88th LegislatureBehemoth Bills and Bureaucracies: Texas’ Unique, Cumbersome Sunset Review Process

The process is cumbersome and takes up to or more than a year to review each agency when its charter nears expiration.
February 2, 2023
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We need to sunset the Sunset Commission,” state Rep. Tom Craddick (R-Midland) said at a meeting of oil and gas interests last August.

It was an aside in a larger discussion on emissions regulation by the federal government in the Permian Basin, but struck at lingering concerns and frustrations among some legislators about the sunset process.

The original concept was well thought out and a good concept,” Craddick, who was in the House at the time of its inception, told The Texan. “But it’s not that anymore, it’s become a catch all. They’ve just become a Christmas tree for everything.”

The Sunset Advisory Commission (SAC) is tasked with reviewing the effectiveness and value in existing agencies and state programs — a process conducted for each entity every 12 years.

Since its inception in 1977, the commission’s own tally shows the abolition of 42 agencies or programs, the consolidation of 52 into other existing entities, $1 billion in taxes saved, and an 80 percent success rate of its recommendations becoming law since the turn of the century. Many states have no such mechanism for bureaucratic review and few are as robust as Texas’.

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This coming session, there are 21 state entities up for consideration — among which two headliners are the Public Utility Commission and the Electric Reliability Council of Texas. Both entities were scheduled for sunset review in 2025 but were moved up two years to 2023 due to the power grid collapse and the legislative reforms made thereafter.

Another agency up for review is the Texas Juvenile Justice Department, which has been rocked with controversy after controversy for years and faces a staffing hemorrhage.

The Texas Juvenile Justice Department (TJJD) was born out of scandal, and a decade later, it still struggles to avoid the spotlight,” the Sunset Commission’s report reads. “Since TJJD’s creation, the agency has been caught in a seemingly endless cycle of crises and instability, even after legislative initiatives cut in half the number of youth it must directly supervise and facilities it must operate.”

The commission recommends giving the agency a financial boost to help fill the vacancies, revamp its oversight, change the internal language to meet “person-first respectful language” standards, and continue its charter for six years rather than 12.

The sunset process was established in the 1970s in response to events during the decade that sowed broad distrust in governmental institutions; the Vietnam War, rampant inflation, and Watergate were among those catalysts.

That decade’s economic turmoil also brought with it public concern over government spending. In 1974, the Legislature convened as a constitutional convention — a gathering scheduled three years earlier to revise and replace the state’s current governing document — and approved a host of changes, including a 10-year sunset provision. Those proposals fell three votes short of the number needed to go before the voters.

The following year, similar revisions to the constitution were passed by the Legislature; those revisions went down in flames at the ballot box 74 to 26 percent.

Two years later, the Legislature passed the Texas Sunset Act that set the current 12-year lifespan of state agencies unless renewed by the body.

Since then, the SAC has led the review process.

It typically begins in September of odd-numbered years when the agencies up for review submit their self-evaluation reports.

That kicks off a year-or-longer process of fielding agency input and public comments while researching similar institutions in other states.

Sunset bills are massive, the proverbial haystacks in which needles may hide. In 2019, a provision within the Texas Alcoholic and Beverage Commission (TABC) renewal bill — the 300-page House committee substitute from then-state Rep. Chris Paddie (R-Marshall) — drew criticism for potentially granting broad powers to the agency and its employees. The bill allegedly would have made it so that if the law did not specifically allow an action, then TABC shall consider it unlawful.

State Rep. Charlie Geren (R-Fort Worth) caught the provisional change and amended the TABC bill to prevent it from taking effect.

That’s complicated, bureaucratic jargon to slog through. But had it passed, Geren argued, TABC would have tremendous discretion to decide what is unlawful beyond what code strictly stipulates. And the pandemic showed just how much authority the TABC already possesses; the agency executed multiple sting operations against bars across the state for violating state and local government closure orders.

