By Royce Poinsett
The 2021 Texas legislature furnished enough compelling storylines for several sessions. Among other endeavors, legislators convened warily during a pandemic, responded to a historic winter storm that overwhelmed the state’s electrical grid and balanced a strained state budget with the help of billions of dollars in just-in-time federal relief.
But the main narrative of the session was, somewhat unexpectedly: the most socially conservative session in a generation. Republican legislators pushed a flood of ideologically charged measures through the process and onto the governor’s desk, surprising most observers (probably including themselves).
Observers had a right to be surprised, as Texas Republicans have charted a meandering legislative course over the past three sessions. In 2017 Republicans orchestrated a socially conservative “bathroom bill session.” But they then found the ensuing 2018 elections far too competitive for comfort. So during the 2019 session Republicans moderated their tone and agenda, focused on “meat and potatoes” policy issues, and sidestepped debates on the most divisive of social issues.
That moderated 2019 session yielded 2020 electoral gains. Despite a full-scale, nationally funded Democrat campaign to “turn Texas blue,” Texas Republicans handily won all statewide contests and maintained solid control of the Texas Capitol. Observers can be forgiven for expecting that Republicans would stick to their moderated, winning course.
But the Republican base in Texas did not emerge from the 2020 election cycle merely victorious. They also emerged ideologically emboldened and expectant, communicating loudly and clearly that they would not be satisfied with any old “meat and potatoes” legislative agenda. Republican voters wanted red meat, lots of it, the rarer the better.
Republican legislators complied, pushing a wide-ranging and controversial agenda that included election law reforms, permitless handgun carry measures, abortion restrictions, “critical race theory” curriculum bans, transgender youth constraints, national anthem requirements at sports events and more.
Texas Democrats gamely resisted but were largely overwhelmed, as measure after measure passed each chamber on largely party-line votes. Democrats (both in Texas and nationwide) were most affronted by the now-famous HB 7, a proposed sweeping change of Texas election laws promoted by Republicans as “election integrity reform” but denounced by Democrats as voter suppression. In the final days of the session, frustrated House Democrats finally deployed their “nuclear option” to kill that bill and several others, dramatically walking out of the chamber and breaking quorum for the first time since 2003.
The Democrats’ victory may be short-lived. Governor Greg Abbott quickly called for a 30-day special session beginning July 8 to force continued work on election law changes, public school curriculum and bail reform (and any other issues he might add to the session’s “call”). And he controversially “line item vetoed” appropriations for the legislative branch, to incentivize Democrats to return to Austin to restore that funding. Look for coverage of the upcoming special session in the October issue of the Texas Bar Journal. The legislature is expected to return for yet another special session in the fall to conduct once-a-decade legislative and congressional redistricting.
Looking forward to the 2022 primary elections, Capitol observers can expect a lively campaign season, with several Republican statewide leaders facing serious intra-party challenges for the first time in recent memory. In the 2022 general elections, Democrats will once again try to end Republican dominance in the state. And Texas voters will get to decide whether the most socially conservative legislative session in a generation was good politics or ideological overreach.
Major Legislation of the 2021 Session
Texas legislators filed more than 6,900 bills and enacted over 1,000 into law. Some of the most significant legislative action is summarized here.
State Budget. Legislators initially faced an $11 billion budget shortfall inflicted by the COVID-19 recession. But that shortfall vanished thanks to the mid-session influx of over $16 billion in federal COVID-19 relief funding, a surprisingly resilient Texas economy and rebounding oil and gas revenues. SB 1 enacts a two-year balanced state budget with $248.6 billion in overall spending, a 5% decrease from the prior biennium due to the federal largesse. Later tranches of the federal aid remain to be appropriated in a future special session.
Electrical grid. Responding to February’s Winter Storm Uri, the legislature enacted the largest reform of the Texas electricity system since the landmark deregulation legislation of 2005. SB 2 and SB 3 overhaul governance of the beleaguered Electric Reliability Council of Texas, and require market participants to “weatherize” certain facilities to handle extreme temperatures under rules to be promulgated by the Public Utility Commission and Railroad Commission. Under another package of bills (HB 1520, HB 4492, SB 1580) the state will securitize approximately $7 billion in private losses caused by the storm, spreading out these losses (and the resulting customer rate increases) over the next two decades.
