December 4, 2020, Number 47

Download the full .pdf version here: TML Legislative Update 47

Texas Cities Receive PIA Request for Lobby Expenditure Information

Many, if not all, Texas cities recently received a Public Information Act (PIA) request from State Representative Mayes Middleton (R - Wallisville) relating to lobby expenditures. Specifically, Representative Middleton requested “the line items in the adopted 2021 budget showing any planned expenses for directly or indirectly attempting to influence legislation.”

The request references Local Government Code Section 140.0045. That section provides, among other things, that the proposed budget of a political subdivision must include, in a manner allowing for as clear a comparison as practicable between those expenditures in the proposed budget and actual expenditures for the same purpose in the preceding year, a line item indicating expenditures for directly or indirectly influencing or attempting to influence the outcome of legislation or administrative action, as those terms are defined in the state’s lobby law. 

Current law does not define what it means to “directly or indirectly influence or attempt to influence legislation.” It is safe to say that money spent on a contract lobbyist should be included, but what about internal expenditures related to influencing legislation? Those internal expenditures might include staff travel time to Austin and related expenses to meet with a legislator or testify before a committee. What to include in the city’s budget pursuant to Section 140.0045 (if anything) is ultimately up to each city to decide in good faith based on the advice of local legal counsel. 

TML member service fees are not spent to influence legislation. As such, the League’s interpretation is that member service fees are not required to be included in the city’s budget comparison under Section 140.0045. Still, some cities may have included a line item in their budgets relating to lobbying expenditures that included TML member service fees out of an abundance of caution. 

Based on numerous questions received by the TML Legal Department about how to respond to the letter, the League's best advice is to take the following actions:

• If the city included a comparison of expenditures for “directly or indirectly influencing or attempting to influence the outcome of legislation or administrative action” in its budget, the city should send that comparison to Representative Middleton by December 14, 2020.
• If the city did not include a line item in its budget pursuant to Section 140.0045, the city will not have any information that is directly responsive to Representative Middleton’s request. Under the PIA, the city may advise Representative Middleton that it does not have any responsive records. If there is other information in the city’s budget that indicates any planned expenses for influencing legislation, independent of the Section 140.0045 line item, the city should consider sending that information to Representative Middleton in the interest of transparency.
• A city should consult its local legal counsel in making a final decision about how to respond to this request.

If you have further questions please contact Bill Longley, TML Legislative Counsel, at bill@tml.org or (512) 231-7400. 

Rescheduled: Senate State Affairs to Hear Community Censorship Charge Next Week

The Senate State Affairs will meet Tuesday, December 8, to hear invited testimony on the interim charge below. The official notice can be found here. 

Study how governmental entities use public funds for political lobbying purposes. Examine what types of governmental entities use public funds for lobbying purposes. Make recommendations to protect taxpayers from paying for lobbyists who may not represent the taxpayers’ interests.

Although no public testimony will be taken, we invite all mayors to sign onto a letter encouraging state and local cooperation. Mayors interested in signing onto the letter, please email your name, city and electronic signature to JJ Rocha at jj@tml.org by 12:00 p.m. Monday, December 7 to be included.

We encourage city officials to continue discussing this issue with your state representative and state senator as it will continue to be a priority issue for state leadership.

Stay Engaged During the Legislative Session: Grassroots Involvement Program

During the upcoming Texas legislative session, Texas cities will face many challenges and opportunities. TML will need to mobilize our membership at key points during session. The Grassroots Involvement Program (GRIP) is one way to do so. Our GRIP survey focuses on a variety of items including your areas of expertise and involvement with other professional organizations. Most importantly, the GRIP survey asks how well you know various state legislators and if you are willing to communicate with those legislators during the session. With many unknowns on how the capitol will operate during a pandemic, TML’s grassroots approach will be crucial to our efforts.

If you have a relationship with your legislator(s) or want to be more involved during session, please take the time to complete the GRIP survey. Past efforts have proven that such participation is a highly effective tool. 

We ask that you complete the survey as soon as possible, preferably before January 8, 2021.

City-Related Bills

(Editor’s Note:  You will find all of this session’s city-related bill summaries online at https://www.tml.org/319/Legislative-Information.)