The TABC sunset fight was prefaced by a lawsuit from liquor retailer Spec’s against the agency for allegedly “wrongfully and maliciously” targeting the chain, and it led to the floor fight during consideration of the Geren amendment.

These frigate-sized bills also see previously dead legislation appended onto them like barnacles to a ship’s hull.

A month after state Sen. Charles Schwertner’s (R-Georgetown) 2019 legislation ordering a study on “alternatively fueled vehicles and gasoline and diesel taxes” was sent to the Transportation Committee, the exact same language was tacked onto the Texas Department of Motor Vehicles (TDMV) sunset bill in an amendment.

Another bill, this one by former state Rep. Chris Paddie (R-Marshall) legalizing digital license plates, was pinned onto the same TDMV renewal legislation after the Senate approved its own committee substitute.

After his bill authorizing the Texas Department of Licensing and Regulation (TDLR) to create a motorcycle training program and establish fees to pay for it stalled in committee, former state Sen. Kirk Watson (D-Austin) successfully added much of those provisions to the Texas Department of Public Safety renewal legislation — a large umbrella bill that transferred such training programs under TDLR’s purview.

While state Rep. Armando Walle’s (D-Houston) 2019 bill restricting credit companies’ ability to pursue criminal charges lingered in committee, he unsuccessfully tried to tack the same bill on to that year’s Office of Consumer Credit Commissioner sunset legislation as an amendment.

Last regular session, state Rep. Matt Schaefer’s (R-Tyler) proposed legislation enabling graduates of trade schools or programs to obtain plumbing licenses from the Texas State Board of Plumbing Examiners passed as an amendment to the agency’s renewal bill.

State Sen. Roland Gutierrez’s bill establishing a suicide prevention program for farmers was tacked onto the Department of Agriculture’s renewal.

While it had not been filed as legislation, state Rep. Bryan Slaton (R-Royse City) tried multiple times to amend agency renewal bills with language forcing the entity to repeal two regulations for every one it approves.

A lot can be shoved into these behemoth bills.

Former Speaker Joe Straus had harsh words for the sunset process seven years ago, reflecting on the 2009 review of the Texas Department of Transportation. There were over 200 amendments filed on that extension bill and it summarily crumpled under its own weight.

It makes a mockery of the whole Sunset process, and it makes me question whether or not it still serves a useful purpose,” Straus told the Texas Tribune back then.

Yet it’s not just legislators tack on that can warp the original intent of the program.

According to the SAC, 80 percent of those sunset recommendations are adopted.

In many ways, the [sunset] process has become nothing more than a way to rubber stamp the wishes of the agencies affected,” state Rep. Briscoe Cain (R-Deer Park) told The Texan

Referring to the commission staff’s recommendations becoming law more often than not, Craddick added, “The sunset commission has basically turned into young staffers drawing up legislation.”

Rep. Matt Shaheen (R-Plano) told The Texan, “There are certainly improvements to the process that can be made but I’m pleased with the fact that we have a sunset process where state agencies have to justify their existence from time to time.”

Asked about those possible improvements, Shaheen pointed to requiring of the agencies “report[s] on their efforts to improve processes [and] the implementation of best practices and technologies” along with the demonstration of “business cases that show real savings and productivity improvements.”

For Cain, Craddick, and others of their persuasion, the commission is ripe for review just like the agencies it evaluates.

In 2017, former state Rep. Larry Phillips’ legislation to force a review of the SAC went nowhere despite clear frustrations from some in the body, even the then-speaker, with the process. That same year, the sunset safety net bill perished at the death of the 85th regular session, forcing a special session to extend the life of those entities.

There have been frequent grumblings by lawmakers about the sunset process, and despite some tangible support for reform, such measures have not gained any traction; per Craddick, that tangible support still exists under the pink dome.

I think if you had a bill changing the sunset process it would have a ton of support,” Craddick stated.

But so far this session, no legislation to reform or force a review of the SAC has been filed. Legislators have until March 10 to file bills.

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Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.