Legislative Update - Jan. 15, 2021

The ULLCO Sentinel

Labor Priorities: The 140-day regular session of the 87th Texas Legislature began Tuesday. Texas labor’s Fair Shot Agenda, adjusted for the pandemic, will be published later this month. Texas AFL-CIO President Rick Levy and Secretary-Treasurer Montserrat Garibay provided context:

“Our state is in a major crisis. Tens of thousands of people in Texas have died from COVID-19 and the decisions of lawmakers in 2021 will involve nothing less than life and death. Millions are suffering from virus fallout, personally and economically. Essential workers in Texas — a broader category from what many might have imagined before the pandemic — deserve every consideration to become safer and more secure.”

“Texas families have suffered and need solid ground to stand on. We will fight not just for improvements in workplaces but for racial and economic justice in our lives. The tools for success are in place. Legislators are essential workers, too, and have had months to process a still-unfolding tragedy and prepare.”

“…We call on the 87th Texas Legislature to act in bipartisan fashion to ease suffering and build for better days ahead.”

House Rules: Representatives changed some procedures for health and safety reasons without stretching the usual lawmaking process beyond recognition. Members need not test for COVID-19, but will be required to wear masks on the floor (except when speaking to the chamber) and will have a way to cast votes on their secure laptops from the gallery or adjacent rooms, rather than on the buttons at their desks.

The public will not have a remote option for testifying unless invited. Committee chairs may, at their discretion, expand that to take written testimony remotely. A draft proposal that would have made it almost pointless to “drop cards” — make known one’s position on a piece of legislation during committee hearings without testifying — was eliminated. Such cards will remain part of the committee record.

House members also discarded an idea for a new “Consensus Calendar” that would have launched bills deemed by the Calendars Committee to have no apparent opposition on a rocket ship to passage. The House retains the Local and Consent Calendar, also a short-cut process, though bills on that calendar are sometimes victimized late in the session for reasons having little to do with substance.

Senate Rules: Senators voted to make the GOP majority stronger.

On a purely partisan 18-13 vote, the Republican senators revised a key rule on how many votes it takes to begin debate on bills during the 140-day legislative session. The number had been 19; now, it’s 18, officially known as the “5/9 rule.” (For the first 60 days, the Texas Constitution mandates a four-fifths vote to take up legislation.)

What changed? Sen. Roland Gutierrez, D-San Antonio, flipped a seat on Nov. 3, reducing Republican ranks by one.

Practical effect: despite electoral gains in the last two cycles, Democrats will still not have the power to block the few purely partisan bills that surface. Those bills tend to carry an outsized helping of controversy. For example, the Senate’s effort to take away the freedom of public employees to voluntarily pay union dues through payroll deduction came up for debate without a vote to spare. Same with the bill to short-circuit removal of Confederate and other monuments. The bills passed the Senate only because the traditional two-thirds threshold had been lowered.

Senators were unanimous on remaining rules. If you wish to testify or take a formal position on a Senate bill, you will need to show up in person. Exception: regional hearings on redistricting — the redrawing of political boundaries — will take remote testimony. The rules were made temporary and will be reviewed at the 60-day mark in light of the pandemic.

Some committees changed. Ahead of an expected major push to rein in local government power, the Intergovernmental Relations Committee becomes the Local Government Committee; the Jurisprudence Committee returns, signaling a move to limit business liability further; the Property Tax Committee is no more; and the Agriculture Committee will be folded into a Water, Agriculture and Rural Affairs panel.

On Friday, Lt. Gov. Dan Patrick announced committee assignments, reducing the number of Democrats chairing committees to one (Sen. John Whitmire, D-Houston, the dean of the Senate, overseeing Criminal Justice) and the number of Black or Latino chairs to zero. Lots of Democratic vice chairmanships. 

Side note: It is passing strange to consider the Senate membership in ninths. Five-ninths of 31 is 17.222…, with the 2’s running on into infinity. But there is a way it makes perfect sense. Some GOP partisans have argued no bill should pass the Senate if it does not have a majority of the Republican caucus in support. It takes 10 of 18 members to gain that majority, which reduces to the fraction 5/9. More than one Democrat pointed up during debate that the precedents set by Republicans during Lt. Gov. Dan Patrick’s terms could lead to a further reduction of the threshold to a simple majority of 16 if Democrats ever narrowly gain the majority.

COVID-19 at the Capitol: If you are hoping for strict observance of Centers for Disease Control guidelines for avoiding COVID-19 at the Texas Capitol, you might notice some holes. The Texas Senate is requiring negative COVID-19 tests (provided free at the East entrance) each day for members, along with anyone wishing to testify, visit the Senate in the gallery or accept an invitation to the floor. Proof of vaccination can replace the daily test. But the large majority of Senators themselves were not wearing masks on the floor under a rule that requires masking except when Senators are alone at their desks or at the podium.

The House is requiring members to wear masks on the floor but has not mandated COVID-19 testing for visitors and guests (nor has the Governor’s office). Bottom line: the mix of Capitol occupants does not appear to be fully vetted for the contagion. If the building is crowded, wearing a mask is in your control; keeping six-foot perimeters is decidedly not.

On Friday, the Texas Tribune reported State Rep. Joe Deshotel, D-Beaumont, tested positive for COVID-19, forcing other lawmakers into quarantine. We wish all of them good health and, where necessary, a speedy recovery.

State Budget: Bad news, based on the official estimate by Comptroller Glenn Hegar, is the Texas budget shortfall is about $1 billion in the current budget that ends next August and the Legislature will have $6.5 billion less to spend when it writes the 2022-23 budget. Good news, in the pandemic it could have been so much worse. In the end, the one indispensable bill of any session is all about priorities and key variables, including whether federal help is on the way and whether use of some of the Rainy Day Fund is again in play. The Legislature is no stranger to austerity budgets, and all who favor strong funding for education, health care and infrastructure, including the labor movement, will watch closely.

