87th LegislatureState HouseState SenateDiffering Approaches to Texas Disaster Act Reform Reach Crossroads in Senate Replacement of House Version

Though a measure to require legislative approval for major disaster declaration renewals died in the House, it was revived in the Senate as a substitute for House Bill 3.
May 21, 2021
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A feud between the Texas House and Senate reached a boiling point on Thursday when lawmakers in the lower chamber recessed until Sunday.

Nearing the deadlines to pass legislation, the move effectively killed hundreds of Senate bills that had not been affirmed through a House committee yet — including Senate Joint Resolution (SJR) 45 and Senate Bill (SB) 1025 from Sen. Brian Birdwell (R-Granbury) that would reform the Texas Disaster Act.

But Birdwell’s legislation isn’t exactly dead. It’s taken a new form as the substitute for House Bill (HB) 3, the Texas Pandemic Response Act that the House approved last week.

Since the previous iteration of Birdwell’s proposal was already approved by the upper chamber, his updated version in the shell of HB 3  — which was unanimously approved by the Senate State Affairs Committee on Friday — is expected to have similar support.

Assuming the Senate approves the new version before its deadline on Wednesday, May 26, it will be up to the House whether the reform will be sent to the governor before the final May 30 deadline or not.

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With Texas being the last state in the union to convene its legislature since the COVID-19 pandemic began, something to watch as the legislative session began in January was how lawmakers might shake up state code in response to the pandemic.

But the House and the Senate didn’t share the same idea about the right approach to the matter.

In the House, Rep. Dustin Burrows (R-Lubbock) put forward HB 3 to create a new section in the Texas government code right beside Chapter 418, which is known as the Texas Disaster Act.

The Texas Disaster Act was the basis on which Gov. Greg Abbott issued his many executive orders throughout the COVID-19 pandemic, but Burrows’ original bill would have outlined the specific ways that the Texas government should handle pandemic situations.

As originally filed, HB 3 did not present any substantive deviations from the way that Abbott approached the coronavirus pandemic, but later iterations of Burrows’ bill sought to address concerns from activists and lawmakers that there should be greater legislative oversight.

First, a provision for a “Pandemic Disaster Legislative Oversight Committee” was added, which would have authorized the lieutenant governor, speaker of the House, and a handful of committee chairs to review pandemic disaster declarations beginning 30 days after being issued by the governor.

And in the final House version of HB 3, the legislature would need to approve mask mandates, business closures, or surgery limits if the governor renews the order beyond 30 days, and the governor would need to call a special legislative session in order to renew a pandemic disaster beyond 90 days.

While the House sought to create a comprehensive plan on how to handle one specific type of disaster, the Senate wants to reform the Disaster Act itself to require legislative oversight on any widespread disaster.

“As passed by the House, HB 3 did not reform the Texas Disaster Act. Rather, it created a new body of law that would have strictly spoken to pandemics,” said Birdwell as he introduced HB 3 in the Senate State Affairs Committee on Thursday evening.

“However, the problems with our disaster and emergency laws are not confined to pandemics that may occur once in a generation,” he said. “The inherent imbalances codified in the Texas Disaster Act warrant a comprehensive reform of this legislation.”

To that end, Birdwell removed the text of HB 3 and replaced it with a modified version of his original proposal.

However, some notable changes were made to his proposal because Birdwell addressed some of the bill’s criticisms, an “attempt to be in a compromising spirit with the House,” and additional limits of what can be achieved without a bill and not SJR 45, which was a constitutional amendment. 

Most significantly, while Birdwell’s original proposal would have required the governor to receive the legislature’s approval to renew a significant disaster declaration beyond the initial 30 days, the substitute for HB 3 allows the governor to renew it once but to seek legislative approval for anything beyond 60 days.

“By going from 30 to 60, it gives me the opportunity to try to build some discussion with the House to see what we can reach agreement on,” said Birdwell.

The extended timeline gives the governor more time to address a statewide disaster and end it of his own volition, as Abbott did with the statewide freeze this winter.

Birdwell’s new version of his reform bill also cuts out one of the three qualifying sizes of a disaster that require legislative oversight if they are extended beyond the limit.

The reform would still apply to a disaster that affects either two-fifths of the state’s counties or half of the state’s population, but would not apply to disasters that affect “at least two-thirds of the counties in three or more trauma service areas in the state.”

By removing the last qualifying size, Birdwell said that the Hurricane Harvey disaster — which Abbott has continued to renew since the storm hit in 2017 — would not fall into the category requiring legislative input.

Birdwell also tweaked the language in HB 3 since it does not have an accompanying constitutional amendment like SB 1025.

“Only a constitutional amendment can compel the governor affirmatively to call the legislature in,” said Bridwell. “So the only options here in this bill that would compel the governor to do something, is if we say — and preclude him — ‘you may not do something without legislative approval.’”

As a result, while the SJR that died in the House said that the governor “shall convene” the legislature to renew a qualifying disaster declaration, the substitute for HB 3 says that “unless authorized by the legislature [. . .] the governor may not” renew such a declaration beyond 60 days.

If the upper chamber approves the bill, it will return to the House where custom will largely leave the decision to concur with the Senate changes up to Burrows, the House author of HB 3.

“Significant work has gone into HB 3 from both chambers to ensure that there is a framework in place to protect our liberties from government intrusion during public health emergencies,” Burrows told The Texan. “The most important objective is to ensure that our rights are protected and the Legislature’s final product will ensure that Texans and not government are driving the decisions best for the families.”

“I will take a look at the Senate’s HB3 sub and see if it is germane to the bill we sent over, and if we need to conference to produce the best bill possible,” said Burrows.

The last day for the House and Senate to agree to a final plan produced by a conference committee is Sunday, May 30.

But final approval from the legislature would still not be the final hurdle for the proposal — it would also need to avoid a veto from Abbott.

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Daniel Friend

Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.