The URL can be used to link to this page

Home My WebLink About(P1) 690767887_v 3_Port Arthur Legislative Update 2The 88th Texas Legislative Session What happened and what comes next? Karen M. Kennard 1 Part I: GT’s Texas Government Law & Policy (“GLP”) Practice Part II: The Texas Legislative Process Part III: The 88th Texas Legislative Session Important Dates & Bill Statistics Priority Issues Special Sessions Part IV: Special Sessions Overview 2 2 Texas GLP Practice - Part I - 3 3 Located in Austin, Texas Advocate for clients’ interests before the Texas legislature, local government entities, state agencies, and the federal government Counsel clients on various public policy matters Texas GLP Practice 4 4 Texas GLP Team 5 Thomas J. Bond Shareholder – Elizabeth Ross Hadley Shareholder – Karen M. Kennard - Shareholder - Demetrius G. McDaniel - Shareholder - Sergio Cavazos - Associate - 5 Texas Legislative Process - Part II - 6 6 The Texas Legislature meets for 140 days every odd numbered year (Tex. Constitution) Governor can call special sessions that last 30 days Constitution only requires passage of a balanced budget 50 members in the House of Representatives - led by a peer-elected Speaker of the House Current Speaker of the House: Dade Phelan 31 members in the Senate – led by a statewide elected Lieutenant Governor Current Lt. Governor: Dan Patrick The Texas Legislative Process 7 7 8 8 88th Texas Legislative Session - Part III - 9 9 Dates First Day of Session: January 10, 2023 Last Day of Session (Sine Die): May 29, 2023 Bill Statistics Bills Filed: 8,046 Bills that Failed to Pass: 6,800 Bills that Became Law: 1,170 Bills Vetoed: 76 Joint Resolutions Filed: 299/Filed with Sec. of State : 13 88th Session Dates & Bill Statistics 10 10 1. Appropriations & Spending Historic Surplus: Texas had a $32.7 billion surplus—the largest in decades Appropriations Plan for 2024-25: HB 1 (The General Appropriations Act) - Spends $321.3 billion total toward mental healthcare, pay raises for state employees, border security, tax cuts, the energy grid, broadband, etc. Supplemental Budget SB 30 (The Supplemental Budget) - Spends $13.2 billion in the current biennium to fund healthcare, higher education, water infrastructure, flood infrastructure, etc. Priority Issues 11 11 2. Economic Development & Business Regulation Drag Performances – SB 12 (Passed) State Preemption – HB 2127 (Passed) Tax Incentive Program – HB 5 (Passed) Business Courts – HB 19 (Passed) Texas Economic Development & Tourism Office – HB 1515 (Passed) Texas CHIPS Act – HB 5174 (Passed) Priority Issues 12 12 2. Economic Development & Business Regulation (Cont.) Paid Family Leave Insurance – HB 1996 (Passed) Multiple Employer Welfare Agreements – HB 290 (Passed) Greenhouse Gas Emissions– SB 784 (Passed) 3. Criminal Justice & Public Safety Border Security – HB 7 (Failed—Special Session #1 Agenda Item) DA Misconduct – HB 17 (Passed) Enhanced Criminal Penalties for Gun-Related Felonies – SB 23 (Failed) Priority Issues 13 13 4. Energy Energy Boycott/ESG – SB 2530 (Failed) Texas Power Grid – HB 1500 (Passed) & SB 2627 (Passed) 5. General Government Data Privacy – HB 4 (Passed) Broadband – HB 9 (Passed) New Water Supply for Texas Fund – SB 28 (Passed) 6. Health & Human Services Gender Affirming Care – SB 14 (Passed) Healthcare for Mothers – HB 12 (Passed) Priority Issues 14 14 7. Public & Higher Education CRT in Higher Ed. – SB 16 (Died) DEI – SB 17 (Passed) Explicit Material in Libraries – HB 900 (Passed) Banning Trans Athletes in Intercollegiate Sports – SB 15 (Passed) School Safety – HB 3 (Passed) School Vouchers – SB 8 (Died) Lone Star Workforce of the Future Fund – HB 1755 (Passed) Priority Issues 15 15 8. Taxes Property Tax Relief HB 2 (Rep. Morgan Meyer) - Relating to providing property tax relief through the public-school finance system and property tax appraisal and administration. Proposed to reduce school district property taxes by 28% and decrease the cap on annual appraisal increases to 5%. Status: DIED (*Special Session #1 & #2 Agenda Item) SB 3 (Sen. Paul Bettencourt/Rep. Morgan Meyer) - Relating to an increase in the amount of the exemption of residence homesteads from ad valorem taxation by a school district, an adjustment in the amount