Property Tax

H.B. 649 (Raymond) – Property Tax Exemption: would exempt from property taxes real property owned by a charitable organization for the purpose of providing: (1) housing counseling services without regard to the beneficiaries’ ability to pay; and (2) rental housing to low-income and moderate-income individuals and families at below-market rates. 

H.B. 650 (Raymond) – Property Tax Exemption: would, among other things, provide a local option property tax exemption for a residence homestead owned by a parent or guardian of a person who is disabled and who resides with the parent or guardian. (See H.J.R. 38, below.)

H.J.R. 38 (Raymond) – Property Tax Exemption: would, among other things, amend the Texas Constitution to authorize a local option property tax exemption for a residence homestead owned by a parent or guardian of a person who is disabled and who resides with the parent or guardian. (See H.B. 650, above.)

Public Safety

H.B. 600 (J. Johnson) – Psychological Examinations:   would: (1) provide that, once every 24 months, each peace officer shall be examined by a licensed psychologist or psychiatrist who can declare in writing that the officer is in satisfactory psychological and emotional health to serve as a peace officer; (2) provide that the Texas Commission on Law Enforcement (TCOLE) shall, by rule: (a) provide grounds for which a law enforcement agency may exempt a peace officer from the requirement described in (1), above; and (b) adopt procedures to ensure timely and accurate reporting by law enforcement agencies and peace officers of the results of a psychological examination; and (3) provide that TCOLE shall suspend the license of a peace officer who fails to comply with the requirements of (1), above.

H.B. 616 (Dutton) – Criminal Penalties for Possession of Marihuana: would, among other things: (1) reduce criminal penalties for the possession of two ounces or less of marihuana; (2) provide that an offense for possession of two ounces or less of marihuana is a Class B misdemeanor if it is shown on the trial of the offense that the defendant has been previously convicted three or more times of an offense involving the possession of marihuana and each prior offense was committed within the 24-month period preceding the date of the commission of the instant offense; and (3) require a judge to order a defendant who receives a deferral for possession of marihuana to successfully complete a drug awareness and education program.

H.B. 638 (Krause) – Public Safety Funding: would: (1) define “public safety service” to mean fire protection, law enforcement, or emergency medical service; (2) provide that a political subdivision may not adopt a budget unless the political subdivision allocates money in that budget to provide for each public safety service in an amount equal to or greater than the amount allocated to provide for that service in the preceding fiscal year; (3) allow a political subdivision to adopt a budget that does not meet the requirements of (2), above, if the political subdivision will not provide the public safety service in the fiscal year for which the budget is adopted; and (4) provide that the amount allocated in a budget to provide a public safety service includes all maintenance, operations, and debt service costs associated with providing the service.

H.B. 656 (J. Gonzalez) – Consent to Take Specimen: would provide that if a person consents to an officer’s request to take a blood or breath specimen, the officer shall request the person to sign a statement providing that: (1) the officer requested that the person submit to the taking of a specimen; (2) the person was informed of the consequences of not submitting to the taking of a specimen; and (3) the person voluntarily consented to the taking of a specimen.

H.B. 657 (J. Gonzalez) – Evidence of Intoxication: would, among other things, provide that in the prosecution of any offense involving a motor vehicle, only an analysis of a lawfully obtained specimen of the defendant’s blood, breath, or urine or other bodily substance is admissible to show the defendant’s alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other substance in the defendant’s body at the time of the offense.

H.B. 667 (Dutton) – Asset Forfeiture: would require: (1) a final conviction for an underlying offense in order to pursue forfeiture of contraband; and (2) a court to dismiss a contraband forfeiture proceeding on proof of a dismissal or acquittal of the underlying offense. 

H.B. 689 (Collier) – Appearance of Arrested Person before Magistrate: would, among other things, provide that when an arrested person appears before a magistrate: (1) if the proceeding is conducted through videoconference, the magistrate shall ensure the arrested person is able to connect to and understand the image and sound of the videoconference; (2) if the magistrate is unable to ensure that the arrested person is able to understand and participate in the proceeding, the magistrate shall: (a) if the magistrate has appointing authority, appoint counsel for the person; or (b) if the magistrate does not have appointing authority, notify the appointing authority of the person’s inability to understand and participate in the proceeding; and (3) if the magistrate has reasonable cause to believe that the arrested person has a mental illness or is a person with an intellectual disability, the magistrate shall follow the required procedures for early identification of a defendant suspected of having mental illness or intellectual disability.