Pandemic response. Proposals to limit the governor’s emergency powers during pandemics and other disasters had bipartisan support, but fell victim to infighting between the House and Senate. Instead, the legislature passed narrow measures banning public officials from closing places of worship (HB 1239) and gun stores (HB 1500) and requiring that patients in healthcare facilities be allowed clergy visits (SB 572) and family visits (SB 25), during future governor-declared disasters. SB 6 extends broad pandemic liability protections (both retroactive and prospective) against lawsuits arising from the current and future pandemics.
State vs. local control. In response to the national “defund the police” controversy, SB 23 requires local governments to hold an election before reducing law enforcement budgets, and HB 1900 provides that large cities who do make substantial cuts to police budgets could face financial penalties and disannexation elections. HB 1925 imposes a statewide ban on camping by homeless individuals in most public spaces.
Policing. Many bills were filed in response to the killing of George Floyd, and to the unrest that followed, but only a few passed. SB 69 bans the use of chokeholds by peace officers in most circumstances, and also requires officers to intervene to stop excessive force by other officers. HB 2366 raises penalties for interfering with or harming law enforcement.
Broadband access. HB 5 is bipartisan legislation that will finally establish a long-discussed state broadband plan and incentive program to help provide residential high-speed internet access to the estimated 5 million Texans who lack it.
Abortion. SB 8 is one of the most restrictive abortion laws in the country, prohibiting the procedure as early as six weeks into a pregnancy and creating a novel private cause of action allowing citizens to enforce the new law through lawsuits. The constitutionality of a similar Mississippi law will be considered by the U.S. Supreme Court this fall. HB 1280 will completely outlaw abortions in Texas if the U.S. Supreme Court ever overturns Roe v. Wade.
Guns. HB 1927 allows Texans to carry holstered handguns without a permit or training (termed “constitutional carry” by supporters), following the lead of 20 other states. Existing restrictions against certain people carrying handguns, and against the carrying of handguns in certain places, will remain in place, and most private property owners will still be able ban handguns on their property.
School curriculum. HB 3979 seeks to limit how public school teachers handle classroom discussions of certain concepts related to race and racism. The governor has stated his desire to further “abolish critical race theory in Texas” in the upcoming special session.
Transgender children. Democrats successfully fought legislation to mandate that transgender student athletes play on sports teams based on their sex at birth rather than on their gender identity. They also killed bills that would have banned gender transitioning hormone therapy, puberty suppression treatment and surgery for children younger than 18.
Marijuana. HB 1535 is a very modest expansion of the medical marijuana program to include research patients suffering from cancer or post-traumatic stress disorder. But the legislature again declined calls to legalize (and tax) recreational marijuana.
Gaming. The legislature rejected well-funded advocacy efforts to allow (and tax) casinos and sports betting in Texas.
New Laws That Affect Everyday Life
Readers might be pleased to know that the legislature took action on some legislation that was less ideologically charged.
Cheers. HB 1024 allows restaurants to continue selling “alcohol to go” even after the current pandemic ends. HB 1518 allows Sunday sales of beer and wine from stores beginning at 10 a.m. (as opposed to noon) and allows hotels to sell alcohol to hotel guests 24-7.
Tax-free Fido. SB 197 creates a sales tax exemption for the adoption of pets from nonprofit animal shelters and similar organizations.
Law students rejoice. HB 654 significantly weakens the “Rule against Perpetuities” in Texas, so much so that future Texas law students might not even be forced to memorize it. The new law requires that an interest in a trust, other than a charitable trust, must vest, if at all, not later than 300 years after the effective date of a trust. This former law student can’t quite remember what the prior rule required.
ROYCE POINSETT is a government relations attorney, registered lobbyist, and principal at Poinsett PLLC. He represents businesses and associations at the Texas Capitol, and is the immediate past chair of the Legislative and Campaign Law Section of the State Bar.