of the limitation on school district ad valorem taxes. Proposed to raises the state homestead exemption for school property taxes from $40,000 to $70,000 Status: Failed (*Special Session #1 & #2 Agenda Item) Priority Issues 16 16 Field Preemption – New Legal Concept in Texas Law Prohibits a municipality or county from adopting, enforcing, or maintaining an ordinance, order, or rule regulating conduct in a “field of regulation” “occupied by a provision” of certain state laws unless the municipal or county regulation is “expressly authorized” by another state statute Signed by Governor June 14, 2023; effective September 1, 2023 H.B. 2127 State Preemption 17 17 H.B. 2127 applies to the following Texas codes: Agriculture Business & Commerce Finance Insurance Labor Natural Resources Occupations Property 8 H.B. 2127 State Preemption 18 18 Under Article XI, Section 5 of the Texas Constitution and Tex. Loc. Gov’t Code § 51.072, home rule cities have the full power of self-government subject only to contrary state general law and the Texas Constitution Constitutional home rule cities are free to regulate where the State has not enacted contrary law and do not have to look to the state for the authority to act The only limiting principle governing the State’s interference with home rule cities’ self-governance is the Texas Constitution’s conflict requirement HB 2127 State Preemption 19 19 Texas Courts have previously held: A party seeking to assert preemption of a local law by state law bears the burden of showing a direct and irreconcilable conflict between state and local law AND Intent by the State to preempt the local law with “unmistakable clarity.” H.B. 2127 State Preemption 20 20 The Texas Supreme Court has repeatedly reaffirmed that A local law is preempted by state law only “to the extent of any conflict” Dallas Merch.’s, 852 S.W.2d at 491 (quoting City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990); Comeau, 633 S.W.2d at 796 “The mere ‘entry of the state into a field of legislation ... does not automatically preempt that field from city regulation’ H.B. 2127 State Preemption 21 21 New Section 51.002 of the Local Government Code, the governing body of a municipality may adopt, enforce, or maintain an ordinance or rule only if the ordinance or rule is “consistent” with the laws of this state Provision appears to shift the burden of proof to cities to show “consistency” with state law as opposed to previous legal precedent of preemption which requires showing a direct conflict and “inconsistency” with state law H.B. 2127 State Preemption 22 22 Authorizes any person who has sustained an injury in fact, actual or threatened from a municipal or county regulation in violation of HB 2127’s provisions to bring an action against the municipality or county that adopted or enforced the regulation A trade association representing the person also could bring an action Governmental immunity of a municipality or county is waived to the extent of liability created by the bill H.B. 2127 State Preemption 23 23 A municipality or county is entitled to receive notice of a claim of preemption at least three months before a claimant may file action. The claimant may recover declaratory and injunctive relief along with costs and reasonable attorney’s fees However, a city is only entitled to recover its costs and reasonable attorney’s fees in an action if the court finds that the action brought against the city was frivolous H.B. 2127 State Preemption 24 24 Constitutional home-rule, self-governance is prohibited under H.B. 2127’s “field of regulation” and “occupied by a provision” of certain statutory codes No conflict requirement/ test is “mere entry into the field” by the state H.B. 2127 is different from other preemption laws in that it is not tied to conflicts between specific provisions of state law. Removes a clear way to identify which laws are preempted Legislative intent to preempt would be the sole test for preemption even if not tied to clearly identifiable laws H.B. 2127 State Preemption 25 25 Under H.B. 2127 unless a municipal or county regulation is “expressly authorized” by another state statute Constitutional home-rule cities would have the same status and authority as general law cities under