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How Long Is 140 Days?

As the 81st Legislature departs, does it leave a footprint?

By Richard Whittaker, Fri., June 12, 2009

It's been nicknamed "the Seinfeld Session" – the session about nothing.

Early in the 81st Legislature, many lawmakers half-joked that if they got the budget passed, they'd call it a win. Considering how little major legislation passed and how the budget was bailed out by federal stimulus dollars, they may have aimed too high.

In the cold light of the interim – and before the special session that Gov. Rick Perry has declared "necessary" – the 81st's legacy is being examined. Its closing hours were supposed to be about establishing legislative intent – the instructions that clarify exactly what lawmakers intended from a bill – but now hundreds of bills are ready to be signed by the governor despite fears that that process was never completed. Instead, the final two days were marked by little floor action as state reps tried to salvage the crippled Sunset review process by passing House Concur­rent Resolution 291, which suggested resetting to 2011 the Sunset date of five agencies (the Department of Trans­porta­tion, the Department of Insurance, the State Affordable Hous­ing Corpor­ation, the Racing Com­mission, and the Office of Public Insur­ance Counsel). This measure caused two problems. First, it passed the House. Second, it didn't pass the Senate.

By approving the resolution, critics say, the House has ripped open a massive loophole in the legislative process. How bad is it? "Seriously bad," said Rep. Dawnna Dukes, who voted nay. "You can technically use a resolution, change the date on Sunset," she warned, "and extend an entire agency without further discussion."

But in rejecting the House's last-ditch stabilization effort, the Senate didn't just leave five agencies scheduled to close on Sept. 1, 2010 (the governor's office is now scrambling to find some way to keep them open until the 2011 session); it also revealed how massively overstretched the Sunset Advisory Commission in fact is. For the 2009 session, its 29 staff members had to report on 27 agencies: For 2011, only 25 are scheduled for review, but that includes the massive Health and Human Services Commission, which accounts for 40% of the state budget. In addition, there are partial reviews due of the Texas Youth Com­mis­sion and the Texas Juvenile Probation Com­mis­sion, plus – victims of their own success – Sunset staff get to give Capital Metro a once-over.

Even in a good year, outgoing commission member Rep. Lois Kolkhorst said, the tiny Sunset staff is only capable of "a sampling of each agency" and not a full audit. Sunset Commission Deputy Director Ken Levine promised his agency will rise to the task, but, with no extra staff and an expanded workload, it will be a struggle. "Will it be as in-depth as all members of the Legislature want? Probably not," he said. "We will have to focus our efforts on what we think are the biggest problems and the biggest issues, because we can't be everywhere."

The House desperately cobbled HCR 291 together because all other attempts to pass the Sunset bills for the contested agencies had failed (in part, because lawmakers had usurped them as vehicles for other legislation). In the final hour of the session, commission Chair Rep. Carl Isett, R-Lubbock, offered a personal privilege speech to the House. Sunset, he said, had been established in 1977 because "the regulated and the regulators couldn't be clearly differentiated." Now, as the final overloaded and ultimately unsuccessful version of House Bill 300 – the TxDOT Sunset bill – proved, Sunset bills are now "targets of opportunity." After his speech, he elaborated: "I believe that the system's been adulterated," and he wants lawmakers to go back to "the original purpose of Sunset: Look at whether the mission is necessary, and if it is necessary, how can we improve the delivery?"

The obvious solution to all this unfinished business is a special session. Perry told reporters on June 9 that there will be one, but until he makes the formal call, it's unclear when it will happen or what it will cover. (Analysts on both sides agree that his decision will ultimately be made in the context of next year's gubernatorial primary race.) But the only reason the Legis­lat­ure would have to come back is because it left in the first place. The chubbing in the House, the unfinished business caused by calling sine die with hours left on the clock, and the thousands of bills that died in committee only happened because of the series of deadlines caused by the session being limited to 140 days.

The original 1876 Texas Constitution says nothing about session duration: The current 140-day restriction was only introduced by constitutional amendment in 1960. Even Houston GOP Sen. Dan Patrick – a regular contender for the title of most anti-government legislator – proposed a study on a future transition to a full-time Legislature. Yet Speaker Joe Straus contends that all it takes is better management of the interim. "There's work that gets done by the [Legislative Budget Board]. I'll be here a lot; the governor's here; there's executive management. You don't need the cacophony of 150 members of the House and 31 members of the Senate to get the more routine matters done. I think 140 days is quite enough."

What follows below is a capsule report on the overall accomplishments of the 81st session; Chronicle readers can draw their own conclusions about the wisdom of the speaker's conclusion.

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