the long-term health of small businesses is going to take more than payroll loans or pledges to “shop local.” California lawmakers need to take action to ensure the survival of the small-business community across the state.

Curbing COVID-19 lawsuit abuse will balance a deck tilted in favor of large corporations. By protecting small businesses from abusive lawsuits, we can calm a business environment paralyzed by fear, protect job creators from the ravages of litigation, stimulate our state economy and reduce income inequality.

As state lawmakers plan for rebuilding our communities and economy post-COVID, I urge them to consider how tort reform is part of the solution.

Christopher Schweickert is a Pleasant Hill attorney representing small business owners and trust/estate clients.

By David Yates

AUSTIN – On Monday, Gov. Greg Abbott signed the Pandemic Liability Protection Act into law. The Act went into effect immediately because Senate Bill 6 was passed by both chambers by supermajorities.

Authored by Sen. Kelly Hancock, SB 6 provides COVID-19 liability protections for health care providers, businesses, non-profits, religious institutions and schools that follow safety protocols.

Sen. Hancock has openly stated that the bill will not protect “bad actors.”

Texas now joins three-dozen other states that have granted healthcare workers and facilities limited liability protections when battling the COVID-19 outbreak.

Jon Opelt, executive director of the Texas Alliance for Patient Access, says that had the bill not become law, a surge in COVID-related lawsuits would have been expected.

“The Pandemic liability bill does not protect bad actors who are grossly negligent, engage in willful misconduct or are consciously indifferent to their patient’s welfare and safety,” Opelt said. “Instead, it protects all those who put their safety at risk when working in a healthcare setting if they make a good faith effort to provide appropriate medical care.”

Opelt says SB 6 does not preclude a COVID patient or their aggrieved family from filing a lawsuit.

“However, the bill aims to curtail misguided and unwarranted COVID-related lawsuits that stem from alleged misdiagnosis, improper treatment, inadequate staffing, and insufficient safety supplies,” Opelt said. “If the healthcare provider or facility has acted in good faith, they should have liability protection.”

By Jack Dutton

Concern over previous Johnson & Johnson lawsuits is helping drive vaccine alarmism and skepticism, Newsweek analysis has found. Since Johnson & Johnson’s one-shot vaccine was approved on February 27 for emergency use it has been critiqued for its perceived shortcomings in efficacy.

More than one in four people who do not intend to get vaccinated cited concerns about drug companies, according to a February 26 CBS/YouGov poll. But brand hesitancy has also reached those who do wish to be vaccinated.

Hundreds of social media posts have linked the vaccine with allegations the company’s talc could cause cancer. Those who spoke to Newsweek said they wanted to be inoculated but would refuse the Johnson & Johnson’s vaccine if offered, specifically because of the talc lawsuits, of which there have been more than 15,000.

Most of the suits allege that the company failed to warn customers that its talcum powder contained tiny amounts of asbestos, a cancer-causing material.

The drug-maker would not comment on its vaccine being linked to the suits, but said it adheres to the “highest bioethical standards and guidelines.”

The company has always defended its products. Several juries have reached verdicts against Johnson & Johnson, awarding $4.7 billion in damages to 22 women in 2018. But the company has prevailed in other cases and is appealing most it has lost.

Scientists say there is no reason to link the vaccine to earlier allegations against the company, and medical experts are urging people to take any available vaccine to help end the pandemic.

However, Kandice Ford from Louisville, Kentucky, told Newsweek she wouldn’t have the vaccine, mainly because of the controversy around the talcum powder.

Asked why, she said: “It is mainly because of the talc/asbestos lawsuits. I don’t trust them to be able to produce a safe vaccine. It also feels kind of rushed. We knew Moderna and Pfizer were working on vaccines for months and it seems like they [Johnson & Johnson] just popped up out of blue.

“Also the efficacy only being 66 percent raises concern for me as far as efficacy. I do want to be vaccinated. I would prefer Moderna over Pfizer. I am concerned about not having a choice. If I’m offered the J&J vaccine, I would refuse it.”

