Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic

Gov. Greg Abbott is well aware that some lawmakers, particularly in his own party, are interested in reining in his authority. However, it remains to be seen how much power Abbott is willing to relinquish.

For roughly the past year, Republicans and Democrats have picked apart the state’s response to the coronavirus pandemic — and particularly how Gov. Greg Abbott has wielded his power along the way.

Now, with less than 90 days left in the 2021 regular legislative session and as Abbott has moved to lift most of the restrictions he imposed, the Texas Legislature is setting its sights on addressing the governor’s emergency powers during a pandemic. And while many differences remain on the approach, members of both parties and both chambers of the Legislature appear intent on doing something.

In the House, a top lieutenant of GOP Speaker Dade Phelan has filed a wide-ranging bill that would affirm the governor’s ability to suspend state laws and require local jurisdictions to get approval from the secretary of state before altering voting procedures during a pandemic, among other things. The measure has been designated House Bill 3, indicating it’s a top priority for the new speaker, behind the lower chamber’s proposed state and supplemental budgets in House Bills 1 and 2, respectively.

The author of House Bill 3, Rep. Dustin Burrows, R-Lubbock, has said the proposal can serve as a starting point for lawmakers to begin to map out what the state’s response should look like in the event of another pandemic.

“After going through the last year of a pandemic and the government reaction to it, we owe Texans a healthy and robust debate about what we agree and disagree with,” Burrows said in a statement to The Texas Tribune for this story. “I filed HB3 so we could have a holistic review of state governance and to make sure we protect our liberties during a state emergency.”

The Senate, meanwhile, is appearing to take a more piecemeal approach. Lt. Gov. Dan Patrick has included several pandemic-related proposals as part of his 31 legislative priorities for the session, including a “First Responders Pandemic Care Act” and a “Family Nursing Home Visitation Rights” bill. Patrick’s office has remained tight-lipped so far about the substance of those proposals — many of which have not yet been filed — or his chamber’s contrasting approach. A Patrick spokesperson declined to comment on the record.

“Things are off to a slow start, and I think we’re probably in wait-and-see mode” when it comes to reforming emergency powers, said Sen. Carol Alvarado, D-Houston, chair of the Senate Democratic Caucus. “There seems to be more going on on the Republican side of that, but as far as doing something like an HB 3 goes, I’m not sure.”

There are broad areas of agreement between the two chambers on issues like protecting businesses from certain lawsuits related to COVID-19, which is among Patrick’s and Abbott’s priorities and is included in the House’s omnibus proposal. But the more tricky territory could be reforming the parameters of a state pandemic response.

The emergency powers debate will unfold in the aftermath of Abbott’s decisions to lift the statewide mask mandate and allow businesses to reopen at 100% capacity. Abbott announced the moves earlier this week, and they go into effect Wednesday.

While those decisions took some intraparty heat off of Abbott, there is still interest at the Capitol in a broader discussion about executive authority — interest from both parties. Democrats and some public health experts have called on him at times to be more strict to slow the spread of the virus, or to allow county officials to impose local measures that go further than his statewide mandates.

Early in the pandemic, Abbott issued what essentially amounted to a statewide shutdown order, and he kept in place some level of capacity limitations for businesses until his announcement this week. In July, he mandated that Texans wear masks in public. And he has taken multiple steps to lift numerous state regulations, such as allowing restaurants to sell groceries and mixed drinks to go.

Abbott is well aware that some lawmakers, particularly in his own party, are interested in reining in his authority. In his State of the State speech last month, he promised to “continue working with the Legislature to find ways to navigate a pandemic while also allowing businesses to remain open.” In media appearances afterward, he signaled openness to reforming the governor’s emergency powers, telling the Tribune that his office is “offering up some legislation ourselves on ways to address this going forward.”

However, it remains to be seen how much power Abbott is willing to relinquish. He told the Tribune that his office is working on legislation to “pre-plan” a pandemic response, “but it has to be done in a way that leaves flexibility to move swiftly.” He said he still wants the governor to be able to unilaterally cut regulations in such cases and to respond to requests from the federal government that can have as short as a 24-hour deadline. Abbott has also indicated that he wants to permanently end some of the regulations he suspended.

Phelan, a Beaumont Republican, has also advocated for a balanced approach, and in a statement for this story, the speaker applauded Burrows “for taking a leading role” in addressing the issue this legislative session.

