With Trial Pending, What Will Texas Legislators Do?

Hey, Texplainer: With a school finance lawsuit pending, is there anything lawmakers can do with the state's school finance system this session?

Two-thirds of Texas' public school districts are suing the state, arguing that they were so gutted by the $5.4 billion in budget cuts last session that the state has failed its constitutional duty to provide adequate public education funding.

Though a trial court decision is expected in February or early March, the case won't be resolved until the Texas Supreme Court weighs in — which probably won't happen until after the 2013 session ends in May.

State Rep. Jimmie Don Aycock, a Killeen Republican and member of the House Public Education Committee last session, said it is unlikely there would be any substantive legislative action before the Supreme Court issues a decision.

“I think many members are reluctant to walk out and make hard decisions and then find out after that that the court will not uphold the decision,” Aycock said. “That is a very uncomfortable situation for most members.”

Former state Rep. Scott Hochberg, D-Houston, who served on the public education committee, echoed that sentiment.

“There’s always a momentum to avoid hard votes,” Hochberg said. “I’m not aware of any situation where major changes were made during pending litigation prior to the court actually handing the decision down.”

Instead, the Legislature, depending on the ruling, will probably either convene a special session or deal with the court’s decision in the 2015 session.

But there's nothing that prohibits legislators from starting the budgetary planning process this spring, said David Thompson, a lawyer for a group of school districts suing the state.

“It doesn’t surprise me that they would want to wait and see the results,” Thompson said. “But it doesn’t mean they can’t create some preliminary options so when [the decision is available], they are ready to go.”

Lt. Gov. David Dewhurst last week urged lawmakers to set aside money in the budget for public education in case a ruling requires them to put more money into public schools.

If the courts finds the funding mechanism of public education unconstitutional, the Legislature must revisit school finance in the budget. And if the state does not comply with the court-ordered instructions, the Texas Education Agency would be blocked from giving money, Aycock said. “The lever is the ability to shut off funding to the schools so [legislators] don’t have to do exactly what the court says, but be within the boundaries set by the court,” Aycock said.

Thompson said schools have repeatedly sued the state over the years because Texas refuses to perform studies on its education system and to update its financing for its changing population. “They quit doing them because they didn’t like the answers,” he added. “They were consistently finding that it’s going to take more resources."

Some legislators have tried to permanently change the state’s responsibility to education by amending the Texas Constitution, but they have not gained traction. In the early 1990s, state Rep. John Culberson, now a Republican congressman from Houston, drafted an amendment to exclude courts from school finance matters by allowing lawmakers to determine adequate levels of financing. State Rep. Gary Elkins, R-Houston, offered an amendment last session, but it failed in committee.

Even though public education funding remains in limbo, Aycock said legislators would be able to focus on other important education issues, like testing, accountability and graduation plans.  

Bottom line: Legislators are unlikely to lay out a plan for public education funding until the Texas Supreme Court rules on the case this summer. Lawmakers may then gather for a special session to respond to the decision, depending on the court's ruling.

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