Sales Tax

No sales tax bills were filed this week.

Communitiy and Economic Development

H.B. 639 (White) – Emergency Services District: would allow an emergency services district to provide public health services, contract with a local government to provide those services, and charge a reasonable fee for performing those services for or on behalf of a person or entity.

H.B. 662 (Collier) – Homeless Housing: would expand the ability of the Texas Department of Housing and Community Affairs to administer a homeless housing and services program in each city in the state with a population of 285,500 or more to include programs to prevent homelessness resulting from displacement due to economic development activities.

Elections

H.B. 611 (Swanson) – Voter Assistance: would provide that a person assisting a voter commits a state jail felony of perjury if the person assists a voter in a way that violates the oath administered by an election officer to the person providing assistance to the voter and does so three or more times in a single election. 

S.B. 208 (Bettencourt) – Early Voting Ballot Application: would prohibit an officer or employee of the state or a political subdivision from distributing an official application form for an early voting ballot to a person. (Companion bill is H.B. 25 by Swanson.)

Emergency Management

H.B. 655 (Raymond) – Statewide Disaster Alarm System: would, among other things, provide that: (1) the Texas Division of Emergency Management (TDEM) shall conduct a study on the efficacy of existing mass notification deployments by local governmental entities throughout the state and the feasibility of establishing a statewide disaster alert system; (2) the study must: (a) identify the costs to local governmental entities associated with existing local disaster alert or notification systems; (b) examine the potential benefits to local governmental entities of implementing an alert system; (c) examine the importance of a local governmental entity’s discretion regarding the entity’s level and manner of participating in the alert system; (d) examine potential costs to local governmental entities or this state associated with implementing the alert system; and (e) identify any state or local governmental entity actions necessary to implement a comprehensive alert system; (3) if, based on the findings of the study described, TDEM and the office of the governor conclude that the benefits to the state and local governmental entities of implementing a coordinated alert system outweigh any additional costs, TDEM, with cooperation of appropriate state agencies and using money available for that purpose, shall develop and implement the alert system; (4) a local government entity that chooses to participate in an alert system implemented under (3), above, may use local funds for that purpose and may contract with TDEM for services associated with the alert system; (5) an alert system may be operated in conjunction with any other emergency alert system required by federal or state law and designed to notify persons statewide of a disaster affecting any location in the state; and (6) a participating local government entity may, in coordination with TDEM, chose the manner in which the alert system is activated and notifications are issued within the entity’s geographic region.

H.B. 665 (Landgraf) – Emergency Rules: would provide, among other things, that an emergency rule that is adopted by a state agency during a period in which at least 75 percent of the counties in the state are declared to be in a state of disaster or emergency by the governor may be effective for not longer than 30 days, and may be renewed for not longer than 60 days.

H.B. 671 (Martinez, A) – Disaster Identification System: would, among other things, provide that: (1) the Texas Division of Emergency Management may include in its state emergency plan provisions for the use of a disaster identification system; (2) in an area subject to a state of disaster declaration, a person may elect to participate in a disaster identification system activated for that area; (3) such system shall authorize the use of a device that is capable of displaying a flashing light and continuous light in either the color white or the colors blue, green, red, and yellow (an “illuminated display”) to communicate with disaster relief personnel; and (4) an executive order or proclamation declaring a state of disaster activates for the area subject to the declaration the disaster identification system described above. 

H.J.R. 40 (White) – Disaster Management: would amend the Texas Constitution to prohibit the governor from suspending or limiting, by order or proclamation, the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, or combustibles regardless of whether the state is in a period of emergency resulting from a disaster.

Municipal Courts

No municipal court bills were filed this week.