“[House Bill 3] is the House’s blueprint for pandemic response,” Phelan said, “and our chamber welcomes healthy debate over the best way to defend our liberties, create predictability in times of crisis, and safeguard our economy.”

Conversations over how the Legislature should respond to the pandemic have extended beyond the governor’s emergency powers, with some lawmakers pushing for broader health reforms and changes to the way the state reports data or distributes vaccines. But those discussions have, to some extent, been delayed after a massive winter storm last month left millions without power and water, setting off committee hearings, investigations and other debates about reforming the state’s power grid and the entities in charge of overseeing it.

That recent energy disaster, coupled with lawmakers attempting to legislate during a pandemic, has put the Legislature behind schedule with 88 days left of the 140-day regular session, making it unclear how those two big-ticket items — a pandemic and winter weather response — will pass along with everything else on the agenda by the time the two chambers gavel out.

“A great, conservative victory”

As filed, House Bill 3 would carve out future pandemics from how the state responds to other disasters, such as hurricanes. For roughly the past year throughout the pandemic, the state has been operating under the Texas Disaster Act of 1975, which Abbott has used to issue statewide guidelines. Some have argued that the disaster statute did not fit the circumstances brought on by the unprecedented pandemic and that tweaks would be needed should a similar crisis happen in the future.

The bill would also require local jurisdictions to receive approval from the secretary of state before altering voting procedures during a pandemic — an attempt to avoid the headlines and confusion that defined much of the 2020 general election, such as court battles over mail-in ballot applications and drive-thru voting.

“All of these jurisdictions, especially in [Harris and Dallas counties], the more blue areas, we’re not going to let them use a pandemic excuse to change the rules of the game to try to get more Democrats out to vote,” Burrows said last week on the Lubbock-based Chad Hasty radio show, noting that the Republican Party of Texas has named “election integrity” a top priority this legislative session.

Medicaid Expansion Again Brought Up for 87th Texas Legislative Session

Every year since Obamacare’s inception, some have pushed Texas to expand Medicaid. And every session since, the state has declined.BRAD JOHNSONMARCH 5, 2021https://thetexan.news/wp-content/uploads/2021/03/Medicaid-Stethoscope1-1280x720.jpg

(Photo by Hush Naidoo on Unsplash)

Every session since the U.S. Supreme Court’s landmark ruling in NFIB v. Sebelius that the federal government could not require states to expand their respective Medicaid programs, Texas has passed on expanding its own.

The expansion would increase both the number of people eligible under the government insurance program and the federal government’s share of financing.

Rep. Lyle Larson (R-San Antonio) has picked up that baton this session, arguing for Medicaid expansion in the San Antonio Express-News.

“When folks who don’t quite qualify for Medicaid need routine medical care, visiting an emergency room is often their only option. Using an emergency room for primary care is the most expensive way to obtain health care,” Larson wrote.

The expansion would open coverage under the program to anyone with an income at 138 percent of the federal poverty level — or for an individual making $17,600 per year and a family of four making $36,200 per year.

The criticism of this, in the likely scenario that the given patient cannot afford their emergency room bill, is often that the taxpayer’s eventually left holding the bag.

Rep. Jacey Jetton (R-Richmond), a freshman who is on the Public Health Committee, told The Texan he sees “giant red flags” in a potential expansion of Medicaid in Texas. 

Jetton stated upfront he’s not a public health expert but comes from a business perspective — specifically citing the cost and operations of such an expansion.

“One thing about Medicaid expansion that is often overlooked is that the state must spend millions before the federal money comes back at all,” Jetton emphasized. 

“The argument that this is something we need to do now because we have a revenue shortfall is just wrong because we’re increasing our spending to try and get more federal monies. That’s not how we’re going to balance our budget.”

Federal aid is given to hospitals to help defray costs of care for patients who cannot pay their bills. In that respect, taxpayers foot the bill for uncompensated medical care. A 2017 American Hospital Association whitepaper marks that total at $57 billion nationwide.

But government-run insurance is also a cost fronted by the taxpayer, just through a different avenue. The current two-year budget for Medicaid in Texas is $66.5 billion — nearly two-thirds of which is paid directly by the federal government.

That amounts to $26.6 billion shouldered by the state. Medicaid also often costs more than was budgeted in Texas, requiring reconciliation. For example, the 2020-2021 budget requires a $2.1 billion reconciliation.