Democrats: The Texas AFL-CIO congratulated the following representatives who were elected Monday to lead the House Democratic caucus: Rep. Chris Turner, reelect Chair; Rep. Toni Rose, 1st Vice Chair; Rep. Oscar Longoria, 2nd Vice Chair; and Rep. Lina Ortega, Treasurer.

“The Texas labor movement will continue to work with all members of the Texas Legislature for a Fair Shot agenda that enables working families to get ahead and for racial and economic justice,” Texas AFL-CIO President Rick Levy and Secretary-Treasurer Montserrat Garibay said. “Reps. Turner, Rose, Longoria and Ortega understand that the Legislature must set partisanship aside to make workers a leading priority as our state seeks to ease the pain of the pandemic and build a better future.”

Republicans: As expected, House Speaker Dade Phelan, R-Beaumont, won election to his post 143-2, with the only “no” votes coming from right-wing members of his own party. Phelan delivered a message of unity and bipartisanship.

Of substantive interest, Phelan suggested the pandemic may spur deregulation where appropriate. “Public and higher education shifted curricula online, telemedicine made health care accessible in every corner or the state, and 51 years after putting a man on the moon, we figured out how to sell margaritas to go,” he said. “The Texas Legislature should embrace these regulatory changes, learn from them and eliminate unnecessary, burdensome regulations from our statutes once and for all.”

What’s Next: For safety’s sake, the House and Senate have each adjourned until Tuesday, Jan. 26. House members are submitting committee requests, with a Jan. 22 deadline.

Amid reports of potential political violence in capitals around the nation, the Department of Public Safety announced the Texas Capitol will be closed to the public from Saturday through Wednesday, the day of President-elect Joe Biden’s inauguration.

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The Basics: What are some major differences between how the Texas House and Texas Senate operate?

The House has 150 members; the Senate, 31. During House debates, representatives face strict limits on speaking time. In the Senate, senators can go in-depth as warranted, with no formal time limit.

In the House, a bill must pass through both a Committee and the Calendars Committee to be scheduled for floor debate, but no additional preliminary votes to allow debate are taken. In the Senate, a bill must pass through only one Committee, but must also survive a preliminary vote in which a super-majority of senators — now five-ninths — decides whether to consider the bill.

The House Speaker — this session, Rep. Dade Phelan, R-Beaumont, chosen Tuesday — is elected by members from among the 150 state representatives. The Speaker appoints committees and has great influence on the flow of legislation, but the order of business adheres to the formal calendar. The Lieutenant Governor, who presides over the Senate, is elected statewide. Working with senators, he also appoints committees and has a great deal of discretion with regard to when bills are taken up. Both positions wield power derived mainly from the rules of operation approved by lawmakers.

Under House rules, members may use their seniority to command placement on most committees. In the Senate, committee placement is ultimately within the discretion of the Lieutenant Governor.

The House Speaker may vote on any measure, though in practice that happens rarely. The Lieutenant Governor may vote to break ties.

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Filed Bills

ULLCO committees have begun consideration of filed bills. ULLCO has not taken a position on this sampling of bills of interest to working people.

Local Government Powers — Bills have been filed both to take away and to restore power to cities, counties and other local entities.

Taking away local powers: HB 540 by Patterson (prohibit requiring labor peace agreements as condition of getting contract); HB 543 by White (prohibit local laws restricting use of working animals, e.g., elephants in a circus); HB 638 by Krause (prohibit reducing budgets for fire, law enforcement or EMS, see also HB 741 by Allison requiring an election to reduce a First Responder budge); HB 749 by Middleton and SB 234 by Hall (deny use of local public funds to lobby Legislature); and HB 1026 by Middleton (would make Secretary of State the voter registrar of every county).

On the restoration side, HB 176 by Zwiener would return the ability of local governments to prohibit certain containers for solid waste management purposes. As noted last week, HB 224 by Ortega would restore the ability of local governments to raise the minimum wage locally.

Disaster Powers — The entire state has remained under a state disaster declaration since early in the pandemic, and Gov. Greg Abbott has wielded significant powers that ordinarily would be left to the Legislature. Only Abbott can call the Legislature into special session and lawmakers have not had a chance to revise laws until this week.

Among bills addressing the balance of power:

—HB 26 by Swanson (remove governor’s power to restrict sales of firearms in disaster, the broader HJR 40 and HB 629 by White also restricts the governor’s power over alcohol and other matters);

— HB 525 by Shaheen and the somewhat different SB 251 by Paxton (barring shutdowns of or restrictions on religious organizations in disasters);

—HB 655 by Raymond (study disaster alert system);

—HB 665 by Landgraf (limit duration of state agency emergency rules);

— HB 888 by Patterson (regulation of contact tracing);

—HB 899 by Middleton (no stripping of licenses for failing to follow disaster rules);

—HB 905 by Krause (reduce governor’s and local presiding officers’ salaries during certain disasters);

— HB 1137 by Cain (limit business taxes and fees during disasters);

—HJR 42 by Toth and the somewhat different HJR 47 by Krause (require Governor to convene Legislature in prolonged disasters);

—HJR 46 and HB 892 by Frank, along with SJR 19 and SB 267 by Kolkhorst (right to designated visitors in nursing homes during disasters);

—HJR 60 by Anchia and the similar HJR 65 by Vasut and SJR 20 by Johnson (require disaster special session on petition of two-thirds members of each chamber);

—SB 79 by Miles (notice to state when schoolchildren test positive); and

—SJR 23 and SB 329 by Paxton (tax credits for businesses required to close).