Lawmakers using Texas House rules to kill legislation

Bills are dying at an alarming rate in the Texas House — Democrats have killed GOP bills, Republicans have returned the favor, and there’s even been party-on-party violence in the chamber.

In the span of a week, two high-priority bills died in the House three times. The child gender modification ban, Senate Bill (SB) 14, was tanked twice, and one of the lower chamber’s priority border security bills perished — SB 14 passed on the third try last Friday and finally on Monday. Each died by the hands of a point of order, a mechanism that kicks a bill off the agenda and sends it back to committee to address a procedural error in the bill.

These were the most notable bills that died from points of order, but far from the only ones.

Points of order are a seminal part of the state’s legislative process, especially in the House where events are less scripted than in the upper chamber. Parliamentarians Sharon Carter and Hugh Brady, who have served the House since the 2019 session, field the arguments on alleged procedural errors and then make a recommendation to the speaker on how to rule.

Overall, there have been 112 points of order during this session as of last Tuesday, and from Tuesday through the midnight deadline Thursday, around 50 more were called on bills and amendments.

The most points of order in a session came in at 218 in 2007, with the 1939 session just behind at 210, according to the Legislative Reference Library. 

Rep. Mary Gonzalez (D-Clint) pulled the trigger on both haymakers to SB 14, both of which concerned the bill’s “materially misleading” background and purpose sections. The first highlighted a misspelling of the “American College of Pediatricians” as the “American College of Pediatrics.” The bill was swiftly recommitted to committee, adjusted, voted out, and set on a calendar.

The second point of order, on Friday, hit the mark on the case that the new background and purpose was too short and vague to adequately explain the bill.

One of the House’s border bills — Rep. Matt Schaefer’s (R-Tyler) House Bill (HB) 20, a would-be invocation of the constitution’s “invasion” clause to create the Border Protection Unit — was an entirely different story. Speaker Dade Phelan’s (R-Beaumont) ruling found that the bill as written amounted to a declaration of war, thus extending beyond the “self-defense” scope. Much of that proposal was then tacked onto HB 7, another border bill, as an amendment.

The high-level importance of these bills made their deflation a massive story, but lesser known bills have suffered similar fates.

A legislative eye-for-an-eye has caught on like wildfire in the House, leading to bills being challenged and even killed left and right.

Rep. John Bucy (D-Austin) kicked off the firefight last Monday when he killed Rep. Valoree Swanson’s (R-Spring) HB 153, alleging a violation of House Rule 4, Section 32(c)(1) “that the background and purpose statement in the bill analysis is substantially or materially misleading.”

That’s a fairly standard point of order, but its details established a new precedent, at least in the minds of legislators. The speaker’s ruling, informed by the parliamentarians’ analysis, stated that, “The complained-of statement begins with the phrase ‘concerns have been raised’ and then recites several allegations of intentional, unlawful behavior. The subsequent sentences do not provide any objectively reliable support for this list of alleged concerns.”

The ruling then states that bill analyses must supply “objectively reliable information,” pointing to a 2019 ruling by former Speaker Dennis Bonnen (R-Angleton) on a point of order brought by former Rep. Jonathan Stickland (R-Bedford) against the session’s Mental Health Care Consortium proposal.

Phelan’s ruling on HB 153 continues, “Committee chairs have been expressly advised that ‘[v]ague references … in supporting a factual statement do not meet the [objectively reliable] test.’”

That is a reference to the House’s publicly available guidance for committee chairs, which explains that neither “vague references to interested parties” nor “incorrect or incomplete” stated facts in the bill analysis meet the rule’s standard.

Shortly after Swanson’s first bill died, a second one of hers, HB 232, suffered a similar fate on a different flaw but did not receive a ruling. The bill was instead postponed.

Swanson returned serve later that evening, killing Bucy’s HB 3825 by the same point of order for bill analysis vagueness on a line that read, “Current law has been largely ineffective in preventing businesses from posting mugshots online and then charging for their removal.”

Multiple bills have died on the same point of order, such as Rep. Ernest Bailes’ (R-Shepherd) HB 5351 — a local bill that was likely killed as retribution for his objecting to the Public Education Committee meeting on Wednesday, a maneuver that caused another school choice test vote on Thursday evening. After deliberation with the House parliamentarians, during which one mentioned the bill analyses’ line “it has been suggested that…,” Bailes’ bill was postponed until after the session.

The very next bill passed was authored by Rep. Will Metcalf (R-Conroe) and had the exact same framing in the background and purpose section, but no point of order was called — more evidence for the existence of the vendetta.

The day after Bucy opened the floodgates on Monday, the same point of order on background and purpose was made seven times with mixed results. More yet were called Wednesday and Thursday, none of which landed.