A Bush School of Government and Public Service analysis by Laura Dague and Constance Hughes estimates expansion would increase that total expenditure to $72.5 billion, with a state-financed increase of $600 million.

Dague concludes, “The experience of other states shows that it is feasible to implement an expansion with required state funding sourced in large part from budget offsets and provider taxes and very little general revenue. The potential fiscal benefits of expansion relative to its costs should be carefully considered by decision-makers in Texas.”

Jetton is not convinced, however, stating further, “We’ve also seen from other states that those initial projections haven’t come out as intended. They’ve all cost the states more money and they’re not seeing improved healthcare for those who need it the most.”

For perspective, that additional cost is roughly two-thirds of the state’s projected 2020-2021 biennium budget shortfall — and that’s on top of Texas’ current Medicaid costs. The higher federally financed proportion only applies to the potential expansion and would not apply retroactively.

Larson’s case is largely built on the fiscal argument behind expansion. “With an increase in health-related spending, reduced uncompensated care costs and rises in productivity, Texas would experience gains of $45.3 billion in gross product and $29.4 billion in personal income for the 2022-23 biennium,” Larson wrote, referencing an analysis by Waco-based economist Ray Perryman.

But that money, whether from the state or federal government, ultimately has one origin: the pocket of the taxpayer.

Jetton stated, “The increased federal spending is very worrisome and our children and grandchildren down the road will be footing the bill on this. It’s unfair to look at the federal government as an everlasting flow of dollars to the states to keep us afloat.”

“There are other things we need to work on to improve affordability and access,” Jetton added, pointing to the expansion of healthcare cost-sharing programs beyond religious affiliations.

Jetton also suggested price transparency and the elimination of “surprise billing” — when a patient is stuck after the fact with a bill for the difference between their healthcare provider’s charge and what their insurance will cover — as options to reduce costs.

According to the left-leaning Kaiser Family Foundation, 771,000 of Texas’ uninsured population fell within the Medicaid expansion gap before the pandemic. Had Texas expanded Medicaid, those individuals would have been eligible to draw Medicaid benefits.

However, just because the option is there doesn’t mean an uninsured person will exercise it. That same Kaiser analysis found that 662,000 Texans were eligible for Medicaid as it is currently constituted.

The Bush School analysis estimates an increase of eligible Texans due to COVID-19 related unemployment to 1.27 million total. But assuming every newly qualified person or family would choose to enroll is not supported by even recent history.

It is no small part of the healthcare story that so many choose not to enroll in the program even if it’s available. Healthcare, in Texas especially, is often viewed singularly through the prism of insurance coverage.

And despite the large numbers of patients choosing not to enroll in Medicaid, enrollment in the program dwarfed the original projections 2 to 1. According to the conservative Foundation for Government Accountability, the unexpected swell in both enrollment and costs per person has created 157 percent cost overruns.

On the flip side, Medicaid expansion has helped some hospitals balance their books for the first time. One example is Cook County Hospital in Chicago, which attributed its first-ever year in the black to the expansion.

Additionally, many doctors do not accept Medicaid patients due to the program’s burdensome compliance regulations. Dr. Barbara McAneny, president of the American Medical Association, said in Senate testimony that she lost $100,000 to compliance costs in an effort to qualify for the highest level of reimbursement.

Doctors like McAneny have declined Medicaid outright at their practices. This, to some degree, decreases options for patients enrolled in Medicaid and increases their reliance on the emergency room care at the center of the expansion calls.

The other question with expansion concerns potential fraud. An audit of Louisiana’s system found that after the state expanded Medicaid in 2016, thousands of ineligible patients received public coverage, costing the state as much as $85 million.

Earlier this year, Texas House Speaker Dade Phelan (R-Beaumont) was asked about Medicaid expansion. He stated a discussion could be had over the issue, but only from a revenue-neutral perspective that “doesn’t tie us to billions of dollars in future expenditures.”

Jetton sees the chances of Medicaid expansion passing as “pretty slim,” but warned that if it does, money will have to be taken from somewhere else in the budget to finance it.

“If it was a good idea for Texas, we would’ve seen it pass in past years,” Jetton concluded.

It is not as if the state has ample slack financially as it prepares its next-biennium budget. The pandemic has shrunken tax collections and left many unemployed.

Regardless of arguments on one side or the other, the issue polls well among Texans. A recent Hobby School of Public Affairs poll marked support for expansion at 69 percent.

