Overview of the 80th Regular Session »

“A session like no other”:  this has become a hallway comment about the Regular Session of the 80th Legislature. While it is true that each session assumes its own character as the old Members exit and the new ones are sworn in, and of course each has its own share of hot issues; yet, the 80th Session does stand out from the ordinary in many ways.

The 80th Session took an unusual turn even before it opened, when in November a public challenge was mounted against a sitting Speaker of the House, the first time in over 40 years this had occurred.   Speaker Tom Craddick ultimately held on to the Speaker’s gavel for a third term in what was regarded as a “close vote”. Nevertheless, the dissatisfaction that led to the Speaker challenge remained a constant undertone throughout the Session. For example, the House voted to override the Speaker’s ruling on a procedural matter, a rarity that long-time observers could not recall happening.  This small “victory” seemed to embolden the insurgents, for next came a controversy over the routine setting of bills for the Local and Consent Calendar.  Some Members suggested that the L & C Calendar appeared to be “short” of bills by Members who were not “on the Speaker’s team”.   The L & C calendar being such an important vehicle for all Members (and since under House Rules it only takes one Member to knock a bill off the L & C Calendar),  this issue became a galvanizing point even for some of the Speaker’s loyalists, resulting in intermittent turmoil and interruption of the Calendar in the closing days of the session. By ‘Sine Die’, five Members had announced their candidacy for Speaker in the 81st Session, the Parliamentarian and her assistant had resigned and been replaced by two former House members, both longtime allies of the Speaker.  Armed with the Rules  interpretations of his new Parliamentarians, the Speaker asserted, and prevailed,  that he alone held the absolute power to determine when and if to recognize a Member to speak on the House floor.   Nonetheless, while tensions and emotions ran high throughout the closing week-end of the Session, most of the important legislation was acted upon by ‘sine die’.      

The Senate was not without its own contretemps as well.  Lt. Governor Dewhurst’s press to enact Jessica’s Law, a bill requiring stricter punishment of repeat child sex offenders, and his push for a vote to take up and consider a Voters’ Identification bill both proved divisive in the usually collegial Senate.  Resistance from prosecutors and victim’s rights groups made negotiations on Jessica’s Law quite contentious, though ultimately a resolution was reached and Jesssica’s Law was passed overwhelmingly.    The Voter ID legislation died without a vote in the Senate, but not without rousing such acrimony that a bipartisan delegation of Senators was dispatched to meet with the Lt. Governor over his handling of it.

At the start of the session Governor Perry issued an unprecedented Executive Order mandating that all girls entering the sixth grade receive the Human Papillomavirus vaccination. During his State of the State Address, the Governor recommended sale of the State Lottery to private interests and raised a few other bold initiatives.  Comptroller Combs provided the Legislature the good news that the state would have an estimated $14 billion in new revenue over FY 2006-2007.  Legislative leaders, holding to a conservative path in order to pay for the property tax reductions approved in the 3rd Called Session of the 79th Legislature in spring 2006 and still have some of the revenue available for the 2009 session, nevertheless had to work their way through much consternation, debate and competing proposals about how much of the estimated surplus should be spent, refunded or saved.  In the context of leadership style issues and the unprecedented surplus, the House and Senate had difficulty finding consensus.   The Governor’s insistence on formatting some of higher education’s funding so that it would be exposed to his line item veto stalled the entire appropriations bill in the closing days of the Session.  Then, his veto of 55 pieces of legislation, some deemed surprising and controversial,  ensured that the 80th Regular Session would not go down as a quiet, business-as- usual session.   

Overview of Issues

This overview is furnished to summarize and provide a record of some of the major issues of 80th Regular Session; special attention is given to issues of importance to The Texas A&M University System and its members. Given the statewide reach of programs, research, and services delivered by the System and its members, the range of legislative issues affecting the System and its institutions is broad. In addition, some issues which were not resolved this session will be noted since they remain priorities to constituencies, legislators or leaders and are therefore likely to be encountered as issues in the future. 

Higher Education Issues

In addition to the undivided attention always devoted to the appropriations bill, several higher education policy issues were considered by the 80th Legislature.  A brief overview of some key legislation is provided below; further details relating to individual bills may be found within the body of this report.

