Though only the final two weeks of the 87th Texas Legislature stand between the 181 representatives and senators and their return home, much work remains. Of the roughly 7,000 bills filed, just 150 have currently passed both chambers and been sent to Gov. Greg Abbott. At this time last week, he had not yet acted upon any of the then 61 bills before him; that can no longer be said, as Wednesday Gov. Abbott was joined by several legislators for a formal signing ceremony for House Bill 1024. The measure makes permanent the governor’s executive order authorizing restaurants to sell alcohol to-go and is effective immediately.
Treasury Releases Interim American Rescue Plan Rules, Requests Comment From Counties
On Monday, the U.S. Treasury Department released its long-awaited Interim Final Rule on acceptable uses for the $1.9 trillion American Rescue Plan (ARP). The 151 pages of proposed rules include a request for comment from county officials by July 9. The National Association of Counties (NACo) is compiling individual county submissions here. Even though these are not the final rules that were expected this week, there are several important data points counties need to consider.
As previously reported, ARP funds can be expended on supporting public health expenditures, addressing negative economic impacts caused by the public health emergency, replacing lost public sector revenue, providing premium pay for essential workers, and investing in water, sewer and broadband infrastructure, and certain capital improvement projects.
Expressly prohibited in the guidance are any attempts to directly or indirectly offset revenue loss as a result of a tax rate reduction, or depositing funds into pension accounts. A NACo PowerPoint summary of the interim rules can be found here.
Key Dates:
- March 3, 2021: Considered the beginning of the ARP “covered period.” County administration costs relating to the pandemic from this date forward are considered eligible for ARP fund usage.
- July 9, 2021: Deadline to comment on U.S. Treasury’s Interim Final Rule on ARP. NACo will be compiling questions and concerns at the link above, or counties can email the Treasury directly at SLFRP@treasury.gov
- Aug. 31, 2021: Deadline to submit first Recovery Plan Performance Report to Treasury. This first reporting date only applies to counties with populations greater than 250,000.
- Oct. 31, 2021: Deadline to submit first Quarterly Project and Expenditure Report.
- Dec. 31, 2024: Counties must obligate all ARP funds for specific projects and programs or risk the funds being clawed back.
- Dec. 31, 2026: Counties must spend all ARP funds and complete all associated projects or return the funds to the Treasury.
For additional information and helpful links, visit TAC’s American Rescue Plan Information & Resources page.
House State Affairs
As is not atypical in the waning days of a legislative session, the House State Affairs Committee convened a hastily called meeting to consider Senate Bill 10. Replacing the version passed by the Senate was a new committee substitute from House sponsor and Chairman of the committee, Rep. Chris Paddie (R-Marshall). While Paddie’s new version of SB 10 is not yet available online for review, it is reported to contain some significant improvements.
As is currently understood, the bill largely no longer applies to associations, but only to enumerated public entities, including counties. To retain the services of a lobbyist, a county would be required to authorize the arrangement by stand-alone agenda item in an open meeting of the commissioners court and publish all terms of the agreement on the county website. A county would further be required to disclose on its website any dues spent for membership to an association employing a lobbyist along with any adopted legislative agenda or resolution. Any lobbyist under contract with a county or an association of which it is a member would be prohibited from advocating on any legislation amending Section 26.04(c) or 26.041(c) of the Tax Code. Finally, a county or its association would be prohibited from reimbursing a lobbyist for food, beverage or entertainment expenditures.
SB 10 passed the committee on an 8-5 vote and will now go to the House Calendars Committee and likely then to the full House.
House Floor Action
HB 3 by Rep. Dustin Burrows (R-Lubbock) was debated on the House floor Monday, May 10. This bill would provide more legislative oversight not only of the governor’s emergency powers during a pandemic, but also of the state’s response to other types of disasters, including hurricanes. The committee substitute, previously adopted on May 5 by House State Affairs, allows the Legislature to intervene on certain orders and proclamations issued by the governor. HB 3, as substituted, affirms the governor’s ability to suspend state laws during a pandemic and to supersede local orders issued by county judges or mayors if they are inconsistent with executive orders.