Like the other candidates, the Johnson & Johnson vaccine’s efficacy varies depending on how severe the COVID-19 is. The overall efficacy of a single shot was found to be 66.1 percent, but it has 85.4 percent efficacy against severe illness. Although requiring two shots, the Moderna and Pfizer candidates had overall efficacies of 94.1 and 95 percent, respectively.

In 1995, John Granic’s mother died of ovarian cancer. He said she used J&J talcum powder. Granic, from Ontario, Canada, said that he is skeptical about the Johnson & Johnson vaccine because of a 2018 investigation by Reuters saying the company had known about the existence of a carcinogen in its talc for years without raising the alarm.

“If that’s true then they had plenty of time to warn people, and I believe it to be true since J&J lost the class-action lawsuit,” he said.

“To this day I have no idea if [the] J&J my mother used contributed to her ovarian cancer or not at all and what the actual cause was. But even if she was still alive today, I would still be saying when a company keeps quiet for a good 20 years or so instead of warning people, [it] is a company I would NOT trust. I keep wondering what, if anything, are they hiding from the public now related to their vaccine?”

“As of now I have no plans to get the vaccine. I had not planned on getting it. And no I am not an anti-vaxxer. I have received vaccines before—when I was in school long ago—and had no issues whatsoever,” he added.

“If I change my mind it will be either Pfizer or AstraZeneca and definitely not J&J. Mostly just because Pfizer and AstraZeneca seem more trustworthy to me, and yes I have heard negative stories about them as well but I believe those two are a much better option than J&J.”

Others, who did not wish to be named in this report, raised similar concerns. When contacted by Newsweek, Johnson & Johnson did not comment on people who were skeptical about taking its COVID-19 vaccine over concerns about the company.

Commenting on the safety of its talc, a spokesperson said: “Johnson & Johnson understands the U.S. talc litigation has caused confusion and concern about the safety of talc powder and is committed to ensuring the facts about talc are understood. Johnson’s Baby Powder has been a trusted product for more than 100 years, and decades of independent scientific evaluations have repeatedly confirmed that Johnson’s Baby Powder does not cause cancer.

“We deeply sympathize with anyone suffering from cancer, which is why the facts are so important. We remain confident that our talc is safe, asbestos free, and does not cause cancer.”

Health experts are advising people that the vaccine is safe and has been developed in a thorough and transparent manner.

Susan R. Bailey, president of the American Medical Association, told Newsweek: “Each of the authorized COVID-19 vaccines has undergone rigorous, transparent development, testing and authorization, and all three vaccines are highly effective at preventing hospitalization and death from COVID-19.

“The newest vaccine—a single-shot variety with logistical advantages, including increased ability to store and administer at physician practices, over previously authorized vaccines—moves us closer to reducing the incidence of death and severe illness from COVID-19 by offering a third safe, effective vaccine that can be used across the country. When it’s your turn to get vaccinated, we urge you to take the first vaccine available to you.”

Dr. Peter Hotez, dean of the National School of Tropical Medicine and Professor of Pediatrics and Molecular Virology & Microbiology at Baylor College of Medicine, pointed out that in America much of the Johnson & Johnson vaccine was not being made in-house.

On March 2, the Biden administration announced a new partnership between pharmaceutical giant Merck and Johnson & Johnson, where the latter would help roll out the vaccine across America.

Asked whether people were right to be concerned about the Johnson & Johnson vaccine because of allegations around the company’s previous safety record, Hotez said: “Merck & Company is going to wider-produce a lot of the J&J vaccines in the U.S., so that [previous talc allegation] is not even a valid reason.

“It is a good vaccine. It wouldn’t surprise if downstream it winds up becoming a two-dose vaccine in the future. I think the level of antibodies are higher and might be more durable as a two-dose vaccine and they might do a booster with one of the variants of concern such as the South African one.”

Newsweek, in partnership with NewsGuard, is dedicated to providing accurate and verifiable vaccine and health information. With NewsGuard’s HealthGuard browser extension, users can verify if a website is a trustworthy source of health information. Visit the Newsweek VaxFacts website to learn more and to download the HealthGuard browser extension.

