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Texas Legislature 2019

Analysis: Skirting the rules in the Texas Senate — but doing it by the book

Sometimes, the way around the established traditions of the Texas Senate is to be found in the least obvious place: the Senate's own rulebook.

The Texas Senate during the 86th legislative session. Jan. 9, 2019.

Texas Legislature 2019

The 86th Legislature runs from Jan. 8 to May 27. From the state budget to health care to education policy — and the politics behind it all — we focus on what Texans need to know about the biennial legislative session.

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Messing with rules in an unusual way is not the same thing as cheating, and working the rules might be the only way to get a property tax bill through a Texas Senate that just barely approves.

There are 31 senators. It ordinarily takes 19 of them to bring up legislation for consideration. At the moment, sponsors don’t have the 19 votes to bring up their high-priority property tax bill. While they’re trying to get the votes, they’re also looking for ways to pass their bill with fewer than 19 senators. That leads to the conversation about rules — specifically, about the rule governing the order in which bills are considered.

Senate rules say bills have to be considered in the order they were received from committees. That’s known as “the regular order of business.” Going out of order — “outside the regular order of business” — requires a three-fifths vote to suspend the rule. (That’s right — there are specific rules on how to break the other rules.)

In practice, a Senate committee passes an inconsequential bill at the beginning of a session and then leaves it in place to block consideration of legislation that doesn’t have at least 19 votes. Without that blocker bill, senators would consider legislation in the order received — first in, first out — and wouldn’t have to suspend their rules to take things out of order.

This year’s blocker is Senate Bill 409, “relating to the creation, purpose, implementation, and funding of the County Park Beautification and Improvement Program.”

Seems urgent, doesn’t it?

The bill behind it in order is Senate Bill 2, “relating to ad valorem taxation.” It would require automatic elections seeking voter approval for any local property tax revenue increase greater than 2.5 percent. Local governments — cities and counties, mostly — have been leading the resistance to that idea. Two years ago, legislators couldn’t settle the differences between the House’s 6 percent trigger and the Senate’s 4 percent. This year, with the governor, the lieutenant governor and the speaker promoting it, there’s more opposition to the 2.5 percent trigger than to the overall idea.

It's a top priority of the leadership and popular with a lot of voters and taxpayers. But it’s not popular with enough senators.

Once legislation is under consideration on the Senate floor, it needs only a simple majority — 16 votes — to pass. So here sits the property tax bill. It might have 16 votes. It doesn’t have 19 votes. What’s a bill sponsor to do?

Cajoling other senators helps. Sen. Paul Bettencourt, R-Houston, is the author of SB 2 and a seasoned and energetic property tax warrior. He’s talking to senators about that 2.5 percent growth rate and asking them to make other suggestions if they don’t like it.

“‘Just say no’ is not working,” he says.

Even at this relatively early date in a session with 14 weeks to go, he’s telling senators that failure to pass a bill now will just force a special session, when “16 votes is all you need.”

If you were in Bettencourt’s shoes, with a bill early in a legislative session that, for various reasons, didn’t have the support of 19 state senators, you might despair. Or you might look at the number of bills eligible for consideration, find that your centerpiece property tax bill was second in line, and decide to both follow your rules and mess with regular practice.

You might pass the inconsequential blocker bill (or vote it down, for that matter) and then move to the next thing in the regular order of business: the property tax bill.

It would be easy. It would remove the obstacle of that three-fifths majority and lower the number of needed votes to 16 from 19. You could always come in right after that and pass a new blocker to reinstate the normal practice of getting a three-fifths majority before starting legislative debates.

It might seem like a dirty, rotten trick to those who are counting on blocking passage of the property tax bill by blocking its consideration. If senators pass the blocker bill and take up the tax bill, the opponents are going to need a real majority if they want to kill this thing.

But they won’t be able to say they were cheated. It’s in the rules.

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