Open Government

H.B. 642 (Raymond) – Criminal History Record Information: would, among other things, provide that: (1) criminal history record information that relates to a person’s conviction within the preceding 10-year period for certain offenses related to driving while intoxicated, intoxication assault, and intoxication manslaughter is public information, with the exception of: (a) information regarding the person’s social security number, driver’s license or personal identification certificate number, or telephone number; and (b) any information that would identify a victim of the offense; (2) the Department of Public Safety (DPS) shall implement and maintain an internet website to allow any person, free of charge, to electronically search for and receive the information described in (1), above; (3) DPS shall establish a procedure by which a peace officer or employee of a law enforcement agency who provides DPS with a driver’s license number, personal identification certificate number, or license plate number may be provided any criminal history record information maintained by the DPS concerning a conviction of the person to whom the license, certificate, or plate is issued for the offenses described in (1), above; and (4) the procedure described in (3), above, must allow a peace officer to request the information from the location of a motor vehicle stop and to receive a response to the request within the duration of a reasonable motor vehicle stop.

Other Finance and Administration

H.B. 604 (Noble) – Animal Shelter: would require that, as soon as practicable after an animal is placed in the custody of an animal shelter, the shelter scan the animal to determine whether a microchip is implanted in the animal.

H.B. 610 (Swanson) – State License Holders: would authorize a person who, or entity that, holds a state license in order to practice the individual’s occupation or conduct the entity’s business to bring legal action against a city to enjoin the enforcement of a local law that: (1) establishes requirements for, imposes restrictions on, or otherwise regulates the occupation or business activity of the license holder in a manner that is more stringent than the requirements, restrictions, and regulations imposed on the license holder under state law; or (2) results in an adverse economic impact on the license holder.

H.B. 614 (S. Thompson) – Immunity Waiver for Constitutional Violations: would: (1) authorize a person to bring an action for any appropriate relief against another person, including a public entity, who, under the color of law, deprives the person bringing the action of a right, privilege, or immunity secured by the Texas Constitution; (2) provide that statutory immunity or limitation on liability, damages, or attorney ’s fees does not apply to an action brought under (1); (3) provide that qualified immunity is not a defense to an action brought under (1); and (4) require a public entity to indemnify a public employee of the entity for liability incurred by and a judgment imposed against the employee in an action brought under (1), unless the employee is convicted of a criminal violation for the conduct that is the basis for the action.

H.B. 624 (Shine) – Offense Against Public Servant: would increase the criminal penalty for certain offenses committed in retaliation for, or on account of, a person’s service or status as a public servant.      

H.B. 635 (Krause) – Federal Firearms Regulations: would: (1) with certain border security exceptions, prohibit a city or employee of the city from contracting with or providing assistance to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition that imposes a prohibition, restriction, or other regulation, such as a capacity or size limitation or a registration requirement, that does not exist under Texas law; and (2) provide that a violation of the prohibition in (1) may be enforced: (a) by denying state grant funds to the city; and (b) through court action by the attorney general.

H.B. 636 (S. Thompson) – Texas State Board of Plumbing Examiners: would, among other things, continue the functions of the Texas State Board of Plumbing Examiners.

H.B. 647 (Raymond) – Gambling: would: (1) provide for local option elections to legalize or prohibit the operation of eight-liners; and (2) impose a permit fee of $350 per year on each eight-liner, provide that the comptroller shall collect the fee, and require the comptroller to remit 70% of the fee back to the city. (See H.J.R. 37, below.)

H.B. 652 (Paul) – Animal Shelter: would require an animal shelter to provide notice to each person who adopts an animal from the shelter of any epizootic infectious disease (a disease in excess of the expected frequency in a geographic area or population) that occurs among the animals in the shelter in a period just before or after the animal is adopted.

H.B. 664 (Landgraf) – Local Debt Elections: would provide that an election for the issuance of bonds or other debt shall be held on the November uniform election date. 

H.J.R. 33 (Swanson) – Regulation of Occupations: would amend the Texas Constitution to prohibit the state or a political subdivision of the state from enacting or enforcing a regulation that imposes a substantial burden on an individual’s right to engage in a lawful occupation or profession unless the regulation is necessary and narrowly tailored to protect against actual and specific harm to the public’s health and safety.

H.J.R. 37 (Raymond) – Gambling: would amend the Texas Constitution to authorize: (1) local option elections to legalize or prohibit the operation of eight-liners or similar gaming devices; and (2) the legislature or a political subdivision to impose a fee on gaming devices approved by a majority of the voters in a local option election under (1). (See H.B. 647, above.)