By Nathan L. Hecht

As we approach the first anniversary of pandemic-induced lockdowns, hundreds of thousands of Texans are still grappling with job loss, eviction, or domestic violence stemming from the stay-at-home orders, among other issues. Now, we have just endured one of the worst winter storms on record—plunging millions of Texans into frigid temperatures and darkness due to a days-long loss of power, along with loss of clean water.

The pandemic caused many in our communities to seek out civil legal assistance for the very first time to obtain benefits, home and safety. The added stresses of the winter storm effects mean even more Texans will need help as we work to recover from the costliest natural disaster in our state’s history.

Civil legal aid is an essential resource that ensures all Texans have equal access to the justice system. While legal aid providers are working tirelessly to provide these invaluable services, the need for assistance grows as the economic and health effects from COVID-19 continue and will increase on the heels of the winter storm.

Since March 2020, more than four million Texans filed jobless claims. From 2019 to 2020, TexasLawHelp.org, a statewide legal aid website that provides free legal information, saw an almost 1,500% increase in website traffic for unemployment help. Additionally, the web traffic for eviction help jumped by 185%, and the site saw an increase of 230% for people facing foreclosure.

The increased need for civil legal help became so great that the Texas Supreme Court helped create the Texas Eviction Diversion Program to assist tenants and landlords struggling with paying or collecting rent due to COVID-19. Yet the problem remains. Many Texans are still struggling as they try to decide what bills they are able to pay this month, and what ones they will have to let go past due. To compound the issue, Texans are now facing a crisis within a crisis as they are experiencing food and water insecurity and property loss from the winter storm—on top of the economic hardships inflected upon them by the pandemic.

Civil legal aid remains essential for Texans facing obstacles beyond unemployment, evictions, and damaged or destroyed property. Veterans who are denied their rightful benefits, elderly who have been refused access to proper medical care, and families that are continually on the verge of homelessness, all depend on the irreplaceable work of the legal aid programs.

To keep these essential organizations and programs running, more funding is critical, especially as a primary source of legal funding—the Interest on Lawyers’ Trust Accounts (IOLTA) program—declined significantly in 2020. In March 2020, just as COVID-19 began to wreak havoc on Texans, interest rates were cut unexpectedly, resulting in a 50% reduction in funds—or about $750,000 per month—in just 13 days.

Legal aid providers are a lifeline for so many Texans in good times, and much more so during a pandemic followed by a natural disaster. While the funding we have received has been critical in doing our job, the need remains as the wave of economic emergencies from the pandemic has yet to subside, and the fallout will be felt for years to come. It is because of this most unprecedented time in our history, the Texas Supreme Court is requesting additional funding because of the dire need for assistance.

All Texans deserve access to basic civil legal services. Helping Texans obtain assistance with civil legal needs is a bipartisan, good government issue. Families deserve help when facing eviction, veterans deserve access to benefits, children and mothers deserve safety from abusive situations, and Texans deserve assistance when their homes have been damaged due to a major disaster. On behalf of the Texas Supreme Court and our civil legal aid providers, I thank those who recognize and prioritize this right and ask that you remain committed in ensuring access to justice for all.

—

Nathan Hecht is chief justice of the Texas Supreme Court and a U.S. Navy veteran. 

By Matt Zdun

KILLEEN, Texas (KWTX) – Last week, Gov. Greg Abbott in his State of the State address said he wanted to shield Texas businesses that have remained open during the pandemic and followed state COVID-19 protocols from customer and employee lawsuits.

He made that one of his five emergency priorities this legislative session, and several groups that represent small businesses applauded the decision.

“If you have a business like a restaurant that has put forth a good faith, reasonable effort to comply with those safety guidelines, let’s protect them from having to defend themselves against a frivolous lawsuit,” said Kelsey Erickson Streufert, the vice president of government relations and advocacy at the Texas Restaurant Association.

So far, no state lawmaker has filed a bill with these protections, but state Sen. Kelly Hancock, R-North Richland Hills, is expected to file one soon, said Streufert.

