It’s the end of May in an odd numbered year. In Texas politics that always means good news and bad news. The good news is that the Texas Legislature has adjourned. The bad news is that there is always the possibility that the Governor may call them back for a special session. In fact that happened this year before I could get this story to press, Governor Greg Abbott called a special session, to focus on “property tax relief” and border isses. Even more menacingly the Governor said he might call multiple special sessions. That means any of the bills that didn’t make it could be reintroduced, but only if they fall under the charge the Governor assigns to a special session.
Mainstream media outlets are rightly generating a lot of copy about the special session and the regular session that just ended; including high profile bills and the impeachment of Attorney General Ken Paxton. Here, let’s zoom in on legislation aimed at local governments. That sort of thing used to be called “Austin bashing” because it was primarily generated by developers unhappy with Austin’s water quality and other environmental or neighborhood protection ordinances. That was before other Texas cities became Democratic Party strongholds and Republican state officials began taking aim at them, as they particularly did at Houston and Harris County this session.
It was also before Austin “progressives” began to march in lockstep with local developers and right wing Republicans in the legislature on development issues. I wrote about that strange confluence in April. The most active Republican on this front is Senator Bryan Hughes of Mineola. Hughes became famous as the lead sponsor of Texas’s virtual abortion ban which he steered to passage in the 2021 session. This time around he, and other Republicans, filed bills that sought to impose on localities versions of the rules and code changes that “progressives” on the Austin Council tried, but failed to pass in Austin. As we have covered before, the Austin Council’s efforts failed because a court ruled they were breaking state law by refusing to notify property owners and denying them petition rights. Oh yeah, some Republicans filed legislation that would have weakened the petition laws.
To be clear, no Austin Council Member or Austin City staff member came out in official support of the bills filed by Republicans. It instead went like Ryan Autullo described recently in the Austin American-Statesman, “The city’s official stance is that it opposes these bills, as Austin generally resists ceding control to the state on any local decision. But, after decades of failure by the City Council to update its 1980s land use code, some in City Hall welcome this GOP-led effort to build more homes.” (The same article by Autullo describes other bills aimed at Austin, that we don’t have room to cover here today; like a bill that could result in the Lost Creek neighborhood being able to disannex from Austin.)
Once the smoke cleared, none of the bills that reflected the Austin “Progressive”-State Republican confluence passed. Most were defeated in the Texas House, after efforts against them by a statewide coalition that included members of the Austin Neighborhoods Council. The opposition also included important and factual testimony from the City of Dallas and from representatives of other Texas cities. Members of the American Planning Association also testified and wrote letters against the bills.
I will provide more details on the fate of these bills further down in the story. First though let’s take a look at an anti-local government bill that did make it to the Governor’s desk. (He hadn’t signed it yet at press time, but, according to other media outlets, Abbott earlier expressed support for the concept.)
The Local Government “Death Star” Bill
I’m talking about what is commonly known as the “preemption bill,” that is the state preempting local governments and making rules for local governments themselves. An opponent of the bill evidently named it the “Death Star Bill,” and some Republican gleefully welcomed the name
The lead author of the bill was Representative Dustin Burrows of Lubbock, and Brandon Creighton of Conroe sponsored it in the Senate.
The intent of this bill seems to be to forbid local governments from having stronger rules, laws or ordinances than the state has. Some media outlets reported it that way and it probably captures the spirit of the bill. The actual text reads a little bit differently though: “Unless expressly authorized by another statute, a municipality or county may not adopt, enforce, or maintain an ordinance, order, or rule regulating conduct in a field of regulation that is occupied by a provision of this code.” So that could be read as a “municipality or county” can not even make any rules or regulations in areas covered by these codes. That will be presumptively be worked out over time.
The text of the bill lists a number of areas that specifically fall under it:
- “Agriculture Code;
- Business & Commerce Code;
- Finance Code;
- Insurance Code;
- Labor Code;
- Local Government Code;
- Natural Resources Code;
- Occupations Code;
- Property Code.”
That’s a lot of codes that cover a lot of ground. We won’t attempt to delve any further into what HB 2127 might cover. There will be plenty of time for that to be figured out. That’s because HB 2127 is intended to be enforced through potentially innumerable lawsuits brought by private citizens and private interests who feel they have been harmed by particular local regulations. That’s right, it depends on lawsuits from members of the public, very similar to 2021’s draconian abortion bill.
The law itself might be subject to lawsuits (assuming Abbott signs it). For instance Andrew Schneider with Houston Public Media, reported on this exchange on the Senate floor between Senator Sarah Eckhardt of Austin and the bill’s lead Senate sponsor, Senator Creighton of Conroe:
“The bill would undermine the Home Rule provision of the Texas Constitution, affecting more than 350 cities, including Houston, Dallas, and San Antonio. State Senator Sarah Eckhardt (D-Austin) drew an admission of this from Creighton.