Top 10%:  Adopted in 1997, Texas’ “Top 10%” law has been a hotly debated provision in recent sessions.  The law provides automatic admission to any public university in Texas to any high school students who graduate in the top 10 percent of their class.  For this the third session proposals have been offered to relax its provisions so that universities could use multiple factors, in addition to high school rank, in determining the composition of their prospective freshmen classes. Again this session over 15 bills, including HB 1186 by Representative Geanie Morrison, HB 78 by Representative Dan Branch, and SB 101 by Senator Florence Shapiro, were filed to adjust the status quo in some form. SB 101, as amended, became the primary vehicle for change and would have allowed a university to opt into a program requiring 50 percent of its freshman class to be accepted strictly on the class rank of Texas High School students. An additional 10 percent of its freshman class would be chosen from the pool of top 10 percent students based on a variety of factors. Negotiated components of the bill would have required additional financial aid for top 10 percent students, a sunset of the new option in six years, and a guarantee that any students not granted admission to their first choice institution within a university system would be automatically admitted to their second choice university within that same system.  The closely negotiated agreement allowed a bill modifying the Top 10% Law to pass the Senate for the first time. In the House, the bill was passed as amended, thus requiring a conference committee to resolve differences between the two chambers. On the last evening of the session for the legislature to take action, the conference committee report passed the Senate by a vote of 28-2 but was rejected by the House 66-75, with a coalition of inner city and rural members combining to defeat the bill. While modification of the Top 10% rule remains a priority for some institutions, in the aftermath of this session’s inaction, it is unclear what changes will be acceptable to both chambers.  Nevertheless, all indications are that this is likely to remain an issue yet again for the 81st Legislative Session.

Tuition Deregulation:  Efforts in the 79th Legislative Session to set limits on university Boards of Regents to set tuition, specifically in the Senate, created expectations that such efforts would be intensified this session. More than twenty legislative bills were filed dealing with the issue of tuition deregulation. Ultimately, none was successful and the discretion to set tuition rates remains in the hands of the Boards of Regents. However for a second session, the divergence of views between the two chambers regarding the authority to set tuition seemed to harden. The Senate continues to hold serious reservations about the original decision to deregulate tuition and desires to limit, if not eliminate, granting such  discretion to the university Boards, while the House, at least under the Speaker Craddick’s leadership, remains committed to the concept of using this tool as a primary method of providing additional funding for higher education. This issue remains one which will likely be subject to continued consideration and debate in future sessions. 

Tuition Revenue Bonds:  Under the “alternating session” pattern which had informally become customary since 1991, the 80th Session was not expected to be a tuition revenue bond (TRB) session.  Moreover, the Legislature in the 3rd Called Session of April 2006 had authorized, but not funded, over $1 billion of TRBs.   The TRB issue for the 80th was focused on whether the debt service required for the previous authorization would be fully funded by the 80th Legislature. To the relief of all involved, and as legislative leaders had promised in spring 2006, the funding needed to service the debt for the newly authorized TRBs was fully funded in the base bill as filed, thereby meeting one of the key legislative goals of the System, as well as for all of higher education. 

Competitive Knowledge FundThe Competitive Knowledge Fund was created to encourage the development and expansion of research and instructional excellence of select universities which had demonstrated success in competitive research of at least $50 million per year.   The Fund was created by transferring $66 million of existing funds from the four participating universities and adding $27 million in new funding.  Based on the $50 million criterion, Texas A&M University, the University of Texas, the University of Houston and Texas Tech University are the only four universities sharing in the fund at this time.  

Texas Southern University:  After initially calling for a state appointed conservator with extraordinary powers to make sweeping changes to address previously identified problems, Governor Perry accepted a less radical reorganization plan to restructure the institution’s operations. The nine sitting members of the Board of Regents resigned by request during the session; however, a plan to replace them with a smaller, reform-minded board during this time of crisis was rejected by House members.  In addition, a rider to the appropriations bill was proposed that would have provided for stricter oversight; however, while acknowledging the need, the legislature felt that it deserved the dignity of legislation rather than a rider. The Governor replaced five board members immediately, including three positions with individuals who had served on a study group which had prepared extensive findings and recommendations relating to future operations of TSU. The Governor has indicated he will fill the remaining four seats on the Board of Regents, but has not done so at this writing.

