July 3, 2017

This week's Capitol Roundup :

  • Tensions remain as session closes with a bang
  • Texas commercial contractors fare relatively well amid acrimony in Austin
  • Abbott's special session outlines 20 issues for Straus and Patrick to hash out
  • Bills you'd never believe: AGC-TBB compiles list of craziest captions

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AGC Texas Chapters

Quote of the Week
"We're kind of running out of things to do."
-State Rep.Tom Craddick

The Midland Republican and former speaker of the Texas House (2003-2009) made the comment in an interview last month in reference to the relatively small number of bills - 1,211 - passed this session, the fewest since 1995. 
Looking back as the dust settles in Austin, looking ahead as lawmakers to reconvene

tight pocketbook due to declining oil and gas revenues; A zealous Senate countered by a cautious House; a noncommittal governor approaching a bid for re-election; a faction of House members set on killing hundreds of bills; a widening gap between the interests of business leaders and social conservatives and between state and local interests; and a hyper-partisan 2016 national election cycle.

The results after 140 days in Austin? The lowest rate of bill passage - 12.4 percent - since 1891; Threats of physical violence among lawmakers; A special session featuring 20 items up for debate, including contentious bathroom regulation; House and Senate leaders - both with higher disapproval ratings than when session began - forced to come together after holding each other's bills hostage; and a Texas electorate holding firm in its faith in the state's economy.

Gov. Greg Abbott looks on as Lt. Gov. Dan Patrick (left) and House Speaker Joe Straus shake hands May 27 at the Capitol.

Though many try, it's near impossible to predict how the ingredients of the political brew floating around Austin in January will actually turn out come June. There is no calculus for how the varying Lone Star interests - state vs local; social vs economic; urban vs rural; etc. - will stack up against the inner political workings under the Hill Country granite and limestone Capitol dome in Austin.

With a loaded special session ahead, the state's leaders seek to shift the tensions of the most grueling month of May in recent memory from a near fistfight on the House floor to meaningful conversations of consensus on issues affecting all Texans - from property taxes and school finance to abortion funding and deciding who can use what bathroom.

Political calculations aside, the Texas commercial construction industry managed to make meaningful reforms while fending off harmful legislation. Like most legislation this session, AGC Texas Building Branch bills were caught in the House-Senate crossfire, but, nonetheless, two major bills reached the finish line and were signed into law. Though proving to be relatively chaotic and unpredictable, the 2017 session has left AGC-TBB with plenty of work to be done in the way of studying and framing key issues and building alliances ahead of what's slated to be a taxing primary election season. 
The 85th Texas Legislature: Construction Industry Roundup

Construction Bills
Signed Into Law...

School background checks for contractors - HB 3270 by Bohac/Larry Taylor (AGC-TBB bill)
Attorney's fees for state breach of contract (sovereign immunity) for amounts in controversy less than $250,000 - HB 2121 by Cyrier/Hughes (AGC-TBB bill)

Right to repair ADA defects (60 day period) - HB 1463 by Smithee/Seliger 

E-Verify For TxDOT (SB 312 - section 24 by Nichols/Larry Gonzales) and Railroad Commission (HB 1818 - section 6 by Larry Gonzales/Van Taylor), passed via House floor amendments to sunset bills-applicable to all general contractors and subcontractors. 

Non-Texas venue/choice of law contractual provisions voidable for construction projects in Texas - SB 807 by Creighton/Workman 
Ban on state requiring A/E to indemnify or defend state's negligence - HB 3021 by Phelan/Hughes
Ban on local government's fees on new construction to subsidize affordable housing ("linkage fees") - HB 1449 by Simmons/Nelson
Expanding captive insurance - HB 1187 by Capriglione/Nelson - authorizes provision of credit life and credit disability insurance

Dead Bills...
Ban on project labor agreements - SB 452 by Hancock/Parker - Passed Senate 20-11, died in House Calendars (ABC bill)

Attorney's fees for state breach of contract (sovereign immunity) for amounts in controversy $250,000 including oral directives - HB 2128 by Cyrier/Hughes. Passed House 143-0. Died in Senate State Affairs. 