“Various lawyers and experts and stakeholders have been working on the language for months,” she said.

However, even with the protections, Killeen restaurant owner Josie McKinney says small businesses across the state are still in a “scary place.”

“To have somebody go and test positive for COVID and then publicly announce, ‘The only place I’ve been in weeks is this place’ is very harmful to a business owner,” McKinney said.

She said that even with liability protections, it could still be the customer’s word versus hers.

“Unless you can go back and document every minute of every day that a customer’s in the building, it’s going to be really hard to say, ‘Were they following the right practices?’ if the customer says they weren’t,” McKinney said.

She also said that, even if it is harder to sue small businesses, these businesses could still face harmful damage to their reputations.

The liability protections for businesses are expected only to apply to those businesses that have complied with state and local COVID-19 safety protocols.

They are also expected to extend to religious organizations, nonprofits and healthcare organizations.

Copyright 2021 KWTX. All rights reserved.

By Caroline Spiezio

(Reuters) – Plaintiff-side law firms have funneled millions of dollars into advertisements aimed at attracting clients impacted by COVID-19, with Morgan & Morgan as the top-spender, according to a Tuesday report from the American Tort Reform Association.

The report said 176,053 television ads offering legal services or soliciting legal claims mentioning COVID-19 aired in the United States March through December 2020, costing an estimated $34.4 million “based on publicly-available ad rate information and industry surveys.”

Morgan & Morgan spent the most by far, according to ATRA, airing about 70,000 ads at a cost of $10.5 million from March, when COVID-19 sparked U.S. economic shutdowns, through December.

The plaintiff-side giant’s website advertises services for a slew of pandemic-related matters, including business owners suing insurers for coverage, employees who contracted COVID-19 at work suing their employer for compensation and families of people who died from COVID-19 suing nursing homes for neglect.

Morgan & Morgan founder John Morgan and another representative for the firm did not immediately respond to requests for comment on Tuesday.

Other top spenders identified by ATRA were consumer finance company J.G. Wentworth Co and Chicago-based debt relief agency the Semrad Law Firm. Both spent less than $5 million, according to the report. Representatives for those groups did not respond to requests for comment.

Tiger Joyce, the president of ATRA, whose members include business and medical professionals often at odds with plaintiff-side lawyers, said Tuesday in a statement that the ad-spending numbers show the need for state legislatures to enact liability protections.

“As the COVID-19 pandemic reached the United States, entrepreneurial personal injury lawyers saw yet another opportunity to profit off of a national crisis,” the report said.

Southern U.S. states were the target for most TV ads for legal services mentioning COVID-19 that ran from March to December. More than half aired in Florida, Alabama, Tennessee, Georgia or in the Northern state of Ohio, according to ATRA.

Nearly 20% of ads aired in Florida, Morgan & Morgan’s home state.

By Robert T. Garrett and James Barragán

AUSTIN — Their party survived the 2020 election. Now, Gov. Greg Abbott and Lt. Gov. Dan Patrick are trying to outrun the coronavirus pandemic and set themselves up for reelection to third terms next year.

But first, they must manage a session of the Republican-controlled Texas Legislature beginning Tuesday. It’ll be held amid the most dire public health threat in at least a century.

For Abbott, who may have presidential ambitions, and Patrick, who runs the Senate, the uncertainty over how lawmakers even can perform their most intensely social of jobs — huddling and sizing up one another in the capital city for 140 days — creates opportunity.

Amid rising COVID-19 infections and hospitalizations, it’s clear the session won’t be business as usual at the Texas Capitol, which reopened to the public Monday.

How many topics the legislators can tackle is unclear. So are whether Texas Republicans can insulate themselves against intraparty recriminations expected after President Donald Trump’s challenge of the presidential election, and which “red meat” issues Abbott and Patrick will seize during the session as fodder for 2022 GOP primary voters.

University of Houston political scientist Brandon Rottinghaus summed up 2021 in three words: “Significant political flux.”

