As legislative clock ticks, Texas newspaper issues are very much in limbo

More than half the 2017 legislative session is in the rear-view mirror, and things are getting tense in Austin. Money is short and tempers are getting shorter…even between members of the same party. 
Stress is noticeable along the fault lines between social conservatives and the more moderate business-first members of the ruling Republican party. Divisive issues such as the bathroom bill, sanctuary cities and property tax relief dominate the headlines and the hallway conversations, and what effect they may have on other legislation — including newspaper issues — is anyone’s guess. 

Analysis by Donnis Baggett, TPA Executive Vice President

The only thing the Texas Constitution legally requires the Legislature to do is pass a budget, and that will be far from easy. State revenue is soft because of the deep and long-term slump in the oil and gas industry, yet there’s political and legal pressure to increase funding for troubled essentials such as public schools, child protective services, mental health care and state pension funds. 
The general bill-filing deadline was March 10, but at this writing  lawmakers continue to file “local” bills on matters such as utility districts and the like. The current total of House and Senate bills is just under 6,500, which is the second-highest total in more than a quarter century. The highest was 2009, when 7,419 bills were filed during the entire session. With that many bills in play in a 140-day session, as many as two-thirds will be left on the cutting-room floor.
Within this ocean of bills, TPA has identified 95 pieces of legislation that touch on public notice in newspapers in some fashion or another. That’s almost half of the 200+ bills that TPA is tracking this session. Of those 95 bills, only a handful seek to eliminate newspaper notices. But these bills aren’t generating much discussion this time around, thanks to last year’s interim committee report by a joint House-Senate committee on public notices. 
The joint committee affirmed the importance of newspaper notices and said lawmakers should consider adding methods of providing public notice, not eliminating them.
Not all bills involving public notice are negative for our industry. This session we’ve been pleased to see that 35 bills actually ADD newspaper notice requirements and another 54 are benign, mentioning newspaper notice but not harming it. So more than 90 percent of the bills mentioning public notice in newspapers are actually positive or neutral for our industry.  Unless we take every negative bill seriously, however, we run the risk of losing notices, which would be bad not only for newspapers, but for Texas.
We stress to lawmakers and anyone else who’ll listen that public notice isn’t public unless you put it somewhere it can be seen by someone who isn’t actively searching for it. Newspapers do that very effectively, and the result is accountability. Happily, none of these bills that would harm to newspaper notices have been set for hearing as of this writing. 
• HB 1530 by Rep. Paul Workman, R-Austin, would allow governmental entities to place required notices in media other than a newspaper…including the entity’s own website. There would be no requirement for third-party accountability, an essential element to newspaper notices.
• HB 1541 by Matt Shaheen, R-Plano, would allow governmental entities to place their notices on their own websites or on social media if they choose, with no newspaper required. Notice by Snapchat, anyone?
• HB 3141 by Rep. Cindy Burkett, R-Sunnyvale, would allow municipal notices to be mailed in customers’ utility bills. While this might be a nice addition to public notice, it would be insufficient by itself. Some citizens pay their bills automatically with a pre-authorized bank draft, and may not even open their emailed statement. Some renters have a “utilities included” lease, and they never receive a utility bill in any form. And even homeowners who do receive a mailed bill often toss out the inserts that come with the statement.
• HB 1149 by Rep. Sarah Davis, R-Houston, is the same bill she filed last session seeking to eliminate newspaper notices listing polling places before an election. This is a bill that Harris County elections officials have pushed for years, claiming the list is a waste of tax money.
• HB 2567 by Rep. Ernest Bailes, R-Shepherd, involves notice of pesticides required to be used in a particular area to prevent a harmful outbreak of a forest insect pest. The bill would eliminate general published notice in a local newspaper in favor of individual notice to each property owner directly affected. Of course landowners with an infestation should be individually notified, but we believe neighboring landowners and the general public also need to know about a large-scale application of a pesticide in their neck of the woods.
There are good bills of interest to newspapers, of course. Here are some important measures we’re supporting:
• SB 407 by Sen. Kirk Watson, D-Austin, and its companion, HB 792 by Rep. Giovanni Capriglione, R-Southlake, aim to repair the damage done by the 2015 Texas Supreme Court ruling in the infamous Boeing case. The court ruled that businesses and governmental entities can avoid releasing information about their contracts even after the deals are consummated. They can simply claim that releasing the information might put them at a competitive disadvantage at some point in the future. SB 407 has been passed the Senate and is awaiting action by the House. It has faced opposition from some business interests, so the measure’s prospects in the House are not a foregone conclusion.
• SB 408 by Watson and its companion, HB 793 by Capriglione, aim to undo another bad Supreme Court ruling. In the Greater Houston Partnership case, the high court ignored decades of precedent and ruled that the non-profit, which is paid by the City of Houston to perform economic development work, is not subject to the public information act.  The result: the public has no way to know how its tax money is being spent by the Greater Houston Partnership. SB 408 passed the Senate in late March. It has faced opposition from business and non-profit interests, and so far the House has not scheduled a hearing.
• HB 2710 by Rep. Todd Hunter, R-Corpus Christi, would restore access to dates of birth in governmental records. A 3rd Court of Appeals ruling — which the Texas Supreme Court refused to consider on appeal — made much of that information off limits. 
• HB 2670 by Hunter would put teeth in the law to close the infamous “custodial loophole” that has enabled officials who use their private electronic devices for public business to ignore laws that clearly state that the documents public. The bill establishes a process for the attorney general to sue scofflaw officials and force them to comply.
• SB 1347 by Sen. Watson and HB 2328 by Rep. Eddie Lucio III, D-Brownsville, would establish a process for a governmental entity to expedite a public information request. By allowing entities to redact information that has already been excepted from disclosure, it promises to lessen the backlog of routine requests for an attorney general’s opinion and get information to requestors within five days. Requestors who believe information they receive has been redacted inappropriately can appeal to the attorney general if they wish.
One bad bill that we’re watching like a hawk is HB 3811 by Rep. J.M. Lozano, R-Kingsville.  If this bill were to become law, it would gut the anti-SLAPP law that we fought so hard to pass four years ago. SLAPP stands for Strategic Lawsuits Against Public Participation, i.e., suits filed by plaintiffs with deep pockets to hush up whistleblowers and the media on stories they don’t like. The anti-SLAPP law allows a judge to throw out one of these frivolous suits before it gets to the expensive discovery phase, and it has saved countless thousands of dollars in legal fees for newspapers and public-spirited sources who expose wrongdoing. Trial lawyers have been working to repeal the law ever since it passed, and HB 3811 is their latest attempt. So far, it has not been set for a committee hearing. We’re hoping it never gets one.
We’ve enjoyed a good track record for our TPA legislative program over the years. We hope to keep that record intact this session, but we can succeed only if you help. If we ask you to contact your legislator, please say yes. We’ll make it easy for you, providing contact information and talking points if you need them.
TPA is a rarity among trade associations in Austin. We don’t make campaign contributions. Our political currency is not money, but the credibility and influence of our members. Our newspapers matter a great deal in Texas communities, and TPA members’ opinions matter to the lawmakers those communities send to Austin.
We should never be shy about telling them what we think.