Pandemic. Recession. Political strife: The Texas Legislature’s toughest 2021 challenges
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.”
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:
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.
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.
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.
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.
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.