‘A Home Rule city can do anything that isn’t specifically prohibited by statute. You’re aware that that’s the interpretation of that constitutional (provision),’ Eckhardt said.
‘That’s the difference in a Home Rule city and a General Law city, correct,’ Creighton said.
‘So, your bill changes that interpretation of the Texas Constitution, doesn’t it?’ Eckhardt asked.
‘Correct,’ Creighton said.
Eckhardt then asked why this didn’t require an amendment to the Texas Constitution. Creighton denied such an amendment was necessary.” [End of passage from Houston Public Media]
A constitutional amendment would have to be approved by voters in a statewide election. The failure to take this step could provide the grounds for a lawsuit. There are doubtless other possibilities. So stay tuned.
Eckhardt also summed up the bill in a statement, “The state has largely abdicated its role in governance. In that absence, local governments are called upon to step forward and address public policies that seek to address health and safety, liveability, and environmental protection. Yet again and again, it seems like Texas conservatives would rather be the party of big government in which the state — and the state alone — dictate what is good local policy and not the individual Texans living in these cities and counties.”
Perhaps though there’s something good that will come from HB 2127. Since this legislation will affect people and local governments in localities all over Texas, maybe folks all over the state will begin paying attention to what their legislators do and throw some of them out of office in the next election.
Sorry. I just like to throw a little joke in now and then to lighten the mood.
Back to the Progressive-Republican Alliance
Now, let’s go back to the bills that united legislative Republicans and Austin’s “progressive” Council Members in a common cause. After I published the previous article on this topic I spent some time reflecting on what might have brought these disparate politicians together to embrace the same policies. Perhaps it’s a lack of imagination on my part, but the only two possibilities I could come up with were:
- both groups are really passionate about affordable housing; or
- they’re both doing developers’ bidding for them. (If anyone else has any possibilities then email me or post it somewhere I might see it.)
Skyscraper Bill: Called the skyscraper bill by opponents, SB 491 from State Senator Bryan Hughes of Mineola (of abortion law fame as mentioned earlier) would have prevented cities with populations of more than 725,000 from using compatibility standards, or any other regulation, to limit building height; unless that proposed building is closer than 50 feet to a single family property. The bill would not affect Hughes’ hometown of Mineola. A companion bill, HB 2198, was carried by Representative Cole Hefner in the House. Hefner also represents Mineola and the rest of a District north of Tyler and Longview. The bill was tabled in the House and never made it to a vote in the Senate. Sarah Eckhardt, by the way, voted for the bill in committee, saying she did so because Austin had been unable to pass changes to its Land Development Code.
Small Lot Bill. Then there’s Houston area Republican Senator Paul Bettencourt’s small lot bill, SB 1787. A companion bill in the House was carried by Republican Craig Goldman of the Fort Worth area, HB 3921. Those bills would have prevented cities and towns in counties with populations over 300,000 from requiring minimum lot sizes “wider than 20 feet” or “deeper than 60 feet.” Plus, no city in such counties could limit lot size in a way “that results in (allowing) fewer than 31.1 units per acre.” This was a death star aimed at any future single family housing in Texas; something not long ago considered to be integral to the American Dream, but now anathema to New Urbanists, Austin’s “progressive” Council Members, and evidently Republicans — Bettencourt and Goldman anyway. The two bills made it out of committees in both the House and Senate, but neither made it to a floor vote.
Bill reducing valid petition percentage. This bill was meant to increase the percentage of affected property owners near a zoning change that are needed to establish a “valid petition.” Under current law, if opponents of a proposed zoning change obtain petition signatures from owners of 20% of property within 200 feet of the proposed change, then a three-fourths super majority is required to pass the zoning change. That is called a “valid petition.” This was a critical factor in Austin’s Land Development Code battle because there were seven votes to pass and four against. The Council majority rolled through two readings on seven to four votes. Then a judge and appeals court ruled it was illegal for them to ignore the valid petition law. Thus, nine were then required to pass the LDC rewrite. Mayor Steve Adler and his allies chose to not do anything rather than compromise.
HB 1514, originally filed by Republican Justin Holland of Rockwall, would have increased the percentage of nearby property owners needed from 20% to 50%. Holland dropped the bill. Democrat Carl Sherman of DeSoto, south of Dallas, stepped in to carry it (as HB 4637). The bill never made it out of committee. People working in opposition to the bill say Sherman agreed to take it down after letting opponents make their case to him.
Accessory Dwelling Unit Bill: Then there was the ADU bill, sponsored by Hughes in the Senate and Holland (mentioned earlier) in the House (SB 1412 and HB 2789 ). ADU stands for accessory dwelling unit, also widely known as a “granny flat.” That’s when a second unit is built on a single family property, a smaller unit where a Grandmother could live, or a son or daughter just starting out on their own, or a renter or two. Or, as an official analysis of the bill explained, “ADUs can help fill the desperate need for housing faced by students, caregivers, extended families, teachers, first responders, traveling professionals, and empty nesters, to name a few.”