“We’ve got a new House speaker. There are a sizable number of new members,” he explained. “There’s a tight budget, a Democrat in the White House and a governor who might run for president. Add redistricting on top of all of that, and you’ve got a recipe for a very messy session.”

Still, Abbott and Patrick can set the table for their reelection campaigns with a display of strong leadership. Whether they can submerge lingering frictions between themselves from the past three sessions will be closely watched.

So will the ability of Abbott and Patrick to play well with the House’s new leader, presumptive Speaker Dade Phelan, a fourth-term Republican from Beaumont.

In 2019, Abbott and outgoing Speaker Dennis Bonnen, R-Angleton, often formed a united front against Patrick and the Senate in disputes over whether to give merit pay raises to teachers or across-the-board hikes, and what share of new school funding had to go to compensation.

Also, Abbott badly wanted to make a play for a higher state sales tax, with the increased revenue paying for deeper school property tax cuts. The tax swap failed. Still, the “Big 3” were able to forge compromises on school finance and property taxes — and avoid an overtime session.

Throughout Abbott’s six-year tenure as governor, he and GOP leaders have avoided special sessions. That’s been a point of pride for Abbott, a former judge and attorney general who never was in the Legislature — and whose deal-making chops were questioned after the 2015 session, his first.

UH’s Rottinghaus said this year has many similarities to 2011, when the rise of the tea party fueled enmity within the GOP — then-Speaker Joe Straus was the right’s main target. That year, Republicans infuriated Democrats by ramming through voter ID and a sonogram bill on abortion.

This year, Rottinghaus said, each of the Big 3 faces some intraparty and institutional constraints that may make the session’s work product a tad less conservative than GOP hard-liners want.

“Dan Patrick is going to likely have to change the Senate rules to be able to get what he wants. And even at that, he still needs to keep Republicans in line — which is not a done deal,” Rottinghaus said.

“Dade Phelan … certainly has a majority but it’s a tentative majority, because on key issues, you might see Republicans jump ship and not back a more conservative approach, because they’re worried about blowback from national trends that make the Republicans look less inclined to deal with bread-and-butter issues.

“And Greg Abbott, given the national attention to his political ascendancy, he’s got to think carefully about his position in the party,” Rottinghaus said. “He can’t be too close to Trump but you can’t be too far away from Trump. So I think all the Big 3 are dealing with these internal divides that make it uncertain how to proceed.”

Coronavirus limitations

The coronavirus outbreak has clouded the prospects for how Texans will be able to participate in the Legislature’s deliberations. It’s also likely to limit the size and ambitiousness of lawmakers’ 2021 agenda.

Patrick and House Administration Committee Chairman Charlie Geren, R-Fort Worth, have announced safety protocols for Tuesday’s opening day ceremonies. Public access to the Capitol will be sharply curtailed. Legislators’ ability to bring their family members for a traditionally festive occasion will be limited. Tests and social distancing will be required — as will, in the House for Day One at least, masks.

Beyond Tuesday, though, each chamber has yet to finalize its own parliamentary rules for the session. Those and perhaps other housekeeping measures are expected to reflect public health precautions, such as making members of the public sign up days in advance to testify on bills and be tested for the coronavirus before gaining admittance to the Capitol.

Each of the 131 lawmakers, plus Abbott and Patrick, will have discretion to impose requirements on employees of and visitors to their individual offices.

Budget front and center

The biggest issue is likely to be balancing the state budget without higher taxes, a perennial GOP goal.

This year, that will be complicated by an economic crisis caused by the pandemic. On Monday, Comptroller Glenn Hegar will estimate state revenues for the next two years, eight months — which, under the state Constitution’s 1940s “pay as you go” provision, puts a ceiling on what lawmakers can spend.

Though it’s hard to predict which other issues will spark hot debate, a few are predictable. For the most part, lawmakers didn’t hold their usual interim committee hearings last year, denying the public and special interest groups a view of their passions and interests.

At its convention last summer, the state GOP adopted “election integrity” as its top legislative priority. It called for requiring verification of citizenship when voters register as well as increasing penalties for election violations.