A Message from RJMN President Ed Davis

Dear Friend of RJMN:

            A sunrise every morning is a confirmation that the Creator still loves us and the dawning of a new year presents an opportunity to contemplate and pray about how we may serve Him and our fellow citizens in the days to come.

RJMN set its goals for 2018 to rebuild its website, re-establish our presence in the field of restorative justice, enlarge the board of directors, and build financial strength, as well as maintain our Front Door, First Contact, and Welcome Back programs.  

Briefly, our Front Door initiative is designed to assist and encourage families experiencing the removal of a loved one to the criminal justice system. Participating chaplains in the prisons that process new inmates send us the names and addresses of inmate family members and we respond with a letter containing resources available to them, of which we are one. In 2018 1,141 letters were sent. First Contact volunteers go into the Huntsville “Walls” unit the night before release to encourage those destined to be released the following day and provide about institutions committed to assist previously incarcerated persons transition back into society. We addressed 6,333 inmates in 2018. The following morning our Welcome Back volunteers meet and greet and supply information to family and friends who arrive at the Welcome Center to pick up “their release.” (In 2018, 14,405 people were served by our volunteers while they waited for the release of their “special person!” Roughly 30,000 inmates are released in Huntsville annually!

For 2019 we aim to strengthen relationships with those who work in the field and build partnerships to increase the effectiveness and scope of operations and increase staff hours. There is more to do than our administrator, board, and volunteers have been able to do. Thus, recruiting more volunteers and increasing our administrator’s hours of service are key objectives and they are within reach. Yes, I know that means our contributor base must be expanded, but I am not pessimistic! Emmett Solomon, our founder, I believe, would be pleased with the progress made in to 2018.

Please go to our website at rjmntexas.com and take a look. Also check out our facebook page by “clicking’ on the icon on the top right just above our menu on the home page, or log onto your facebook account and type in RJMNofTEXAS to access it. It’s nice to have friends! Thank You!

Building a Better Texas Together in 2019

Since the Texas Legislature is in session from January through May, everyone concerned with improving our justice and penal systems must be prepared to approach your legislator-state representative and state senator- about reform. I pray that each of you reading this message will express yourself in support of legislation to improve justice in Texas. Below are four legislative proposals that we at Restorative Justice Ministries Network think need your attention. Over the course of the five month legislative session we will post other measures for your attention and urge you to write or email your views to your state elected officials.

There is good reason to redefine the definition of adulthood in Texas as one who is 18 years of age rather than 17. Brain research actually reveals to us that the female brain does not reach maturity until 22; for males it’s 25. This modest proposal passed in 2017, but vetoed by the governor, has been reintroduced in 2019.

Another proposed bill reduces the penalty for possession of small amounts of marijuana. (It does not change penalties for manufacturing and sale of the substance). The cost of prison incarceration in Texas is $31,000 a year to the state. County jail incarceration is more costly. Economic issues are certainly not the total cost of course. Many professions and occupations are barred to those with a conviction and even those with “class B” misdemeanor charges never brought to trial find many doors closed to them for decades.

A huge issue out in the open this session is inequality in the dispensation of “justice” based upon income. Wealth determines who, following arrest, languishes in jail while awaiting trial. One cannot report to work from jail. One cannot feed the family, pay the rent or care for children while in jail. Who is released prior to indictment or trial should be based upon their danger to society not social class or ability to pay bail. There should be no debtor’s prisons in the 21st century.

The Driver Responsibility Surcharge is an administrative penalty added to local fines assessed on drivers convicted of class “C” misdemeanor traffic violations such as speeding, failure to produce proof of insurance and improper turn. Failure to pay or inability to pay results in suspension of the driver’s license. Approximately half the assessed penalties are uncollected. As a result, this law has taken away tens of thousands of people’s mobility and means to get to work.  Both political parties have called for its repeal. Two of the proposals above, raise the age and reduction of the penalty for possession of small amounts of marijuana, would modestly reduce the prison population, ruin fewer lives with the stigma of a conviction and save the taxpayer money. 

Much can be done to increase public safety through revision of public policies. Again, I urge you to join us in approaching your members of the Texas House and Senate about positive change in sentencing policies, bail policies in our counties, excessive penalties for minor infractions of the law, and the age of adulthood. Our website has a direct link to the Texas Legislature. Go to www.rjmntexas.com and click on “resources and information” and then “online information sources.” You may also go directly to the state legislature website through https://capitol.texas.gov.Edwin Davis – President RJMN Texas