HPV Mandatory Vaccination

In January, Governor Perry issued an Executive Order requiring Texas girls be vaccinated against a cause of cervical cancer, Human Papillomavirus, before entering sixth grade. The Order proved to be controversial on all sides.  Conservatives in and out of the Legislature argued vaccination could encourage promiscuity and usurp the rights and responsibilities of parents. To some legislators, the mandate was seen as perhaps usurping powers that should be exercised by the legislative branch. An informal ruling of Attorney General Greg Abbott, requested by legislators, held the Governor’s order had no legal weight. Representative Dennis Bonnen filed and passed HB 1098 which overturned the HPV Executive Order and also prohibited state agencies from requiring the vaccine for school enrollment. Passed early enough in the session to leave time for lawmakers to overturn a veto, the Governor allowed the bill to become law without his signature.

Texas Youth Commission

Allegations of staff misconduct at the Texas Youth Commission facility in Peyote contained in a Texas Ranger investigation but not pursued by the local district attorney triggered one of the seminal issues of the 80th Session.  As investigations into the allegations sharpened, the TYC scandal reached crisis proportions. Concerns were raised over the operation of TYC, inmate abuse by staff, insufficient and inappropriate staffing, and internal extensions of sentences. Under increasing public scrutiny of the escalating allegations, the Senate, in a rare evening session, passed an emergency resolution calling for the Legislative Audit Committee to meet and recommend the appointment of a conservator by the Governor. Four days later, the Legislative Audit Committee met and recommended placing TYC under conservatorship or, in a departure from the Senate’s recommendation, having the state auditor’s office write a detailed rehabilitation plan. Rather than appoint a conservator, the Governor chose to appoint Texas A&M University System deputy general counsel Jay Kimbrough to act as a special master in developing a plan to rehabilitate the damaged agency. Kimbrough’s performance was thorough, praised and sufficiently progressive to allow the Legislature to focus on pursuing legislation designed to provide a more permanent solution.

SB 103, by Senator Juan “Chuy” Hinojosa and sponsored by Representative Jerry Madden, represented a complete overhaul of TYC seeking to drastically reduce the agency’s size while bolstering the employee to youth ratio to ensure the physical and sexual abuse scandal of the past year is never repeated. The major provisions of the legislation moved misdemeanor offenders out of TYC and back to their communities, required the hiring of 800 more guards to meet a 12 to 1 employee to youth ratio and requires the release of youth inmates at age 19. Additional provisions created strong new investigative procedures to examine claims of abuse, a family “Bill of Rights” on visitation, contacts with inmates and how to file grievances and provide for an ombudsman to act as an advocate for the inmates. Finally, the bill creates a new agency leadership structure with the Governor appointing a commissioner, subject to Senate confirmation, to serve for two years with a citizen board resuming oversight in 2009.  The bill was signed by the Governor.

Water Planning

SB 3, by Senator Kip Averitt, was the state’s first major water planning bill in a decade and contained many provisions from a failed effort to accomplish similar goals last session. Setting guidelines for water conservation and for protecting the ecology of the state’s rivers, lakes, bays and estuaries, it acknowledged the necessity of and allows for regional decisions on reservoir sites rather than naming the sites in the legislation. This compromise resolved a major controversy over the inclusion of the proposed Marvin Nichols and Fastrill reservoirs for Dallas’ use.  Subjected to criticism from rural law makers that its water use was excessive, the reservoirs were removed from the bill until last minute negotiations and intervention by Governor Perry and Lt. Governor Dewhurst led to their restoration.  However, the compromise provided that cities and water districts must begin spending money on those reservoirs by 2015 or risk losing their regional designation.

SB 3, as passed, also contained much of the same water conservation and environmental flow language contained in HBs 2 and 3 by Representative Robert Puente who sponsored SB 3 in the House. The bill intends to address the environmental flow issue without alienating those land owners who have existing permits or who might be seeking future water permits. It acknowledges the importance of a standard for environmental flows in each basin; creates a basin by basin approach to be guided by a scientific advisory committee and permitted by TCEQ; and allows environmental flows to be limited in times of droughts.