While Democrats will try to make voting easier, arguing that the pandemic illustrated a need to widen excuses for seeking mail ballots, Republicans may try to crack down on the kind of drive-through and drop-off mail voting that was so successful in Houston last fall.

Here’s a primer on what to look for on other issues:

State budget

What six months ago looked to be shaping up as a historically awful task — writing a two-year state budget, the only must-pass bill of any session — now just looks bad.

In July, Hegar said the coronavirus pandemic and an oil slump probably would erase a $2.9 billion ending balance he had expected in the general revenue fund for the current two-year cycle, instead producing a $4.6 billion shortfall.

That was a big swing of nearly $8 billion, and GOP leaders ordered cuts to spending that eliminated 4,000 positions, many of them vacant, saving about $1 billion. By fall, though, dread of the coming budget-writing task eased some, as Texans ramped up online purchases and federal aid poured in — large chunks of which the state hoarded for itself, rather than pass on to schools and localities.

The Texas economy could rebound sooner than originally expected. However, with the pandemic again raging, it’s hard to tell.

To maintain current services, the state needs about $5 billion more than taxes currently generate. Democrats and liberal activists want to tap a lot of the state’s $8.8 billion “rainy day” fund. Some also want the Legislature to raise gasoline taxes, undo recent cuts to the business franchise tax and reduce the state’s future IOU to schools by letting “Chapter 313” tax abatements enjoyed by corporations and other major companies expire. The breaks, dubbed a “colossal giveaway” by a liberal think tank, will wane after 2022 unless lawmakers renew them.

But GOP leaders and some business groups are likely to resist revenue-generating ideas. They’ll instead urge lawmakers to avoid tax hikes, cut programs and use accounting tricks. That was their approach, after seizing total control of the Legislature in the 2003 session, when they faced a shortfall of between $10 billion and $15 billion, and again in 2011, when they had to close a $27 billion gap.

Education

The pandemic has slammed the financial health of school districts and all levels of higher education, though for varying reasons.

Last session, lawmakers boosted classroom spending in public schools by a few billion dollars, added $2 billion for educator pay raises and poured $5 billion into lowering property taxes over the two-year cycle. School leaders are eager not to lose any ground, as costs for online instruction and COVID-19 precautions have soared.

Also, the state bases funding on how many students show up for class each day. The Texas Education Agency gave districts a hold-harmless period where funding remained steady based on previous years’ enrollment. But for most, that covered only the fall semester. And the hold-harmless period didn’t include a “compensatory” weight in districts’ funding that helps educate students in poverty.

And expect lots of discussion of how well state budget writers treat community colleges, four-year universities, student financial aid programs and health sciences centers. As enrollment dipped during the virus outbreak, many schools are losing both tuition and state formula funding.

Limits to pandemic disaster declarations

Abbott’s handling of the COVID-19 crisis will generate some heat. The Republican governor will try to keep two brushfires from merging into something he can’t get legislative allies to smother.

Coming from Abbott’s right will be pushes in both chambers to restrict a governor’s powers to shutter businesses and churches during a pandemic — at least, for extended periods.

A proposed constitutional amendment would require a governor, who now can just renew his own disaster declarations every 30 days, to call a special session of the Legislature to re-up a proclamation or order.

House author and Rep. Steve Toth, R-The Woodlands, said the measure “restores the balance of power that existed before the Texas Disaster Act of 1975 was exploited during COVID-19 to give the executive branch unprecedented power over small businesses.”

Abbott can’t veto a constitutional amendment, which requires a two-thirds vote in each chamber — which means he’ll need Democrats’ help to defeat such a measure. But Democrats may be smarting over Abbott’s aggressive denial of shutdown orders by county judges such as Dallas’ Clay Jenkins and mayors such as Austin’s Steve Adler. An amalgam of libertarian Republicans and Democrats seeking to gig Abbott may make him spend political capital he’d rather hoard.

Police brutality

On police brutality, the University of Houston’s Rottinghaus said “the political pressure to act is immense, shaped by these dramatic images of police brutality” last year.