Also amended by Rep. Cyrier onto a state contracting bill (SB 533 by Nelson/Geren) on the House floor and passed the House 139-0, but was stripped in conference committee in the last three days of session. Maybe caught up in TxDOT, eminent domain, aggregate co-op purchasing crossfire. (AGC-TBB bill)

Other recovery of attorney's fees for state breach of contract bills:
  • CPRC § 38.001 - HB 744 by Farrar (Meyer floor amendment) - Passed House 103-45. Died in Senate.
  • CPRC § 38.001 - HB 2457 by Meyer - Passed House Civil Jurisprudence 7-0. Died in House Calendars.
  • Recovery for frivolous state suits - SB 813 by Hughes/Meyer - PASSED, BUT VETOED
Right to repair commercial construction defects - HB 2343 by Workman. Passed House Business & Industry 7-0. Set on House Calendar but died due to chubbing until the deadline. Re-emerged as a draft floor amendment to SB 1215 but was negotiated out of the bill, which was vetoed anyway. Candidate for interim study. (AGC-TBB bill)
Contractors not liable for design defects - SB 1215 by Hughes/Shine. Passed Senate 29-2. Created a firestorm in House involving 20+ groups. Then passed House as a negotiated interim, joint select committee on all construction liability issues. PASSED, BUT VETOED (TCA bill)
Uniform general conditions (UGCs) for school construction projects - HB 3434 by Koop. Passed House Public Ed 11-0. Set on House Calendar but died due to chubbing until the deadline. (AGC-TBB bill)
Adopting prevailing wage studies - HB 2689 by Murphy/Hughes. Never received a hearing. Problems with unions' concerns over amendments should the prevailing wage issue reach the Floor and with large government entities adopting small government entities' studies. (AGC-TBB bill)
Worker misclassification on public works projects - HB 3357 by Romero. Passed House Business & Industry 6-0. Died in House Calendars. (AGC-TBB bill)
Lien law modernization - HB 3065 by Deshotel/Hinojosa - passed House Business & Industry 7-0, died in House Calendars (AGC-TBB, ABC, TCA bill)
Statute of repose (reduction to 7 yrs) - HB 1043 by Meyer. Died in House Civil Jurisprudence committee after being on the chair's "vote out" list. Author had all 9 committee members as committed "yes" votes.
E-verify for all state contracts - SB 23 by Schwertner (no House companion. Rep. Geren picked up). On of Lt. Gov. Patrick's Top-30 priorities. Applied only to general contractors, not subs/suppliers. Passed Senate early, but died in House.
Abuses in the areas of (1) school construction defects, (2) purchasing co-ops, (3) alternative delivery procurement, and (4) economic development corporations procurement - HB 3040 by Cyrier/Larry Taylor - odd referral (House Appropriations) and no hearing (AGC-TBB, Engineers, Architects bill)
Standalone EDC procurement abuse bill - HB 622 by Leach - Died in committee
Many construction issues popped up early in the Session but fizzled before gaining traction, many due to AGC-TBB's opposition:
  • expanding permissible uses of job order contracting (JOC)
  • expanding sovereign immunity
  • expanding procurements via purchasing co-ops
Workforce Bills
A whole slew of workforce education/vocational bills were signed into law dealing with the intersection of high school, JUCO, and higher education relating to vocational coursework, credits, and funding. SB 22 (Larry Taylor), SB 634 (Estes), SB 2105 (Miles), HB 108 (Alvarado), HB 136 (Bell), HB 639 (Doc Anderson), HB 2431 (Deshotel), HB 2994 (Ashby), HB 3349 (Gervin-Hawkins).

