Last year focused heavily on campaigns and issues outside of the Texas Legislature. This year, the body is the main course.
Here’s a list of top themes to watch for as the 181-member body convenes for its biennial 140-day sprint toward sine die.
Abbott’s Emergency Items
Due to constitutional restrictions, the Texas Legislature cannot fully act on legislation until 60 days into the session — unless the governor includes the issue on his list of emergency items. That list includes issues that the governor feels especially pertinent to the session, allowing the Legislature to bypass the date restrictions for those items only.
Gov. Greg Abbott announced his last emergency item list during the annual State of the State address on February 1, 2021; it included five items, four of which were fully passed while the other, bail reform, failed to meet the voting threshold required to amend the constitution. He added more to that list after the power grid blackouts that occurred two weeks later.
Abbott is likely to announce his 2023 list in similar time and fashion, but what he’ll put on it is unclear. A return of bail reform is a good bet, and restoration of the felony penalty for illegal voting could find itself on the list as well.
One potential candidate is more funding or direction on border security. The issue was a big part of Abbott’s campaign rhetoric and continues to linger as the Biden administration tries to pare back Trump-era border policies. Encounters by border officials soared to record highs in Fiscal Year 2022.
School safety funding along with a pay raise for teachers are strong candidates as well, given how much the governor discussed them on the campaign trail.
Abbott also talked a lot about property tax reform — calling for “the largest property tax cut in the history of the State of Texas” — which signals the desire to revisit an issue the last two Legislatures have both acted on. He’s also called for stronger restraints against politically charged instruction on race and gender in public school classrooms.
A giant question mark hovers over Abbott’s desire to rehash the power grid issue. He’s said previously that “everything that needed to be done, was done to fix the power grid” in the context of the state’s physical and bureaucratic reforms. But now, the Legislature is hellbent on taking a swing at tweaking the electricity market, a complicated endeavor focused on price signals.
The emergency item list will provide a roadmap of the governor’s priorities during the session, and being the only official who can convene the Legislature in special sessions, its direction is often heeded.
Interchamber Relationship
It’s no secret that the Texas House and Senate — and by extension, the lieutenant governor and House speaker — have a rocky relationship.
They often have different priorities and function wildly differently. The Senate is regimented and directed by Lt. Governor Dan Patrick while the House often resembles herding cats, especially with Speaker Dade Phelan’s (R-Beaumont) stated preference to let members direct much of the policy course.
Phelan currently faces a challenge from state Rep. Tony Tinderholt (R-Arlington), but after receiving 78 votes to Tinderholt’s six in the House GOP Caucus vote, the incumbent appears likely to reprise his role next year. But there is a second prong of this challenge: the custom of appointing some members of the minority party to chair committees.
Whereas Phelan curries support from Democratic members to secure his speakership — avoiding the outcome of a dozen or so Republicans aligning with every Democrat as with former Speaker Joe Straus — Patrick has the ability to change the Senate’s supermajority threshold at will due to the votes he has in his chamber.
The Senate has set aside the first 30 bill numbers for the chamber’s priority legislation, while the House has set aside 20.
Lt. Governor Dan Patrick has already unveiled his broad list of priority items for next session and Phelan has hinted at certain priority topics while keeping the full list close to his chest for now. A potential point of contention between the two exists in the illegal voting felony restoration, a part of the 2021 election reform bill that was reduced to a misdemeanor by an amendment in the House during the second special session.
Phelan pumped the brakes on Patrick’s calls to revisit the question, which now arises for the 2023 Legislature.
Patrick’s career is at least in its latter stage after he secured a third term last November — starting a shot clock on his last chance or chances to cement a legislative legacy — while Phelan’s only entering his second term at the helm. The dealings between Patrick and Phelan will go a long way toward deciding what passes legislative muster next year, what doesn’t, and whether the pair must return to Austin for one or more special sessions.
Lingering Border Crisis
After Vice President Kamala Harris claimed in a September interview that the southern border was secure, Texas Gov. Greg Abbott dropped several busloads of illegal immigrants near her home on Christmas Eve.
The move highlighted not only the political gamesmanship and deadlock border security faces in Washington, D.C., but the bitter partisan feud that continues to boil over while hundreds of thousands of illegal immigrants cross the southern border every month and deadly narcotics like fentanyl continue to be seized.
In November, U.S. Customs and Border Protection reported there were 134,546 arrests for illegal entry on Texas’ portion of the southern border. Across the whole border, that number was 233,740, up nearly 60,000 from November 2021.
Narcotics smuggling and human trafficking have also increased dramatically, prompting Gov. Abbott to issue a proclamation designating cartels and gang members as “terrorists.”
While the U.S. Supreme Court has allowed a Trump-era public health order under Title 42, which allows border protection agents to rapidly deport illegal immigrants, to remain in place against the wishes of the Biden administration, two things can be certain going into 2023: the crisis is not subsiding, and neither is political deadlock on the issue.
