Last Week in the Legislature

By Kenneth Besserman
Director of Government Affairs and Special Counsel

September 15, 2021 

Special Session 3 and a Look Back at a Weird Regular Season

The dust is just settling after the tumultuous 87th regular session of the Texas Legislature and the two special sessions that followed during the summer. Now Governor Greg Abbott has called a third special session to begin on September 20, 2021. While the political and legal fallout continues following the sessions that just ended, the most partisan and controversial issue of them all – redistricting – is about to become center stage.

Legal Challenges Afoot

As we all have seen and heard, recently passed Texas laws have been front and center in the news of late. First, the controversial fetal heartbeat bill, Senate Bill 8 which bans abortions in most instances when a fetal heartbeat is detected, was left in place by the U.S. Supreme Court until a properly challenged case can make its way through the legal system. In the meantime, the U.S. Department of Justice has sued Texas on the grounds that SB 8 unconstitutionally infringes on a woman’s right to constitutionally protected rights and, furthermore, that SB 8 is unconstitutional on supremacy grounds. That case has only recently been filed and it will take some time to make it through the trial and appellate process before the Supreme Court has an opportunity to weigh in.

Senate Bill 1, the election integrity bill that was passed during the second special session, was recently challenged by a number of civil rights and voter protection groups. That legal challenge is still in its formative stages, and it is not clear if there will be injunctions imposed or whether the law will remain in force while the legal challenges continue. What we do know is that there will be a lot of ups and downs before we know whether SB 1 withstands constitutional scrutiny.

Even before the third special session commences, there has been a lawsuit filed by two Democratic senators challenging the validity of the legislature to address redistricting at this time. The challenge is based on Article III, Section 28 of the Texas Constitution, which says the Texas Constitution requires the legislature to redistrict state senate and state representative districts during the first regular session following publication of the decennial census. The issue at hand is whether the legislature can take up redistricting now or must wait until the 2023 regular session. The census numbers were not released until summer of 2021, after the 2021 regular session ended, making 2023 the first regular session after release. The litigants have asked the Texas Supreme Court to weigh in on this issue.

Third Special Session Preview

The third called special session is set to address redistricting, appropriations for the federal funding received under the American Rescue Plan Act, transgender students in high school sports, the ability of state and local governmental entities to mandate COVID-19 vaccinations, and legislation addressing the tethering, care and shelter of dogs left outdoors. It is also very likely that items will be added to the special session call once the legislature is in session.

There will be more to address on the third special session once the legislature convenes. Watch for information in future Last Week in the Legislature columns and Facebook Live.

A Weird Regular Session

While the regular session and special sessions have been mostly somber affairs dealing with issues of ERCOT/power grid reform, abortion, critical race theory, open carry of guns, transgender issues, voting integrity, defunding the police, and other controversial issues, the Texas Legislature is also known for filing, and sometimes passing, some out of the ordinary bills. Here are just a few.

HB 1518 – Texas has finally passed legislation that will expand the hours for the sale of wine and beer from 10 a.m. to midnight on Sundays. While package stores (liquor stores) will not be open on Sunday, other retailers like grocery stores and convenience stores may now sell beer and wine on Sunday morning. Prior law only allowed beer and wine to be sold after noon on Sundays.

HB 1535 – This legislation will slightly expand the use of medical marijuana in Texas to include those who suffer post-traumatic stress disorder and cancer patients and raises the dosage limit of THC from .5% to 1%.

SB 4 – The Star Spangled Banner Act. This bill requires professional sports teams in Texas that have state contracts to play the national anthem at the start of every game. This issue was raised last year when some teams did not play the national anthem in protest of the George Floyd killing and other civil protests around the country.

HB 1024 – The bill makes it permanent that restaurants can now sell wine, beer and mixed drinks to go with food pickup and delivery.

HJR 133 – Gambling in Texas. The issue of authorizing casino gambling in Texas gets raised every session. In 2021, a number of casino groups and pro-gambling groups spent tens of millions of dollars on lobbyists to try and garner some legislative support. The legislation did not make it out of committee, once again. The efforts have now shifted to a highly visible TV, radio and Internet campaign to try and boost public and legislative support. The issue will be back again in 2023.

HB 1250 – This bill would have created the Selana Quintanilla Perez Holiday in Texas to commemorate Tejano music in Texas. It failed to pass.

HJR 100/SJR 55 – This constitutional amendment would have affirmed a person’s right to use cryptocurrency as a means of exchange. Texas has a long history of amending the Constitution and making it a very long document.

SCR 78 – This resolution, which passed, designates the Bowie Knife as the “Official State Knife of Texas.”

SCR 9 – This resolution, which also passed, names San Marcos as the “Official Mermaid Capital of Texas.”

HB 1758 – This legislation, which became law without the governor’s signature, makes it a crime for a person to use a drone that is equipped with a chemical dispensing device, an explosive weapon, an improvised explosive device, or a firearm.

HB 4554 – This bill, which did not pass, would have made Dr. Pepper the official state drink of Texas.

HB 1359 – This bill would have included a non-binding referendum to the citizens of Texas asking if they want to secede from the United States and form an independent republic. This bill has been filed in past sessions but never gets any traction.

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