state law. H.B. 2127 State Preemption 26 26 City of Houston filed lawsuit to challenge law San Antonio & El Paso intervened in lawsuit Travis County District Court found law unconstitutional State of Texas appealed Law currently in effect H.B. 2127 State Preemption 27 27 City received complaint that certain towing regulations preempted by H.B. 2127 Analyze regulations under provisions of H.B. 2127 No Preemption State and Federal law allow city towing regulations Port Arthur Towing Regulations 28 28 City of Port Arthur adopted Ordinance No. 22-78 in November 2022 to amend existing municipal regulations related to the responsibility of tow truck drivers. Ordinance established that unless a towing truck is being operated for purposes of towing a vehicle, no towing trucks can be parked in any open parking space, garage, carport, driveway, front yard, or similar parking facility in a residential district (Code 1961, § 114-130; Ord. No. 22-78, 11-08-2022) Port Arthur Towing Regulations 29 29 State law regulates towing and its operators through the Texas Towing and Booting Act, Tex. Occupations Code, Chapter 2308 Texas Occupations Code is one of the codes listed in H.B. 2127 Preemption language in HB 2127 specifies that “unless expressly authorized by another statute a city may not regulate…” In the case of towing operators, there are two explicit statutory grants of authority for local regulation of towing in Chapter 2308 of the Occupations Code Port Arthur Towing Regulations 30 30 Occupations Code Section 2308.201 allows a city to regulate tow trucks: “a political subdivision of this state may regulate the operation of a tow truck to the extent allowed by federal law, except that a political subdivision may not issue a more restrictive regulation for the use of lighting equipment on a tow truck than is imposed by Title 7, Texas Transportation Code” City ordinance does not apply to vehicle lighting requirements Look at Federal Law Port Arthur Towing Regulations 31 31 Federal law limits the authority of states or political subdivisions to enact laws or regulations related to a price, route, or service of any motor carrier or any motor private carrier, broker, or f reight forwarder with respect to the transportation of property Two exceptions to federal preemption of state and local government regulation of tow trucks: (1) federal preemption “does not apply to the authority of a State or a political subdivision to enact or enforce a law, regulation, or other provision relating to the regulation of tow truck operations performed without the prior consent or authorization of the owner or operator of the motor vehicle.” Thus, this exception allows for state or local regulation of non-consent tow operations: (2) federal law shall not restrict the safety regulatory authority of a State with respect to motor vehicles, including tow trucks Port Arthur Towing Regulations 32 32 The second exception has been interpreted by federal courts to determine the scope of permissible local regulation of tow truck operations Case law clarifies that Congress’s intent was to establish federal preemption of state economic regulation of motor carries of property but not preemption of the traditional state police power over safety related to these motor carriers The police power of a state or political subdivision allows regulations that protect the health, safety, & welfare of citizens Port Arthur Towing Regulations 33 33 Ordinance No. 22-78 prevents wreckers from parking in various places within residentially zoned areas. Ordinance does not fall within the federal statute’s first exception related to non-consent towing operations Ordinance falls within the second exception that provides that a federal law shall not restrict the safety regulatory authority of a state with respect to motor vehicles. Courts have held that Congress’s intent for preemption was the economic regulation by states of these motor carriers, not regulations related to safety involving these motor carriers. Ordinance No. 22-78 is non-economic and intended for safety purposes based on police power of the city to protect health, safety, and welfare and Ordinance requested by the Port Arthur Police Department. Ordinance within the parameters allowed by federal