Road Funding Screeches to a Halt

Technically, the second called special of the 83rd Texas Legislature ends at midnight tonight. But, in reality, they may as well call sine die now, as there is no sign that a deal will be reached over the last item on the call: Transportation.

Now, do you want the long explanation, the short one, or the shortest one?

Shortest: Go home, we're done, it's not happening.

The short one is simple. The two components of the funding measure – House Joint Resolution 2 and House Bill 16 – emerged from the conference committee process dramatically changed from what either the House or Senate had approved. Because HJR2 deals with sending a constitutional amendment to the ballot box, it needs a two-thirds majority in both chambers: 100 in the House, 21 in the Senate. When the votes came down yesterday, the end result of that shuffling was that the House rejected HJR2 84-40, while the Senate was clearly at least one vote short and never even bothered.

The bright news for the bill authors was that HB16 – now mangled and reshaped from its original form – did achieve passage. That only needed to reach 50% of votes cast, so it passed 19-4 in the Senate and 69-55 in the House. While it seems like a waste of time to pass enabling legislation for a constitutional measure that seems highly unlikely to pass, it does bring one measure to the statutes: A standing committee to study how Texas pays for its transportation system.

Now, the long version.

What came out of the conference committee was a proposal to divert some cash from oil and gas taxes that normally go into the Rainy Day Fund into the State Highway Fund. Theoretically, this should produce just shy of $1 billion a year while still replenishing the state's biggest savings account.

In the House, the perpetually optimistic bill author Rep. Joe Pickett, D-El Paso, tried to keep a smiling face on matters, but clearly knew that he was fighting a losing battle. He had originally welded together a compromise measure that had precariously stacked just enough spending guarantees and protections to keep Democrats on board, and enough Texas Department of Transportation oversight and anti-toll road requirements to keep suburban Republicans satisfied. Still, he had only wrangled 108 votes for its passage, and the Senate gutted it, sending straight to the purgatory on conference committee. When it finally emerged over the weekend, it was just a whole new set of compromises

What really killed the resolution, as Pickett and others conceded, was that there was no clear path to a new consensus. Everyone knows that Texas roads are underfunded, but the idea that Gov. Rick Perry putting lawmakers in a pressure cooker for a month would fix things seemed delusional. Moreover, if the only solution they could come up with was a constitutional amendment, there was a growing grumble that this was just bad legislating.

What also emerged was a clear division between the Republican leadership. The first sign was in the Senate: Bill sponsor Sen. Bob Nichols, R-Jacksonville, was laying out the two measures, and explaining why the Senate's demand for a hard $6 billion floor on the Rainy Day Fund had been removed. Suddenly, up piped Sen. Dan Patrick, R-Houston, who said Nichols had "caved" to the House. Not at all, said Nichols, who then got unexpected support from Lt. Gov. David Dewhurst, who leapt to his defense and called "caving … inflammatory language." Cue fuming from Patrick that Dewhurst had been out of order. Please note, Patrick and Dewhurst are heading for a fight in the 2014 Republican primary for lieutenant governor, and it looks like the gloves have already come off.

Of course, Perry was on full-on thundering mode, releasing a statement accusing the House of "abdicating one of the most essential roles of state government." His tirade put everything on the House, which may sit fine with Speaker Joe Straus.

The San Antonio Republican, like many on the floor, was clearly no fan of the basic fact that HJR2 was a partial solution: Not only would it only supply roughly a fifth of what TxDoT actually needs to fill its shortfall, but a growing cadre fears that its passage could actually make it harder to pass further legislation and funding in 2015. Moreover, it has been an open secret that Straus feared having a second funding measure on the ballot next to the cash for the Water Infrastructure Bank may condemn both (that's why, in the conference report, the road funding vote had been pushed back to 2015.) Slyly condemning this ineffective measure, Straus wrote, "Diverting a capped amount of money from the Rainy Day fund to repair roads is much like using a Band-Aid to cover a pothole; in the end, you still have a pothole and you’ve spent a lot of money without solving the fundamental problem."

So now what? It's not impossible that the House and Senate could reconvene this afternoon with enough votes to pass the bill. However, at start of play yesterday there were eight senators absent, and 23 House members. Those numbers are expected to be even higher today, as reps jump the sinking ship, making the path to 100 even narrowed, windier and longer. Does that mean Perry will call a third special session? With even Pickett, his chief Democratic ally in this process, warning him off the idea, who knows?

In reality, it seems much more likely that lawmakers will be back in 2015 with transportation funding as their top priority. That is, of course, unless Judge John Dietz makes his final ruling in the ongoing school finance trial by then. In which case, the 83rd session, with its double special sessions, will seem like a delightful Summer vacation.