Personnel

H.B. 615 (Goodwin) – Minimum Wage: would provide that: (1) an employer, including a city, shall pay certain employees: (a) for the 2022 calendar year, not less than the greater of $11.25 an hour or the federal minimum wage (currently at 7.25 an hour); and (b) for the 2023 calendar year, not less than the greater of $15 an hour or the federal minimum wage; (2) beginning in the 2024 calendar year, an employer, including a city, shall pay to each employee the greater of the federal minimum wage or an adjusted minimum wage, as determined in (3), below; (3) beginning on December 1, 2023, and on every December 1 of each year thereafter, the comptroller shall calculate the adjusted minimum wage for the next calendar year by increasing the minimum wage paid under (2), above, by the percentage increase, if any, in the consumer price index for the 12 months preceding that date; and (4) the wage of a tipped employee may not be less than 50 percent of the amount required by (1) and (2), above. 

H.B. 637 (Canales) - Disease Presumption: would, among other things: (1) provide that for purposes of reimbursement of medical expenses for public safety employees, including peace officers, firefighters, and emergency medical services personnel who are exposed to a contagious disease, a disease is not an “ordinary disease of life” if the disease is the basis for a disaster declared by the governor for all or part of the state; (2) expand the applicability of the disease presumption statute to include detention officers, including such officers who are employed by a city; and (3) expand the disease presumption statute to provide that a detention officer, firefighter, peace officer, or emergency medical technician who contracts a disease that is the basis of a state declared disaster for all or part of the state and dies or is totally or partially disabled is presumed to have contracted such disease in the course and scope of employment as a detention officer, firefighter, peace officer, or emergency medical technician. (Companion bill is S.B. 107 by Powell.) 

S.B. 209 (Eckhardt) – Nondisclosure Agreements: would: (1) provide that a nondisclosure or confidentiality agreement or other agreement between an employer and employee is void and unenforceable if such agreement prohibits or limits the employee from notifying a local or state law enforcement agency or any state or federal regulatory agency of sexual assault or sexual harassment committed by the employee or at the employee’s place of employment; (2) provide that a mandatory arbitration agreement between an employer and employee is void and unenforceable if the agreement requires mandatory arbitration of a dispute involving an allegation of sexual assault or sexual harassment; and (3) prohibit an employer from discriminating against an individual in connection with an employment relationship because the individual refuses to sign an agreement described in (1) and (2).

Purchasing

H.B. 633 (Morrison) – Prevailing Wage Rates: would provide that, for purposes of awarding a contract for the construction of a public work, a political subdivision, including a city, may determine the prevailing wage rates in the locality in which the public work is to be performed by using data compiled by the Texas Workforce Commission’s Labor Market and Career Information Department, including occupational employment statistics wage data for: (1) the local workforce development area or metropolitan statistical area relating to the locality in which the public work is performed; or (2) the state, but only if there is no data available for the relevant local workforce development area or the metropolitan statistical area for the specific occupation, as classified by the United States Bureau of Labor Statistics in the 2018 Standard Occupational Classification system, for which data is sought. 

H.B. 676 (Hernandez) – Historically Underutilized Businesses: would, among other things, provide that persons with a disability as defined by the federal Americans with Disabilities Act are included in the state’s list of historically underutilized businesses. 

H.B. 692 (Shine) – Public Works Contracts Retainage: would provide that:

1. “warranty period” means the period of time specified in a contract during which certain terms applicable to the warranting of work performed under the contract are in effect;
2. a governmental entity: (a) shall include in each public works contract a provision that establishes the circumstances under which a public works project is considered substantially complete; (b) may release the retainage for substantially completed portions of the project, or fully completed and accepted portions of the project; (c) shall maintain an accurate record of accounting for the retainage withheld on periodic contracts payments and the retainage released to the prime contractor for a public works contract; and (d) shall, for certain public works contracts with a value of $10 million or more, pay any remaining retainage on periodic contract payments, and the interest earned on the retainage, to the prime contractor on completion of the contract; 
3. if the total value of a public works contract is $1 million or more, a governmental entity may not withhold retainage in an amount that exceeds five percent of the contract price, and the rate of retainage may not exceed five percent for any item in a bid schedule or schedule of values for the project;
4. except certain contacts funded through the Texas Water Development Board from the limitation described in (3), above;
5. for a competitively awarded contract with a value of $10 million or more, and for a contract awarded using a method other than competitive bidding, a governmental entity and prime contractor may agree to deposit in an interest-bearing account the retainage withheld on periodic contract payments;
6. a governmental entity may not withhold retainage: (a) after completion of the contract by the prime contractor, including during the warranty period; or (b) for the purpose of requiring the prime contractor, after completion of the contract, to perform work on manufactured goods or systems that were specified by the designer of record and properly installed by the contractor;
7. on application to a governmental entity for final payment and release of retainage, the governmental entity may withhold retainage if there is a bona fide dispute between the governmental entity and the prime contractor and the reason for the dispute is that labor, services, or materials provided by the prime contractor or the prime contractor’s subcontractors were not provided in compliance with the contract; and
8. if there is no bona fide dispute as described (7), above, and neither party is in default, a prime contractor is entitled to: (a) cure any noncompliant labor, services, or materials; or (b) offer the governmental entity a reasonable amount of money as compensation for any noncompliant labor, services, or materials that cannot be promptly cured.

S.B. 219 (Hughes) – Professional Services: would: (1) prohibit a governmental entity from requiring, in a contract for architectural or engineering services for the construction or repair to real property, that architectural or engineering service must be performed at a level of professional skill and care beyond that which would be provided by an ordinarily prudent architect or engineer; and (2) provide that a contractor is not responsible for the consequences of defects in and may not warranty plans, specifications, or other design or bid documents provided to the contractor by: (a) the person with whom the contractor entered into the contract; or (b) another person on behalf of the person with whom the contractor entered into the contract.

Transportation

S.B. 221 (Zaffirini) – Speed Limit: would decrease the prima facie speed limit in cities with a population greater than 950,000 to 25 miles per hour in an urban district on a street other than an alley and 15 miles per hour in an alley.

Utilities

H.B. 605 (Gervin-Hawkins) – School Drinking Water: would, among other things, require: (1) a school district to adopt a healthy and safe school water plan that provides for periodic lead testing; (2) a school district to restrict access to a water source within 48 hours of learning that a test result shows lead levels that exceed 15 parts per billion; and (3) the Texas Education Agency, in collaboration with Texas Commission on Environmental Quality, the Department of State Health Services, regional education service centers, and other stakeholders, to develop a model healthy and safe school water plan that may be used by a school district to comply with the bill. 

H.B. 631 (Darby) – Municipal Waste and Hazardous Waste: would, among other things: (1) preempt political subdivisions from adopting a rule or ordinance that conflicts or is inconsistent with: (a) the rules of the Texas Commission on Environmental Quality (TCEQ); (b) a permit issued by TCEQ; or (c) the legal requirements for a municipal solid waste facility; and (2) provide that an applicant for a solid waste permit is not required to obtain a permit for the siting, construction, or operation of a municipal solid waste facility from a local government or other political subdivision of the state as a prerequisite to a permit being issued by TCEQ.

S.B. 211 (Zaffirini) – TCEQ Judicial Review: would, among other things, create a uniform deadline of 30 days to appeal an order, decision, or other act of the Texas Commission on Environmental Quality (TCEQ) for both water and solid waste orders.

Coronavirus (COVID-19) Updates

The Texas Municipal League is open for business. The building is closed to all but essential personnel and most staff is working remotely, but the League remains open for business and is fully ready to serve. Cities are encouraged to call or email for legal assistance, help with ordinances, or for general advice or assistance. Let us know how we can assist you and your city.

Call TML staff at 512-231-7400, or email the legal department for legal assistance at legalinfo@tml.org; Rachael Pitts for membership support at RPitts@tml.org; and the training team for questions about conferences and workshops at training@tml.org.

The League has prepared a coronavirus clearinghouse web page to keep cities updated. In addition, everyone who receives the Legislative Update should receive an email update each Tuesday and Thursday with information on new developments. The email updates will be our primary means of communication during the pandemic. Those emails are being archived chronologically as well as by subject matter.  

DISCLAIMER

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.