Already, the Texas Legislative Black Caucus has filed the George Floyd Act, commemorating the Black man killed by Minneapolis police during an arrest. Among other things, it would ban use of chokeholds statewide and narrow use-of-force rules for police officers.

The Combined Law Enforcement Associations of Texas, one of two powerful groups advocating for peace officers, won’t try to protect chokeholds, its leader said last summer.

But it’s unclear whether GOP lawmakers and Abbott will go much further — for instance, chipping away at “qualified immunity,” which shields officers from civil suits. Nor is it clear the Legislature will pass the Botham Jean Act, named for the Dallas man fatally shot in his apartment by an off-duty officer. It deals with topics such as body cameras and the castle doctrine.

Limits on local cuts to police budgets

Abbott, supported by Patrick and the outgoing Bonnen, has proposed several measures to deter local governments from cutting their law enforcement budgets — which the governor and many conservatives call “defunding the police,” though Democrats and advocates of criminal-justice changes say the term’s misleading.

One Abbott-backed proposal would fold the Austin Police Department into the state Department of Public Safety. Others would deny annexation or ratchet down property taxes if a locality reduced law enforcement budgets. City and county officials are expected to object, as the GOP-led push to limit local control in Democrat-controlled cities continues.

Taxpayer paid lobbying ban

The so-called taxpayer-funded lobbying ban was a top priority for Patrick and other conservatives in 2019, but was defeated in the House by a coalition of Democrats and Republicans who said their districts would be negatively affected. The ban would stop local governments from using municipal funds to pay lobbyists to advocate for them in Austin.

Republican supporters of the ban say it would prevent cities and counties from advocating against their own citizens on issues such as property tax revenue caps. But opponents say it muzzles local elected officials who were elected to represent their communities, who have to live with state decisions and can’t spend 140 days every other year defending those communities’ interests in Austin.

The issue has added weight because it was the determining factor for the scandal that brought down Bonnen for targeting fellow House Republicans. In a secret recording of the meeting, Rep. Dustin Burrows of Lubbock, a Bonnen ally, said the issue will be a priority this year.

Limits on lawsuits over COVID-19, trucking accidents

Last spring, Texans for Lawsuit Reform said it wanted state lawmakers to provide health care providers and other employers and businesses with a liability shield against lawsuits by people who contract COVID-19.

The group, which over the past quarter-century has successfully pushed the Legislature to curb personal-injury suits, did not spell out the details. No bills have been prefiled.

“Texas law should provide that a business that makes a good faith effort to comply with state and federal safety protocols should not be liable for a customer or employee contracting COVID-19,” Texans for Lawsuit Reform spokeswoman Lucy Nashed said last week.

In recent months, groups seeking “tort reform,” the Texas Trucking Association and other industries also have decried trial lawyers’ increasing, TV ad-fueled pursuit of high-dollar awards for victims in truckers’ highway accidents. Legislation on that front also is expected, though none has surfaced.

“It’s hard for us to see what we’re facing; we need to see specific bills,” responded Alex Winslow, spokesman for the Texas Trial Lawyers Association, when asked if lawsuit limits will be a marquee issue this year. “There are lots of existing protections for businesses in the law.”

Continuing greater use of telemedicine

For years, health experts have talked about the potential for telemedicine to fix many of modern medicine’s challenges. And for years, the technology has failed to acquire the omnipresence needed to make it work.

But during COVID-19 lockdowns, the state and federal government granted waivers that made telemedicine more accessible. One of the main drivers of that increased accessibility was a guarantee by health plans that they would pay the same reimbursements for telemedicine appointments as they would for in-person appointments.

The policy change helped subsidize providers when they would otherwise not be seeing patients and allowed patients to use their regular physicians safely during the pandemic and normalize the practice.

But the Texas Association of Health Plans argues that once the pandemic is over, pay parity should no longer be required unless it was already part of a negotiated contract.

The issue will probably be a battle between patient and physician convenience and the impact on the financial models that health plans have in place.