Budget and How to Spend the Surplus
The Texas Comptroller of Public Accounts estimates at least $27 billion in budget surplus for the 2024-25 biennium. How much of that sum to spend and for what purposes will draw much of the Legislature’s focus next year as it completes its sole constitutional mandate — to pass a budget.
Abbott planted his flag at using “at least half” of that sum to buy down local property tax rates. Patrick pointed out in December that would itself exceed the constitutional spending cap for the budget, but proposed an unconventional way around that limit: passing certain appropriations as amendments to the constitution.
Both officials have indicated their desire to provide public school teachers a pay raise, and Patrick has suggested another thirteenth pension check to retired teachers or passing a “cost of living adjustment” for their benefits.
Meanwhile, Phelan stated a large focus should be placed on using the money for infrastructure development.
Given the sum and the typical budgetary process, there will be many different interests vying for a slice of the financial pie. Last session, the Legislature passed a $248.5 billion budget for the 2022-23 biennium. That means just increasing spending up to the cap would place the next budget at roughly $261 billion.
School Choice Rumble
Gov. Greg Abbott voiced his support for school choice legislation this session while campaigning for re-election. “Empowering the parent means giving them the ability to send their child to any public, charter, or private school with state funding following the student,” he said in May 2022 to a crowd in San Antonio.
Lt. Gov. Dan Patrick also expressed support in his legislative priorities for “empower[ing] parents by giving them a voice in their children’s education.”
House Speaker Dade Phelan was more reticent. In a radio interview in May, he told host Chris Salcedo that a test vote during the budget proceedings showed there were only about 40 to 45 votes in the 150-member House in favor of vouchers.
However, a House Public Education committee hearing in July drew over a hundred citizens to testify on the issue. Invited testimony included school choice advocate Corey DeAngelis.
Nearly every session, legislation for some form of school choice is proposed, but with Abbott and Patrick suggesting it will be an important issue this time around, there may be enough momentum to move it forward.
Rep. Mayes Middleton (R-Galveston) filed House Bill (HB) 176 laying out a tax credit plan for school choice.
Opposition to school choice will no doubt arise from outside the Capitol building, on top of from some legislators within. The Ector County School District revealed in its legislative agenda that it plans to oppose school choice measures.
Controversial Content in Public Schools
One of the reasons interest in school choice has increased is parents’ growing awareness of controversial material being taught to their children. When the pandemic moved many schools online, parents began to discover content they found objectionable.
“Many families cite concern over controversial topics being taught in the schools like critical race theory and modern gender theory,” the Texas Home School Coalition said of the significant growth in homeschooling across the state in the last couple of years.
There have been battles at the local district level around the state, especially related to library materials containing graphic depictions of sexual acts. Parents and legislators alike have been involved in the fight.
Rep. Jared Patterson (R-Frisco), who was involved in challenging explicit library books, filed HB 976 to punish those who expose children to obscene materials. In amending the Texas Penal Code, it would remove “scientific and educational” purposes as an affirmative defense to prosecution.
Rep. Steve Toth (R-Spring) submitted a similar bill, HB 111, along with HB 631, the provisions of which are designed to ensure that parents have access to information about any health care services offered to students. It also prohibits instruction about sexual orientation or gender identity from kindergarten through fifth grade.
Legislation proposed by Rep. Tom Oliverson (R-Houston) would require that publishers provide a content rating for books and other written materials.
On the other hand, Rep. Harold Dutton (R-Houston) authored HB 917 prohibiting public schools from removing any books from their libraries, instead placing them on a restricted list for which parental authorization is required before a student may access them.
Sen. Donna Campbell (R-New Braunfels) filed Senate Bill (SB) 165 requiring a parent’s written permission before a school may instruct a student with visual or written materials containing sexual or violent content.
Rep. Christina Morales (D-Houston) has introduced a bill, HB 45, which would add to a school’s required curriculum at least one credit in “ethnic studies, including Mexican American studies or African American studies.” Sen. Carol Alvarado filed a similar bill, SB 248.
Child Gender Modification
A rising social issue bound to see battle in 2023 as partisan forces face off in the upcoming legislative session is the issue of allowing minors to undergo gender modification, hotly opposed by social conservatives and staunchly defended by some Democrats.
Efforts last session to ban the practice failed, but later legal opinions by Texas Attorney General Ken Paxton determined the procedures constitute child abuse under existing law. That caused some hospitals to stop the practice, but hasn’t ended the issue.
State Rep. Brian Harrison (R-Midlothian) has filed a bill that would prohibit the use of taxpayer funds from being used to fund any sex change operations.
Furthermore, legislation has also been filed to codify Paxton’s ruling by expanding the definition of child abuse to specifically include gender modification-related operations, adding material for the legislative quarrel.
Property Tax Tweak or Overhaul?