During the floor debate, the House adopted many amendments including one specifying that if a disaster declaration lasts longer than 90 days, the Legislature would be required to convene in a regular or special session and determine if the declaration should be modified or terminated. Another amendment created the Texas Epidemic Public Health Institute at the University of Texas Health Science Center at Houston that would make recommendations to a 12-member pandemic legislative oversight committee. Other amendments adopted include one prohibiting local officials from issuing an order during a pandemic disaster that requires businesses to close and another to create an emergency management warning text system. One adopted amendment helpful to counties, floor amendment 6 by Rep. Eddie Lucio III (D-Brownsville), will allow local governments to declare a disaster in order to draw down federal funding for applying, administering, spending or payment in aid of pandemic disaster mitigation, preparedness, response or recovery.
On Tuesday, May 11, HB 3 passed on third reading by a vote of 104-39. The engrossed legislation was received in the Senate on May 12.
HB 1290 by Rep. Ron Reynolds (D-Missouri City) allows a county assistance district to perform functions not more than five miles from the district. The bill passed the House on the local calendar.
HB 1476 by Rep. Keith Bell (R-Forney) requires a county to provide a detailed statement of the disputed amount of a vendor’s invoice and allows the county to withhold from required payments no more than 110 percent of the disputed amount. The bill passed the House and was received in the Senate on May 12.
HB 3482 by Rep. Toni Rose (D-Dallas) allows a county that funds a public defender’s office to include indigent legal services among eligible costs for adjusting the no-new-revenue rate. HB 3482 passed the House and was received by the Senate on May 10. The Senate Committee on Local Government has not yet heard the bill’s companion, SB 638 by Sen. Royce West (D-Dallas).
HB 4140 by Rep. Garnet Coleman (D-Houston) is an omnibus county bill containing many provisions important to county government including mental health funding and quarantine leave. HB 4140 passed the House and was received by the Senate on May 12.
Criminal Justice Bills Heard on House Floor
Although the House Committee on Criminal Jurisprudence did not meet this week, there was plenty of floor action related to criminal justice legislation. The House Calendar for Monday, May 10, included bills such as HB 225 by Rep. Senfronia Thompson (D-Houston), relating to the procedure for an application for a writ of habeas corpus based on certain new evidence (the companion is SB 1004 by Sen. Juan “Chuy” Hinojosa (D-McAllen). HB 225 would authorize a court to grant a convicted person habeas relief based on new non-scientific evidence if certain conditions are met. The bill passed unanimously and has been received in the Senate.
Also heard on the House floor was HB 3016 by Rep. Joe Moody (D-El Paso). HB 3016 would prohibit the governor from suspending any provision of the Code of Criminal Procedure or the Penal Code during a declared disaster, as Gov. Abbott did last year through executive orders during the COVID-19 pandemic. Two amendments were offered, but both were withdrawn after points of order were called. The bill passed to engrossment.
HB 1550 by Rep. John Cyrier (R-Lockhart), otherwise known as the Texas Commission on Law Enforcement (TCOLE) Sunset Re-Authorization Bill, was laid out for consideration on Tuesday, May 11, but was postponed on second reading until the next day. When it was brought up again, Cyrier announced his intention to pull the bill down and moved to postpone the bill until after the end of the legislative session (a procedural technique that effectively “kills” a bill). HB 1550, if passed, would have given TCOLE the power to investigate and subpoena its licensees.
Generally, the Legislature must pass an agency’s Sunset bill for it to continue to operate; however, an agency’s operations can also be saved through legislation known as the “Sunset safety net bill” that lawmakers file every session to keep agencies from shutting down.
The companion to HB 1550 is SB 711 by Sen. Angela Paxton (R-McKinney), which is currently parked in Senate Jurisprudence. Our sources indicate that Senate leadership will not be moving the companion bill, and TCOLE will be amended to the “Sunset safety net bill,” HB 1600 by Rep. Terry Canales (R-Edinburg).