law under safety exception 34 34 Ordinance No. 22-78 not be preempted by HB 2127 since it is a valid exercise of the express statutory authorization granted to political subdivisions to regulate tow trucks by Occupations Code Section 2308.201 AND Occupations Code Section 2308.208 allows for municipal or county ordinances regulating unauthorized vehicles and towing of motor vehicles 35 35 State law also provides that “the governing body of a municipality or the commissioners court of a county may adopt an ordinance that is identical to state law or that imposes additional requirements that exceed the minimum standards of state law but may not adopt an ordinance conflicting with state law (Occupations Code Chapter 2308) State law provides express authorization to local governments to adopt ordinances regulating unauthorized vehicles and towing of motor vehicles so long as the ordinances do not conflict with state law. Upon review of Chapter 2308, there is no section in the Chapter that conflicts with the provisions of Ordinance No. 22-78. Port Arthur Towing Regulations 36 36 State law provides a broad delegation of regulatory authority to local governments The statute also provides express authorization to local governments to adopt ordinances regulating unauthorized vehicles and towing of motor vehicles that include additional provisions not included in state law Ordinance No. 22-78 does not conflict with provisions of Texas Occupations Code Chapter 2308, so ordinance is a valid exercise of regulatory authority expressly provided the law Port Arthur Towing Regulations 37 37 Texas Special Sessions - 88th Texas Legislative Session - 38 38 Governor’s Authority: After the end of a regular session or before the start of the next regular session, the Governor may call a special session. Duration of Special Sessions: Can last no longer than 30 days. Special Session Topics: Legislators may only consider topics of legislation designated in the Governor’s special session proclamation. Limit on Special Sessions: There is no limit as to how many special sessions the Governor may call between regular sessions. Special Sessions in Texas 39 39 Dates: May 29, 2023 – June 27, 2023 Agenda: PROPERTY TAXES HB 1 (Rep. Morgan Meyer) - Relating to a reduction in the maximum compressed tax rate of a school district and additional state aid for certain school districts impacted by compression. Status: DIED SB 26 (Sen. Paul Bettencourt) - Relating to providing property tax relief through the public school finance system, exemptions, and limitations on taxes and providing franchise tax relief. Status: DIED BORDER SECURITY HB 2 (Rep. Ryan Guillen/Sen. Pete Flores) – Relating to the punishment for certain criminal conduct involving the smuggling of persons or the operation of a stash house. Status: DIED SB 2 (Sen. Brian Birdwell) - Relating to the creation of the criminal offense of improper entry from a foreign nation. Status: DIED SB 8 (Sen. Brian Birdwell) - Relating to measures to address public safety threats in this state presented by transnational criminal activity, including by establishing a Texas Border Force. Status: DIED Special Session #1 40 40 Dates: June 27, 2023 – July 13, 2023 Agenda: PROPERTY TAXES SB 2 (Sen. Paul Bettencourt/Rep. Will Metcalf) - Relating to providing property tax relief through the public school finance system, exemptions, limitations on appraisals and taxes, and property tax administration. Status: PASSED SB 3 (Sen. Paul Bettencourt/Rep. Will Metcalf) - Relating to the amount of the total revenue exemption for the franchise tax and the exclusion of certain taxable entities from the requirement to file a franchise tax report. Status: PASSED HJR 2 (Rep. Will Metcalf) - Proposing a constitutional amendment to authorize the legislature to establish a limit on the maximum appraised value of real property other than a residence homestead for ad valorem tax purposes. Status: PASSED Special Session #2 41 41 Started yesterday, October 9 (30 Days) Issues on the Governor’s Call: education freedom (education savings accounts/vouchers) border security (immigration reforms) public safety (Colony Ridge matter) ending covid restrictions (private employers) Special Session #3 42 42 Questions? 43 Thank you! 43