The budget surplus has left many with dollar signs in their eyes and no issue has gotten more attention than property taxes. But due to the nature of the property tax and the school finance systems, any reduction in local rates must be continued in perpetuity — otherwise the reductions are temporary.
Without a cumbersome and difficult overhaul of the entire system, the state will have to replace the school funding lost to lowered local rates.
But some plans go beyond a simple compression of rates. State Reps. Tom Oliverson (R-Cypress) and Matt Shaheen (R-Plano) filed similar bills that would eliminate the school district Maintenance & Operations (M&) rate — the single largest component of property tax bills. $0.90 of every surplus state dollar would go toward filling the gap of the current M&O rate.
State Rep. Andrew Murr (R-Junction) re-filed his 2021 proposal to eliminate the M&O rate, but didn’t set forth a replacement and instead tasks a committee with the decision.
Patrick has his sights set on raising the homestead appraisal again after it was increased to $40,000 last year.
Tangentially, Abbott has called for raising the exemption for business personal property to $100,000 if not higher — which Patrick’s priority list also includes.
From a non-dollars and cents perspective, appraisal reform is another segment of the property tax issue.
The state has spent $6.2 billion compressing local rates since 2019 and set aside another $3 billion in federal coronavirus aid for further compression next year.
Second Try on Bail Reform
In the 2021 session, state lawmakers successfully passed bail bond reform legislation that prohibited the release of certain violent or repeat suspects on personal recognizance (PR) bonds, but fell short of the two-thirds needed to place on the ballot a constitutional amendment that would allow judges to deny bail to some suspects accused of violent and sexual offenses.
State Sen. Joan Huffman (R-Houston) announced earlier this year that she would reintroduce the proposed amendment and also add convictions of unlawful possession of a firearm and family protective order violations to the list of offenses ineligible for PR bond.
According to testimony from victims advocate Andy Kahan of Crime Stoppers of Houston, Harris County criminal court judges release 30 to 40 defendants charged with Felon in Possession of a Weapon on PR bond each month. Kahan cited cases in which the suspect allegedly committed additional crimes, including murder, after release on bond.
Following revelations that some bail bond companies charge suspects down payments of as little as one percent of court-ordered cash bail, Rep. Ann Johnson (D-Houston) introduced House Bill 227 that would mandate a minimum 10 percent payment for defendants.
Earlier this year, the Harris County Bail Bond Board approved a 10 percent rule for defendants charged with violent crimes, but similar practices in California have drawn a federal antitrust class action lawsuit alleging price-fixing.
Power Grid Redux
Addressing the state’s main power grid was the unforeseen item dropped in the lap of the 87th Legislature after the February blackouts. Legislators passed broad reform of the grid’s regulator and operator and set forth weatherization requirements for its physical infrastructure. However, it punted to the Public Utility Commission on altering the wholesale electricity market.
After a year of fielding input and kicking around changes, PUC officials were notified by legislators that the latter now wants a say on the Electric Reliability Council of Texas’ (ERCOT) redesign. The redesign’s purpose is to tweak price and market signals to incentivize the development of new thermal, called “dispatchable,” electricity generation. Currently, a large amount of wind and solar generation development is in the state’s queue, while natural gas and coal generation is facing a net loss with retiring plants.
Among Patrick’s priorities is ensuring the development of more natural gas plants in ERCOT; he didn’t know just how that’d be done but said subsidization was a possibility.
The main reason for the influx of renewable energy, and by extension the growing reliance on wind and solar power, is the collection of federal tax credits allotted to those developers. It creates a competitive financial advantage over thermal generation, which receives tax breaks but not nearly as much. Those federal credits for renewables were just extended for 10 years by the Inflation Reduction Act.
It’s unclear how much Texas can counteract the federal incentive or its effects, but that is ultimately the state’s endeavor. And the complicated nature of it means that the power grid will reappear next session for a second round and a second stab.
Chapter 313 Revival
A statutory tax incentive program known as “Chapter 313,” which allowed school districts to grant tax abatements to companies upon the promise of moving into their jurisdiction and creating jobs, is expiring at the end of 2022.
The demise of the program was due to the Legislature’s inability to pass legislation renewing it, leaving the program to run out its remaining time and “sunset.”
Numerous opponents to the program claimed it was a failure, pointing to a study that found a high percentage of businesses brought to the state would have gone there anyway, and described it as a “corporate welfare program.”
Lawmakers like Sens. Bob Hall (R-Edgewood) and Louis Kolkhorst (R-Brenham) have found themselves alongside think tanks on both sides of the aisle, like the conservative Texan Public Policy Foundation and progressive Every Texan, in fighting not only to kill the program but ensure it remains dead.
Those seeking to resurrect Chapter 313 include House Speaker Dade Phelan as well as school districts like the Ector County Independent School District in Odessa that adopted a plan to redesign and resurrect Chapter 313 in its legislative priorities.
###
Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.
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.