HB 1396 by Rep. James White (R-Hillister) was also postponed until Wednesday, May 12, on second reading, and delayed by its author past the point where any chance of passage remains. The bill would have revised laws governing policies and procedures affecting peace officers and would have required TCOLE, in consultation with the Bill Blackwood Law Enforcement Management Institute of Texas, to develop and make available model policies and associated training materials on cite and release, no-knock warrants, duty of peace officers to intervene, prohibitions on the use of chokeholds and other similar neck restraints, and the duty of a peace officer to render aid. Law enforcement agencies would have been required to adopt written policies on cite and release, no-knock entries, and the duty to intervene. TCOLE would also have been authorized to suspend or revoke licenses for conduct constituting a felony or a Class A or B misdemeanor. Among other provisions, HB 1396, if passed, would have required law enforcement agencies to report to TCOLE each substantiated incident of misconduct by a peace officer.
Denial of Bail Constitutional Amendment Passes House
House Joint Resolution 4 by Rep. Kyle Kacal (R-College Station) was passed out of the House on Tuesday, May 11. HJR 4 proposes a constitutional amendment to be submitted to voters during the Nov. 2, 2021, general election authorizing the denial of bail under some circumstances to a person accused of a violent or sexual offense or of continuous trafficking of persons. One amendment by Speaker Pro Tem Joe Moody (D-El Paso) was adopted, which includes raising the burden of proof and requiring magistrates to make findings of fact for denial of bail. HJR 4 progressed to the Senate where it was received on May 12.
County Affairs
On Tuesday, May 11, the House County Affairs Committee convened at 8 a.m. to consider a three-bill agenda including Senate Bill 1357 by Sen. Bryan Hughes (R-Mineola). Rep. Jay Dean (R-Longview), the author of its identical companion, HB 4192, laid out the bill. The legislation responds to the passage of last session’s SB 2, which led to some questions regarding process and timeline requirements in county budgeting. SB 1357 provides a clear process by which a county with a population of up to 225,000 may prepare and file a proposed budget for review by the public and county officials prior to consideration by the commissioners court. On hand to testify for SB 1357 was Jim Allison, representing the County Judges and Commissioners Association of Texas. Additional support was provided by Atascosa County Auditor Tracy Barrera, who registered in support of the bill on behalf of the Texas Association of County Auditors.
Elections
HB 574 by Rep. Greg Bonnen (R-Friendswood), creates a second-degree felony offense if a person knowingly or intentionally tries to count votes knowing they are invalid; alters a report to include votes the person knows are invalid; or if a person refuses to count valid votes or alter a report to exclude valid votes. The bill passed out of the Senate as substituted and will go back to the House for that chamber to concur with the amendments or choose to take it to conference.
HB 1622 by Rep. Ryan Guillen (D-Rio Grande City), gives a voter who is registered to vote in the county the opportunity to submit a complaint to the secretary of state if an early voting clerk does not post the early voting roster in a timely manner. HB 1622 charges the secretary of state with promulgating the rules to create and maintain a list of early voting clerks who have not complied with the requirements. The bill has passed both chambers and was sent to the governor.
House Ways and Means Committee
Monday, Senate Bill 1413 by Sen. Angela Paxton (R-McKinney) was heard in the House Ways and Means Committee. Chairman Matt Krause (R-Fort Worth) is sponsoring the bill in the House. The bill makes significant changes to how county tax offices communicate, accept and refund property tax payments. The committee substitute removed the opt-out provision for taxpayers, changing it to an opt-in for the public to receive electronic communications and payments. Additionally, the substitute removed the population bracket, which will now require all counties to offer electronic communications and payments. Tammy McRae, Tax Assessor-Collector for Montgomery County and President of the Tax Assessor-Collectors Association of Texas, and Kevin Kieschnick, Tax Assessor-Collector for Nueces County, testified in opposition of the bill. Currently, there are ongoing negotiations with stakeholders. The bill was left pending in committee.