Brian Christian Consulting

A friend recently asked me an interesting question–what will happen to the next Regular Session of the Texas Legislature if we are still dealing with the COVID-19 Pandemic? Now that is something to consider. Let us engage in some speculating.

To start this thought experiment, it is helpful to have a baseline understanding of how the “Legislative Department” is set up in Article 3 of the Texas Constitution. It is here that we are told that the Senate shall have 31 members, the House of Representatives 150. The Constitution also prohibits the Senate or House from adjourning for more than three (3) days without the other’s consent, establishes the 2/3 quorum requirement, and, crucially for this piece, prescribes that the Legislature shall not meet in Regular Session for greater than 140 days. Notice that that is a maximum duration, not a prescribed duration. The Legislature does not have to meet for 140 days.

The only timeline prescribed in the State Constitution is worth a direct quote:

When convened in regular Session, the first thirty days thereof shall be devoted to the introduction of bills and resolutions, acting upon emergency appropriations, passing upon the confirmation of the recess appointees of the Governor and such emergency matters as may be submitted by the Governor in special messages to the Legislature. During the succeeding thirty days of the regular session of the Legislature the various committees of each House shall hold hearings to consider all bills and resolutions and other matters then pending; and such emergency matters as may be submitted by the Governor. During the remainder of the session the Legislature shall act upon such bills and resolutions as may be then pending and upon such emergency matters as may be submitted by the Governor in special messages to the Legislature.

So, the Constitution tells the Legislature what it can do during its first 60 days, though there are various exceptions, most notably action concerning emergency items assigned by the Governor. Beyond that, the Legislature has constitutional flexibility, so long as the regular session doesn’t exceed 140 days. Special sessions are another matter, and you can read my article about those here.

It is often said that the only bills the Legislature must pass are the budget and the redistricting plans. The constitution specifically requires the latter be done the first Regular Session after the census. If the Legislature fails to pass redistricting plans during that Regular Session, however, the task falls to the Legislative Redistricting Board. That board is made up of the Lieutenant Governor, the Speaker, the Attorney General, the Comptroller, and the Land Commissioner. It must meet within 90 days of the Legislature’s adjournment and must get the apportionment done within 60 days after that meeting.

So, given that baseline, how could things play out?

Let’s start with redistricting (a nifty summary of how it’s supposed to work can be found here). The Census Bureau has announced that the various means of counting (online, in-person, etc.) will continue beyond their original Summer deadlines and well into the Fall. This will delay the final tabulations, perhaps into the Summer of 2021, which will require almost all states to adjust their timelines for map drawing, candidate filing, etc.

In Texas, that timing puts us outside of our Regular Session. How that circumstance will flange up with the state constitution’s prescribed timeline remains to be seen. Will the default be that the task will just shift to the Legislative Redistricting Board, based on a strict reading of the constitution? Or, will there be some way for the first-round of map-drawing to somehow be done during a special session? I reckon the only certainty now is that the process, and the maps themselves, will eventually be thrown to the courts to sort out.

As for the structure of the Regular Session against the backdrop of the Pandemic and the potential for continued social-distancing measures, my sense is that the Legislature and the Governor have more flexibility.

Remember first that the Legislature does not have to meet for all 140 days. Since 1965, all Regular Sessions have gone that long, but as recently as 1963, the Legislature adjourned early (137 days). Our history has numerous examples where they met for 120, or even 60 days. Quick note: they have gone beyond 140 days a handful of times, but that was in the 1940s and 1950s, and since our context here is the Pandemic, I wouldn’t imagine they’d extend a Regular Session.

Given that they can meet for a duration less than 140 days, and that the Governor can declare emergency items (thereby going around the 60-day timeline noted above), I can envision a scenario where the Regular Session somewhat resembles a Called Session in speed and breadth. The Governor could declare emergency items, such as the budget, supplemental appropriations bills, and COVID response bills, so that the appropriate jurisdictional committees can get to work right away. The two chambers could agree to grant one another permission to adjourn for more than three days, allowing most of the members to socially distance elsewhere if needed.

Access from the outside could also be controlled. Large school tours, “Capitol Days,” and Legislative reunions, fixtures of Regular Sessions, could be prohibited. The committees that do meet could limit attendance and figure out how to hear from witnesses. And, the usual groupings of lobbyists in the Capitol and the Extension would be noticeably smaller and likely subject to limits on congregating.

Finally, the subjects taken up by the Legislature could also be limited to the emergency items declared by the Governor. This bit could be tricky, as all members have legislation they would want to file. Outside influencers would also have their agendas to promote. These facts admittedly make the scenario I’m outlining here a little wobbly. There would, after all, be tremendous pressure to either add “emergency” items or open things up to all subjects. But, I believe it is at least within the realm of the possible that the line could be held to allow the Legislature to finish the most urgent matters as quickly as possible.

So, these types of measures would allow the daily population of the Capitol to be kept relatively small, helping to ensure social distancing. The full bodies could also meet less frequently and only when an emergency item bill is up for consideration.

It would also likely mean that there would be at least one, and likely more, special sessions. Again, the Governor would be in the driver’s seat in terms of setting the agenda, so this may shift a great deal of attention toward that office with pressure for subjects to be added to any call.

And what of the budget, considering the double-whammy of the Pandemic and the state’s fiscal condition? As noted above, perhaps it could be considered an emergency item during the Regular Session so that it can be filed, considered, and voted on much more quickly than usual. There is another scenario, however, and history may serve as a guide.

In 1991, my first session, the state faced another budget shortfall. State leadership (Richards, Bullock, and Lewis, with help from Sharp) made the conscious decision to NOT write the budget during the Regular Session. This gave Comptroller Sharp time to complete an all-level review of state fiscal and governmental structures for money-saving ideas and then recommend changes and efficiencies.

The First Called Session that year convened on July 15, 1991. Over the course of an extremely intense 30 days, the Legislature considered a budget, a tax bill (though, even back then, it barely passed the House, 80-68—I was in the gallery for the vote, and it was a close call), and several governmental reform bills, all of which were interlocked and had to pass for the numbers to foot.

Might the Legislature consider a similar approach in 2021? Perhaps waiting would give the state time to go back to agencies for more efficiencies. It might allow time for some more benefits of any economic recovery to accrue, allowing for a better estimate of revenue. Waiting might also make conducting a limited Regular Session, as outlined above, somewhat simpler.

Of course, there are numerous other ways this could play out. It may even be unnecessary to monkey with the Regular Session (wouldn’t that be nice). But, setting aside this thought-experiment, I think it is quite clear that the next several months will have to be carefully and methodically plotted out in order to ensure a safe environment for members, their staff, and the public. This will require the presumptive Speaker to be known very soon after election day (though this could be a pretty tall order if control of the House switches), and then for the State’s leadership to develop a unified plan of action in advance of session convening so that everyone knows what to expect.

While all of this is uncharted territory, it would neither be impossible to adjust nor the end of the world if we had to. We can adapt. We’re Texans after all.