The day Gov. Greg Abbott and his school choice allies have long awaited is here: the Texas House will debate its education omnibus legislation, which includes $10,500 education savings accounts (ESA), on Friday.
The House Calendars Committee set the legislation on Friday’s calendar along with a constitutional amendment to create a school security fund, something that is likely to pass with far more ease than its counterpart.
It is the first time the lower chamber will debate actual school choice legislation on the floor, something that has proven a tough hill to climb due to opposition not only from Democratic members but Republicans too.
House Bill (HB) 1 combines the ESA program with $4,000 bonuses for full-time teachers and an increase to the school district basic allotment. The massive 177-page bill is an attempt to load up the proposal with enough carrots to draw enough “yes” votes from ESA skeptics to get the bill to Abbott’s desk.
The bill’s fiscal note is a large one: a $7.5 billion appropriation through the end of the 2024-2025 biennium. Through 2028 the cost is set to increase to $11 billion. It’s a very large expenditure that the state currently has wiggle room to take on, due to the historic budget surplus taken in the last couple of years from a rebounding economy and rising inflation driving up consumption tax collections.
If passed as is, the state budget will be on the hook for it in perpetuity — something Abbott and other proponents would be happy with so long as it gets the ESAs across the finish line. The ESA portion carries a fiscal note of $500 million, the amount approved as a contingent rider in the budget passed earlier this year.
While eligibility is universal, at that appropriation amount — and accounting for administration costs — the ESA program could reach around 40,000 children. Any future growth would be contingent on increased appropriations.
Chairman Brad Buckley (R-Salado), HB 1’s author, has said that this latest version is agreed to by Abbott’s camp, but it’s not guaranteed to have the votes in the House. There is a 24-vote delta between the 76-person majority needed to pass the bill and the 52 votes against the April “Herrero amendment” that served as a test vote on the issue.
Coincidentally, there were exactly 24 Republicans, mostly from rural districts, who voted in favor of the Herrero amendment, signaling opposition to ESAs or a similar voucher program. However, there were 10 Republicans, including Buckley, who white-lighted — voted “present not voting” — as a quasi-protest of the test vote.
Presuming each of those 10 members votes for HB 1, that puts the delta needed at 14 just to get the bill over the line. Some GOP members, such as Reps. Drew Darby (R-San Angelo) and Ernest Bailes (R-Shepherd), have made their opposition clear to any bill that has ESAs in it.
Once the bill is laid out, a litany of amendments are sure to follow — perhaps even points of order, parliamentary maneuvers that kill legislation from that day’s calendar — by those staunchly opposed to the ESAs.
One amendment that is sure to come, and come early, will be to strip the ESA section out of the bill entirely. Democrats have 64 seats in the House, and only need 12 Republicans to join them to tank ESAs on the floor.
Under that scenario, even if the Senate puts the ESA section back in after passage of the House, the legislation would be vulnerable to a point of order back in the lower chamber.
Should that happen, it’ll turn what is expected to be a long night into a short evening. But if that hurdle is cleared, other amendments will likely be in the cards, such as replacing the 25,000-student enrollment cap for the ESA program; that cap, which increases to 50,000 in the second year, was in the originally proposed version of HB 1 from the third special session.
That cap was removed in the latest version filed by Buckley.
Another possible amendment to watch for is the ESA’s sunset date. The current sunset date in the proposed legislation is 2029, in line with the sunset review for the Texas Education Agency (TEA) — the agency tasked with enforcing HB 1 should it pass. Sunset reviews of behemoth agencies are long, complicated affairs that struggle to yield as robust an analysis of specific programs as when those programs are isolated.
In the original bill, the ESA sunset date was 2027, separating the program itself from the TEA. Replacing that item could put those of the 24 Herrero amendment Republicans on the fence about the bill, more amenable to supporting HB 1.
Ultimately, the House passage would only be the first hurdle. The following two are whether the Senate would accept the lower chamber’s blueprint, or make their own adjustments — sending HB 1 to a conference committee for the final plan to be hashed out — and finally whether Abbott will accept it.
Abbott has said previously that he would veto any education bill that didn’t have ESAs in it.
If nothing gets across the line, the ball would be thrown back into Abbott’s court, leaving him the ability to call another special session either in December or early next year — or to throw in the towel until 2025 and jump headlong into the primaries.
He wouldn’t be the only one; former Gov. Rick Perry promised a forceful reprisal in the primary for Republicans who voted against the school choice proposal. Though he’ll be preoccupied with his own re-election next year, Sen. Ted Cruz (R-TX) has promised the same — as has the American Federation for Children Victory Fund, a pro-school choice PAC.
Supporting potential primary challengers is one of the few points of leverage the pro-school choice side has at its disposal, but it’s on a time clock with an expiration date of December 11. After that, the primary fields will be set one way or the other.
Of the 24 Herrero amendment Republicans, two are not seeking re-election — state Reps. Four Price (R-Amarillo) and John Raney (R-College Station). Among the rest, 15 already have primary challengers filed.
Heading into Friday, school choice as a standalone issue has proven to simply not have the votes. But in the omnibus, Buckley and those in his corner hope enough on-the-fence Republicans, or maybe even Democrats who occupy committee chairmanships, pull the lever for the school funding and teacher pay provisions, holding their nose on the ESA portion.
On this more than anything else, it’s a numbers game and legislative inertia will change with each tweak made to the bill on the floor. Buckley is in store for a very long day, a fact of which he is well aware, and ESA opponents are ready to throw the kitchen sink at him.
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