Previous bills have passed with the language of vague references to interested parties language before — take 2021’s “Save Girls’ Sports Act” during the third special session. The bill analysis for that read, “Concerns have been raised that the entrance and participation of biological males into female athletic competitions endangers girls’ safety and inhibits girls’ access to the equal opportunities guaranteed by Title IX.”

Rep. Joe Moody (D-El Paso) raised a point of order highlighting the materially misleading bill analysis section of the rules, but it was withdrawn, indicating an unsuccessful attempt. The bill continued to be debated before eventually passing.

Last week, Rep. Sergio Muñoz, Jr.’s (D-Palmview) HB 895 was point of ordered by Rep. Tony Tinderholt (R-Arlington) — unsuccessfully — on the same background and purpose grounds: its explanation reads a slightly more specific “health care providers have raised concerns… .”

There are various explanations for the apparent spike in points of order, at least in the last week and a half, including the discovery or rediscovery of the “vague background and purpose” vulnerability. Another from the Democratic side is that Rep. Trey Martinez Fischer (D-San Antonio), this session’s new House Democratic Caucus chair, is something of a specialist in parliamentary procedure and killing bills by points of order.

Members found another drafting error that killed a few bills ahead of last week’s deadline. Rep. Steve Toth’s (R-The Woodlands) HB 3826 was killed by Rep. Gina Hinojosa (D-Austin) on the grounds of a misleading bill analysis on Thursday ahead of the deadline.

The exact error concerned the “savings clause” — a minor part of legislation, sitting just above the effective date at the bottom of proposed bills, that establishes guidelines for actions taken related to the proposal that predated its effect. Toth’s bill analysis, which was drafted by the Texas Legislative Council with input from members and their staff, did not effectively summarize the latter half of the savings clause.

Toth returned the favor by calling the same point of order on Hinojosa’s HB 649 later that evening; Rep. Terri Leo-Wilson’s (R-Galveston) HB 4953 was killed in the same manner, the last bill considered before the clock struck midnight.

Especially this session, Phelan has been intentionally deferential to the House rules and the chamber parliamentarians, intentions he made clear on the first day of the 88th session.

“All of that work [this session] will be rooted in one of the most fundamental and necessary elements of this institution, the Texas House Rules,” Phelan said after being sworn in for his second term as speaker. 

“As the most deliberative body in this nation, our rules matter. My advice to new members is to know them, love them, and be certain we will enforce them. Because our rules keep the game fair, but they do not dictate the outcome.”

Ultimate authority to rule or not to rule lies with Phelan; the House rules state, “The speaker shall decide on all questions of order.” Responsibility for scrubbing bills and supporting documents for points of order lies with the legislative and committee staff, but members have received advice, particularly on bills themselves, from the parliamentarians.

The speaker’s deference to the parliamentarians has been criticized by those who place a higher emphasis on policy than the calling-balls-and-strikes of procedural adherence — none more so than the Republican Party of Texas (RPT).

On Thursday, May 11, the Texas GOP released a statement — ahead of the third consideration of SB 14, which did finally pass Friday — taking aim at the speaker.

“Should Speaker Phelan seek to delay or sustain a Democrat point of order against SB 14, we ask every Republican member of the Texas House to appeal the ruling of the chair and vote to pass this legislation immediately,” the party said. Challenging the ruling of the chair is always an option, but is seldom used.

All eyes were on SB 14 Friday and whether Democrats could pull another valid point of order out of a hat. Republicans’ runway for a redo was shrinking.

Democrats called three points of order, none of which hit the mark. Rep. Erin Zwiener’s (D-Driftwood) second one came on allegedly flawed background and purpose grounds, attempting to draw out the same ruling that sunk Swanson’s HB 153 and jumpstarted the run on bill analyses.

On the third try to pass SB 14, Republicans went back to the same background and purpose statement that was killed on the first go-around but with the misspelling fixed. That point of order was unsuccessful and withdrawn.

Based on statistics provided by Texas Legislature Online, former speakers Pete Laney (D-Hale Center) and Tom Craddick (R-Midland) both had a 40 percent rate of sustaining points of orders. Former Speaker Joe Straus’ (R-San Antonio) rate was 18 percent. Phelan’s sustain rate on House bills in the 87th regular session was just 14 percent.

In order to save time, many points of order never receive a ruling and the flawed bill is simply withdrawn, so those numbers are not one-to-one comparisons of truly successful points of order. But it also omits documentation of exactly what was argued and ruled beyond just citation of the rule challenged.

With deadlines arriving and sine die approaching, using points of order as a bill-killing device is in its prime, just in time for what seems to be a legislative dogpile on flawed background and purpose statements.

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