Marijuana

Since passage in 2015 of the Compassionate Use Act, which allowed the use of medicinal marijuana to treat patients with intractable epilepsy, advocates have pushed for further legalization.

In 2019, the law was expanded to allow marijuana for patients with multiple sclerosis, Parkinson’s disease, ALS, terminal cancer, autism and many kinds of seizure disorders.

This year, lawmakers have already filed plans to expand the use to patients suffering from post-traumatic stress disorder. Lawmakers also have filed bills to decriminalize the possession of marijuana for personal use and to legalize the possession of cannabis for people over age 21 in amounts of up to 2.5 ounces or 15 grams of concentrate.

Proponents of the bills, mostly Democrats, have said marijuana legalization could bring in revenue to help fill the state’s budget hole.

Last session, the House passed a bill to decriminalize possession of small amounts of marijuana. But Patrick said the bill was “dead in the Texas Senate.” His opposition likely will be the main challenge for weed advocates — and he has not given any indication that his position has changed.

Redistricting

Every 10 years, state legislatures have to redraw their electoral maps to conform to population changes. This year’s redistricting will be further complicated by delays of population counting under the Trump administration. It is unclear when the Legislature will receive population numbers from the U.S. Census Bureau.

Because of delays, though, it is likely the Legislature will have to return to Austin after its required 140-day biennial session.

With Republican control of the Legislature secured, the maps are expected to be drawn to consolidate GOP electoral dominance over the next decade. That may mean redrawing districts to benefit Republicans instead of Democrats.

But Democrats will be watching carefully for any impropriety. Texas’ electoral maps have been challenged in court every decade since the 1970s.

By W.J. Kennedy

Some prominent business defense lawyers, reacting to a recent Wall Street Journal (WSJ) report about the relatively paltry number of Covid-19 exposure lawsuits to date, say we are merely at the starting gate for virus-related injury claims.

“One has to keep in mind that the lawsuit numbers reflect a time when many large entertainment, sports, food, schools, offices, and other venues are closed or have significantly reduced their operations,” Cary Silverman, partner at Shook, Hardy & Bacon, told Legal Newsline in an email. “This limits the potential for an outbreak that plaintiffs’ lawyers are most likely to take advantage of, even when the business responsibly did its best to follow public health guidance.”

He added that the relatively low number of cases, outside contracts, insurance and employment affected by the pandemic, offers little reassurance for businesses as they hope to open in 2021.

“There have been hundreds of exposure claims against nursing homes, and scores against meat processing, shipping companies, and others in addition to the early cruise ship cases – which illustrates the chance of lawsuits, particularly when there are people living, working, or visiting in confined spaces,” he said.

The WSJ reported that plaintiffs’ lawyers are finding it more difficult than expected to hold businesses accountable for Covid infections.

“Holding a business liable for a Covid-19 injury or death requires more than just evidence that it exposed someone to the disease or failed to take property precautions,” the report said.

In addition, plaintiffs bear the burden of proving causation – that they were infected because a particular business failed to take the necessary precautions.

The sentiment that a business’s customers are the ones responsible for their infections could change, warned Shook’s Victor Schwartz, who co-chairs the firm’s Public Policy Practice Group,

“Juries (when they return) will not necessarily be sympathetic to plaintiffs who incurred a Covid risk in non-mandatory employment situations,” Schwartz wrote in an email. “The organized plaintiffs’ bar is likely to fuel stories to counter that belief.”

The WSJ report did note that a rush of lawsuits could be filed closer to the end of the statute of limitations for Covid injury suits – two to five years in general.

Curt Schroder, Executive Director, PA Coalition for Civil Justice Reform, noting that the pandemic has only been with us for less than a year, agreed that it is too early to “arrive at conclusions about the number of lawsuits.”

“Cases take time to develop and it is not surprising that there have been few cases filed to date,” he said.

But he noted that “plaintiffs’ law firms are staffing up in preparation for bringing vaccine related lawsuits. The very cure for the pandemic will end up being a significant area of litigation if plaintiffs’ attorneys have their way.”