Transportation

Toll Roads:  The 78th Legislature passed major transportation legislation creating the “Trans-Texas Corridor,” a $184 billion plan to construct four-thousand plus miles of toll ways, railways and utility lines across the state. Using a public-private partnership to oversee its development, the “TTC” has generated wide scrutiny, criticism and debate as it moves forward. As the 80th Session opened, there was intense discussion of what should be done to “reign in” perceived abuses, missteps or questionable motivations of private partners as well as the Texas Department of Transportation.   Numerous pieces of legislation addressing differing concerns were filed and the debate began.

HB 1892 by Representative Wayne Smith was amended in the House to include a two-year moratorium on toll projects to be completed with private equity comprehensive development agreements.  Additional amendments gave the North Texas Tollway Authority right of first refusal on the SH 121 & SH 161 projects, an exemption from the moratorium for Loop 9 in Dallas and US 281 in San Antonio. The bill passed out of the House and then the Senate, with changes which were later agreed to by the House, sending the bill to the Governor’s desk. After asserting HB 1892 as passed would risk billions of dollars in federal funding, Governor Perry made it clear that issues such as primacy, local toll authorities’ right of first refusal and strict review terms for CDAs were more problematic than the concept of a two year moratorium and that, absent a compromise on such issues in a subsequent bill, he would veto HB 1892 and call a special session on the moratorium and other transportation issues.

In an attempt to resolve the issues at hand and avoid summertime in Austin, Senator Tommy Williams, Senate sponsor of HB 1892, allowed his companion bill, SB 792, to be amended to create a vehicle to address the Governor’s concerns. The bill was passed by the Senate and moved to the House where it passed on a vote of 143-2 with minimal amendments but requiring a conference committee. On the day after SB 792 passed the House, Governor Perry vetoed HB 1892. The conferees reached an agreement on a bill satisfying the concerns of the Governor by omitting the much discussed “Amendment 13” designed to prevent possible attempts to circumvent the moratorium by simply calling the public-private partnerships by a different name – facilities agreements. After placing a number of clarifications in the House record, the House passed the Conference report and sent the bill to the Governor’s desk. Governor Perry signed the bill on June 11, 2007.

Traffic Light Cameras: There has been much debate over whether cities have the right to issue civil citations through the use of unmanned cameras posted at traffic lights. Many bills were filed during the 80th Session addressing this growing red-light camera trend in cities around the state. Two measures, HB 1623 and SB 1119, were passed to clarify the rights of cities. These bills, both sponsored by Representative Larry Phillips and Senator John Carona, place some restrictions on camera use and the revenues collected from fines. Cities will be required to study an intersection’s traffic volume and frequency of red-light violations before installing cameras, and must also determine whether the cameras result in a reduction of accidents in order to keep the camera in place. Cities will only be allowed to keep a limited portion of the revenue generated from the fines, and the rest must be spent on traffic safety and regional trauma centers.

Social Issues

Every session there are numerous polarizing social issues considered, and the 80th Session was no different. This session some of the biggest issues dealt with the Children’s Health Insurance Plan, voter identification requirements, and strengthening child predator penalties.

Children’s Health Insurance Program (CHIP): In the 2003 78th Session, facing a $10 billion shortfall, legislators had cut funding for CHIP, tightened enrollment requirements, and outsourced its operation. Since that time, the number of children covered by the program has dropped by at least a third leaving millions of federal dollars on the table, and shifting portions of the burden of costs of medical care for uninsured children from the state to the counties and their taxpayers. In the 80th Session, Representative Sylvester Turner and others, pushed for changes to increase CHIP enrollment and ease the restrictions instituted 4 years earlier. HB109, by Representative Turner, sponsored by Senator Kip Averitt, was the vehicle for these changes although nearly 30 other CHIP bills were filed. Representative Turner used his political capital as Speaker Pro Tempore and his own considerable persuasive powers to win over skeptical Members, and ultimately pass the legislation after a last minute point of order was pulled down. HB 109, as passed, will add approximately 128,000 new children to the program and extend the eligibility filing requirements from six months to 12 months, with an electronic verification every six months for the highest earning CHIP families.

Voter ID: Requiring would-be voters to show identification to establish eligibility to vote has been a partisan issue, supported by Republicans and opposed by Democrats; so it is no surprise this precipitated one of the most contentious debates of the 80th Session. HB 218, by Representative Betty Brown and sponsored by Senator Troy Fraser, sought to prevent and deter voter fraud by requiring proof of personal identification at the polls. After six hours of debate on the House floor, the measure passed with a close vote, divided mostly along party lines. In the Senate, Democrats were united in their effort to block consideration of the bill on the Senate floor by maintaining eleven votes against the bill, thereby denying the twenty-one vote minimum required to allow consideration under the Senate’s traditional two-thirds rule.

