The 86th session of the Texas Legislature was the usual biennial adventure in high-stakes political poker and downright sneakiness. But in the midst of it all, lawmakers did something we hoped they’d do in 2017 — pass major transparency reform bills to address a series of destructive appeals court rulings.
There’s a long list of good news, but let’s get the bad news out of the way first.
Analysis by Donnis Baggett, Texas Press Association
Newspapers took a torpedo from a Memorial Day weekend sneak attack on public notice in SB 2, the high-profile property tax reform bill.
Legislative leaders were well aware that a firestorm would erupt if they operated under normal transparency rules, so they avoided the messiness of public hearings, newspaper editorials and grassroots involvement with a shrewd parliamentary maneuver.
Late Friday afternoon on Memorial Day weekend, the conference committee negotiating the differences between the House and Senate versions of SB 2 eliminated newspaper notice of final tax rates for community colleges, emergency service districts and hospital districts. That change had not been in either the House or Senate versions, so the next day the House and Senate passed a resolution to go “outside the bounds” of the versions they’d sent to conference and consider the conference version.
Each chamber then took an up-or-down vote on the conference committee version, allowing no further amendments. SB 2 sailed through both chambers in less than an hour.
If elimination of that particular type of notice sounds familiar, it’s because in 2013 lawmakers voted to eliminate newspaper notice of final tax rates set by cities and counties.
Republican legislators — even those close to their hometown papers — dared not vote against a much-ballyhooed tax reform bill that was one of the GOP’s highest priorities. They knew leadership could punish them by supporting their primary opponents in 2020. Voting no just wasn’t a palatable option for a Republican holding an office that pays only $7,200 a year but offers a nice retirement package if you can keep getting re-elected.
Now they will have some explaining to do back home. Texas publishers will want to visit with them about the importance of newspaper notice. Here's a link to a chart showing how House members voted. Some might even note the irony that the title of SB 2 is “The Texas Property Tax Reform and Transparency Act of 2019,” yet without newspaper notice, SB 2 makes final tax rates less transparent than they are today.
That bit of bad news aside, there’s much to celebrate as the dust clears in Austin.
Over the last four years we’ve bemoaned Texas Supreme Court decisions that devastated access to government contracts with businesses and non-profits. We’ve been frustrated by a 3rd Court of Appeals ruling denying access to dates of birth in public records. We’ve been appalled at a Court of Criminal Appeals ruling that suddenly and unbelievably legalized walking quorums. And we’ve been outraged by public officials using a legal loophole to hide public documents on their private devices.
Other than dates of birth, those issues were addressed in bills that passed this session. Gov. Greg Abbott is expected to sign them, forcing state and local governments to operate in the sunshine once again. It’s been a long time coming.
On the members-only Billwatch page of the TPA website, www.texaspress.com, we have a complete list of the 220 bills we’ve followed this year. Here are the highlights of the ones that passed:
• SB 943/HB 2189, by Sen. Kirk Watson, D-Austin, and Rep. Giovanni Capriglione, R-Southlake, will repair damage inflicted by the Texas Supreme Court’s Boeing and Greater Houston Partnership rulings. The court decisions allow governments and businesses to seal information about their contracts, keeping taxpayers from seeing how their money is spent. SB 943 passed both chambers and awaits the governor’s signature. He has publicly expressed support for the measure.
• HB 81 by Rep. Terry Canales, D-Edinburg, commonly known as “Boeing Lite,” will require governmental entities to disclose information about contracts for concerts and other public events funded by taxpayer dollars. The bill passed the House and Senate easily and already has been signed into law by the governor.
• SB 944/HB 2191 by Sen. Watson and Rep. Capriglione will close the so-called “custodian loophole” that some officials use to hide public information on their private devices. The law has said for years that a government document is defined as public based on its content — not on the device that holds it. But until SB 944, there was no legal mechanism to compel officials to release the public documents stored on their private devices. SB 944 passed both the Senate and the House and awaits the governor’s signature.
• SB 1640/HB 3402 by Sen. Watson and Rep. Dade Phelan, R-Beaumont, will repair damage done by a Texas Court of Criminal Appeals ruling that the Open Meetings Act is “unconstitutionally vague.” The high court struck down the OMA’s prohibition of a “walking quorum,” a series of private meetings between small groups of elected officials to reach consensus on issues rather than do so in public. SB 1640 clarified the definition of a walking quorum. The bill passed both chambers and awaits the governor’s signature.
• HB 1655/SB 1318 by Rep. Todd Hunter, R-Corpus Christi, and Sen. Nathan Johnson, D-Dallas, would have restored access to dates of birth in records under the Texas Public Information Act. This became problematic after the 3rd Court of Appeals in Austin ruled DOB’s were off limits. DOBs are essential to differentiate between people with common names. HB 1655 passed the House. It was approved in committee in the Senate, but was never brought up for a vote on the Senate calendar.
Another TPA legislative priority was protecting Texas’ Anti-SLAPP law.
As originally written, HB 2730/SB 2162, a reform bill by Rep. Jeff Leach, R-Plano, and freshman Sen. Angela Paxton, R-McKinney, would have gutted the law, which protects defendants with modest means from being bled to death financially by meritless nuisance suits. Leach listened to our objections and amended the bill to address our concerns. As a result, TPA supported the amended version of HB 2730, which features robust First Amendment protections. The governor has signed the bill into law.
No legislative session would be complete without sweeping bills to eliminate or diminish public notices in newspapers. HB 2808 by Rep. Matt Shaheen, R-Plano, would have allowed governmental entities to meet notice requirements by posting notices on their government websites, social media, school newspapers, utility bills, neighborhood association newsletters or a combination thereof. Publishing notices in newspapers would be an option, not a requirement. TPA strongly opposed HB 2808 when it was heard in the House County Affairs Committee, and the bill never got out of committee. We expect to see it again in two years, however.
During the 2019 session TPA’s Legislative Advisory Committee tracked 220 bills relating to transparency, public notices and other topics important to newspapers. We took positions on 157 of those 220 bills, supporting 135 and opposing 22.
Only 21 of the 157 bills passed, which isn’t unusual considering legislators had only five months to consider 7,324 bills — the second-most bills in history. (Lawmakers passed 459 of those 7,324 bills, by the way.)
Of the 21 TPA-relevant bills that passed, we supported 19 and opposed two. In other words, the final score was TPA 19, others 2. And that doesn’t take into account the dozens of bills that TPA opposed which died in committee.
Our success this session is primarily due to the engagement of our members. Your staff deeply appreciates members who make sure their representatives know what their hometown paper expects of them.
Now, believe it or not, it’s time to prepare for 2021. Relationships with legislators are built in the year and a half between sessions, which lawmakers refer to as “the interim.” It’s worth noting that legislators will be running for re-election during the interim, and they’ll be making the rounds to woo the newspapers in their districts. Please keep us in the loop on the conversations you have with them.
Thank you for everything you do to make Texas stronger every day.