So who could be against that? In fact making ADUs easier to build is an item that sometimes bridges even the gap between new urbanists and neighborhood activists. That is widely considered, however, at least by the neighborhood side, as a matter for local governments to decide how to regulate, on a local basis, with input from local citizens.
These two companion bills would have allowed ADUs on every lot in the state that is zoned single family or duplex as well as lots that are “not zoned.” There was one pretty major exception clause, however. It stated that the bill: “does not supersede, preempt, or apply to a historic preservation rule, deed restriction, or homeowners association rule that limits or prohibits the construction of an accessory dwelling unit.” In particular the exemption for subdivisions with homeowners associations left a lot of suburban — read Republican and often wealthy (sometimes gated) — areas unaffected by the bill.
Regulating where and on what kind of lots ADUs can be built on has always been a responsibilty of local governments; who are naturally much more familiar with their towns and neighborhoods that legislators from all over the state.
After saying that ADUs could be built on any single family or duplex lot in the state (and unzoned lots), the bill then listed off a number of circumstances in which the locality could not impose regulations. These prohibitions on local control constituted something of a laundry list of regulations that various localities might or might not have. This combination raised a lot of concerns, especially in the House.
The bill passed the Senate 30 to 1, with only Senator Tan Parker, a Republican from Flower Mound near Dallas voting no. The bill, however, ran into difficulty in the House. There, the ADU bill failed on a close third reading vote with 68 in favor and 70 against. It was a bipartisan vote though Republicans voted heavily yes, 67%, and Democrats even more lopsidedly no, 76%. Overall 55 Republicans voted yes along with 13 Democrats. Of the prevailing 70 no votes, 27 came from Republicans and 43 from Democrats.
Geographic Patterns in the House Vote on ADUs
An examination of the geographical voting patterns in the House revealed a pattern of no votes among those representing the central areas of major cities with this pattern often extending to close-in suburbs. The yes votes were generally in exurban (further out areas, but largely urbanized) and rural areas. Doubtlessly, a major reason for this split was that many outlying suburban and exurban areas were protected by the exemption for areas covered by homeowners associations, while more central areas were not.
For instance Houston’s block of no votes stretched from FM 1960 and Spring in the north to Missouri City in the south. Two representative within this stretch voted yes, but there was still a line of no votes stretching from Spring to Missouri City.
Black representatives seemed to particularly vote no. This is particularly significant because New Urbanists — who vociferously backed the ADU bill and the others — maintain that their policies are aimed at bringing racial justice. Nonetheless, six of the Black representatives in the very diverse Houston delegation voted no; as did five whites, two Hispanics and all three Asian Americans in the delegation.
Statewide, 14 members of the Texas Legislative Black Caucus in the House voted no on the ADU bill. The only two yes votes among Legislative Black Caucus members were Republican Charles Cunningham of Humble and Democrat Sheryl Cole of Austin. Cole was the only Black Democrat in the House to vote for the ADU bill. Representatives Harold Dutton and Rhetta Bowers did not vote.
There were similar patterns of central city and close-in suburbs versus exurban and rural areas around other major cities. Dallas – Fort Worth had a pattern much like Houston, with south Dallas representatives and most representatives of southern suburbs voting no.
In San Antonio only Diego Bernal, a central city representative voted yes, while the other San Antonio representatives — Trey Martinez Fisher, Barbara Gervin-Hawkins, Josey Garcia and Ray Lopez — voted no. They were joined in the no column by Mark Dorazio and Steve Allison who represent northern suburbs and San Antonio adjacent Hill Country.
Austin’s central core of no votes was smaller, in area and numbers, than the other major cities. Voting no were Gina Hinojosa of central Austin, Donna Howard (west and central), Lulu Flores central East and Southeast) and Vicki Goodwin (Oak Hill and a decent chunk some of the Hill Country just west of Austin). As noted above, Sheryl Cole (central east and northeast) voted yes, as did Democratic suburban reps James Talarico and John Bucy. Also voting yes were Hays County representatives Democrat Erin Zwiener and Republican Carrie Isaac. Ellen Troxclair, usually not short an opinion on anything, didn’t vote on this one (her district is to the west on the map below).
There were exceptions to the pattern of central city and close-in suburb representatives voting no and exurban and rural representatives voting yes. For instance Republicans John Smithee and Four Price, who represent the two furthest north districts in the Texas Panhandle voted no. Both of their districts are mostly small towns and rural areas, but Smithee represents roughly the northern two-thirds of Amarillo.
That’s all for now. Here’s hoping that all the legislators have a safe trip home very soon and don’t have to come back to Austin for a long time.
(Photo of Capitol at top by Adela Mancías)
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