In a surprise move, Lt. Governor Dewhurst attempted to bring the controversial bill up for debate when Senator Carlos Uresti was absent from the floor while ill with the flu. The motion to consider initially passed with the Lt. Governor refusing to recognize a vote by Senator John Whitmire who was momentarily absent from the floor. This created discord within the chamber, and to restore order, the Lt. Governor allowed for a revote, but would not delay it for the return of Senator Uresti. Ultimately, Senator Uresti, who had been notified of the vote, returned to the chamber in time to cast his vote and block the bill. The following day the Lt. Governor’s office issued a statement criticizing Senate Democrats in general and Senator Whitmire in particular. While the Lt. Governor later said he had not approved the letter, its content outraged members on both sides of the aisle and shut down Senate business for the day. Senators caucused without the Lt. Governor, and sent 3 Senators to meet with him to air the frustrations of the chamber. After calm was restored to the Senate, Senator Mario Gallegos, who underwent a liver transplant at the beginning of the session, vowed to remain in Austin against his doctors’ orders to block further consideration of the Voter ID bill. In consideration of Senator Gallegos’ condition, Lt. Governor Dewhurst pronounced HB 218 dead several days before the session concluded, thus ending the drama.

Jessica’s Law: The top legislative priority for Lt. Governor Dewhurst this session was enactment of a measure known as “Jessica’s Law” to require stiffer punishment for repeat child sex offenders. The Lt. Governor laid out his “Texas Children First” agenda in the opening days of the session with Jessica’s Law as the capstone of the plan. HB 8, by Representative Debbie Riddle and sponsored by Senator Bob Deuell, as originally filed, would have directed prosecutors to pursue death sentences for repeat child sex offenders. However, debate on the bill was halted after concerns were raised by local prosecutors over the potential negative effects in securing convictions and the constitutionality of the death penalty provisions for non-capital offenses. Ultimately consensus was reached and HB 8 was passed, creating one of the toughest “Jessica’s Laws” in the nation. The compromise language allows, but does not require, the death penalty for repeat offenders, requires lifetime GPS monitoring of convicted serial offenders, eliminates the statute of limitations in child sexual assaults, and creates a minimum 25 years to life sentence for specific offenses. 

Other Key Issues  

During the 80th Regular Session of the Legislature, several other major policy bills were filed, some of which passed and many of which did not. Examples of the higher profile bills include utility rate reform, “castle” defense doctrine, record votes and traffic light cameras.   

Utility Rate Reform: SB 482, by Senator Fraser and sponsored by Representative Phil King, was filed in response to the growing consumer unrest over high electric rates. Specific issues were raised with TXU, which while seeking approval of its sale to private investors, was accused by some of abusing its power. The legislation would have put new rules into place to protect low-income residents against disconnections, prohibit charging deposits to customers with good payment histories and allowed regulators to issue higher fines for abuses by corporations. However, the bill was killed on a point of order in the waning days of the session, and there was not time to revive the measure.

“Castle Defense” Doctrine: SB 378, by Senator Jeff Wentworth and sponsored by Representative Joe Driver, was passed to give Texans the right to use deadly force to protect their homes, businesses and vehicles without having to prove they first had tried to flee. Previously a 1973 Texas law stated that a person must attempt to retreat before firing a gun at an intruder. The measure received widespread support for its protection of citizens from lawsuits if they injured or killed a trespasser. A related measure, HB 991 by Representative Patrick Rose and sponsored by Senator Bob Deuell, requiring the identities of concealed handgun permit carriers to be kept secret, was also passed.   

Record Votes: Representative Dan Branch and Senator John Carona proposed a constitutional amendment requiring each chamber to record its votes on certain legislation. HJR 19 is a compromise between the House’s desire for fewer record votes and the Senate’s preference for roll-call votes at nearly every step of the lawmaking process. The final measure, which must be approved by voters, will require both the House and Senate to take on-the-record votes on final passage of all substantive bills. Texas was one of only a handful of states without a record vote requirement on the books.