Analysis: Texas Legislative Review Process in Need of a Review of Its Own

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When the Texas Department of Transportation was up for its periodic legislative review in 2009, the must-pass bill became a magnet for every legislative idea that had not already passed on its own.

“There were, like, 200 or 250 amendments,” recalled House Speaker Joe Straus, R-San Antonio, in an interview last week. “I couldn’t even see the parliamentarian for the stacks of amendments everywhere. It was just ridiculous.”

He has a pretty good memory: An aide looked it up and found there were 222 amendments. The most important thing to remember, however, was that after months of work on one of the state’s biggest and most important agencies, that so-called Sunset legislation failed.

“It makes a mockery of the whole Sunset process, and it makes me question whether or not it still serves a useful purpose,” Straus said. “So, let’s give it a try, to try to refocus and instill some discipline, and see how we do.”

Many of the reviews done by the state’s Sunset Advisory Commission go more or less as intended — about 75 percent of their recommendations have made it into law, by Sunset’s count. The commission periodically recommends changes in how agencies operate, revisions to their missions and even whether they should continue to exist.

Two dozen agencies are on the list for the next legislative session, and the appointed Sunset Commission and the agency that supports it are already at work. Straus named three members — including Rep. Larry Gonzales, R-Round Rock, who will serve as chairman — to the commission last week.

In spite of Sunset’s successes, the fate of that 2009 Department of Transportation bill was entirely unsurprising. It’s a big agency with a broad mission, making it vulnerable to hijackers in the lobby.

State agencies must win legislative permission every 12 years to remain open.

Failures like the TxDOT bill that choked to death on amendments in 2009 are common enough, however, that lawmakers regularly end their sessions with “safety net” bills. Those are designed to keep the otherwise-dead agencies alive for another day.

Straus, in his quiet way, has had enough of that. He — and he’s not the first to try this — would like to restrict the lobby runs on Sunset bills.

Generally speaking, the hijackers have one of two agendas. The first are regulated industries and other interests that want to revise an agency’s operations or mission in a way that benefits them. An example would be oil and gas industry lobbyists who have battled against moving regulatory hearings from the Texas Railroad Commission, where they have a lot of clout, to the State Office of Administrative Hearings, where they don’t.

“From my observation, when a Railroad Commission Sunset bill doesn’t pass, it’s certainly a lobby victory,” Straus said. “I don’t think it’s a member problem — I think it’s a lobby thing. A lot of people get hired in the lobby to work these things, especially when it involves an agency like the Railroad Commission, or TDI [the Texas Department of Insurance] or TxDOT or some of those others.”

That said, none of those lobby provisions can get added to legislation without the help of the legislators. They’re the only voters in the process.

The second group is trying to save zombie legislation that can’t survive on its own by attaching it to must-pass Sunset bills.

“They try to attach other bills that they can’t pass otherwise,” Straus said. “The end result is that the Sunset bills, they fall apart, they crumble.”

Every bill has a subject line — a caption — and parliamentary rules require that everything added to a bill fit within the subject described in the caption. That 2009 transportation bill, for instance, had this caption: “Relating to the continuation and functions of the Texas Department of Transportation, including the transfer of certain functions to the Texas Department of Motor Vehicles.”

“Continuation” is the live-or-die part. “Functions” and the name of the agency are the magnetic parts that made a surprising number of those 222 amendments appropriate, or “germane” for consideration.

It’s not just transportation. The Railroad Commission, up again this year, is a perennial. So is the Texas Department of Insurance, although legislators finally got that one completed in 2011.

Here’s a doozy: The last time the state Legislature passed a Texas Education Agency sunset bill was more than 25 years ago. The sponsor was then-Rep. Bill Hammond, R-Dallas, who now heads a business trade group. The Sunset Commission staffer who worked on it was a young Ken Levine, who is now the agency’s executive director.

Education isn’t on Levine’s list this year, but the Department of Transportation is back. So are the Railroad Commission, a bunch of agencies that regulate medical professions and the State Bar, which regulates lawyers.

About a year from now, when the legislative session is in its last six weeks, Levine, Straus and the zombies and the regulated industries will decide whether and how things have changed — if they have changed at all.