Workforce: plumbers - HB 3049by Guillen/Creighton - Incentivizes high school students to obtain plumber's license by crediting up to 250 hours thru coursework 
Workforce: AC/fridge contracting and certification - HB 3029 by Frullo/Whitmire - eases entry to trade by applying classroom coursework hours to certification 
New "Industrial electrician" license with different reqts - HB 1698 by Kuempel/Estes 
Ban on local fees on electricians - HB 3329 by Paddie/Campbell 
Requires state employee contract purchasing/procurement training - SB 255 by Zaffirini/Simmons 
Cleanup of 2015 state contracting reform bill from 2015 (SB 20) - SB 533 by Nelson/Geren 

Preference for American iron and steel in all state and local construction contracts - SB 1289 by Creighton/Paddie - lots of loopholes (availability, quantities, quality, "public interest", 20+% cost savings, electrical components, international agreements) 
Omnibus licensing regs reduction - SB 2065 by Hancock/Kuempel - eliminates some regulations regarding construction of cosmetology buildings/facilities, "temporary common workers" 
New statewide laws of interest

Ban on sanctuary cities (police can check immigration status on arrest or detention) - SB 4 by Perry/Geren - tied up in federal courts after being signed by Abbott

Ban on local Uber/Lyft regs - HB 100 by Paddie/Schwertner

Ban on texting while driving - HB 62 by Craddick/Zaffirini

Straight-ticket ban re: political parties (effective 2020 election) - HB 25 by Simmons/Hancock

Require photo ID to vote (previously struck down by court) - SB 5 by Huffman/Phil King

Driverless cars authorized on roads - SB 2205 by Hancock/Geren

Hail litigation reform (TLR bill) - HB 1774 by Bonnen/Hancock

Telemedicine authorization - SB 1107 by Schwertner/Price

Dallas, Houston pension deals - HB 3158 by Flynn/West, SB 2190 by Huffman/Flynn

Content and ordering of ballot propositions  (state's go first and use numbers, local's go second and use letters) - SB 957 by Campbell/Laubenberg

Vouchers, school finance - failed to pass. Senate pushed vouchers. House pushed school finance. Round 2 in special session.
Special session agenda outlines divide between traditional and newcomer conservatives

After the  Texas Legislature adjourned on Memorial Day, the idea of a special session seemed to be on the one hand a necessity. But on the flip side, it appeared to be a fruitless endeavor considering the events of the preceding 140 days.

Not only were Lt. Gov. Dan Patrick and House Speaker Joe Straus feuding over their latest round of political "chicken" - each side holding the other's priorities hostage to the political process - but a palpable divide in the House between Tea Party and traditional conservatives had resulted in hundreds of bills being "chubbed" (basically, stalling bills past deadlines) to death on the House floor. 

Since then, Straus and Patrick have been loading their political firepower and exchanging barbs as they continue to place the blame on the other over TV and radio waves across the state. Meanwhile, Gov. Greg Abbott has declared 20 items as eligible for debate during the special session slated to begin in Austin on July 18. Recently, Abbott has joined Patrick in criticizing the speaker. 

Gov. Greg Abbott

"In my conversations and also in my perceptions, it seemed like [Straus'] priorities differed from, for example, these priorities that I have on the special session call," Abbott said. "His priorities differed from the deals that we were trying to broker at the end of the session."

Lt. Gov. Dan Patrick had been urging Abbott to call a special session ever since the Legislature failed to agree on two of his top aspirations for the session - a change to the way local property tax elections are held, and a bill to regulate which bathrooms can be used by transgender people. Now, both of those issues are on the special session docket. 

House Speaker Joe Straus , who had been optimistic about avoiding a special session, prioritized passing the budget and a "sunset safety net" bill to keep certain state agencies funded for two more years until their periodic reviews could be finished.
Lt. Gov. Dan Patrick
While the House and Senate agreed on a budget, Patrick held up the sunset bill as collateral for the House not passing his versions of the bathroom bill and property tax bill. However, Straus had made clear that he would not budge on the Senate's version of the property tax bill dealing with local rollback elections. 

Now, the governor is calling for many of the big-ticket items that the Legislature failed to pass in five months - including most of Patrick's wish list - to be worked out in the coming weeks. In a recent email to supporters, Straus indicated his Senate counterpart was to blame.

"Why is a special session necessary? During our regular 140-day session earlier this year, the Texas Senate never voted to keep a number of state agencies, including the Texas Medical Board, in operation," the email said. 

Speaker Joe Straus
Perhaps most interesting will be how the divide plays out among conservatives - particularly in the House - willing to compromise and move legislation and those self-described 'Freedom Caucus' members who appear to stop at nothing to kill legislation as protest against a speaker they see as too moderate. 

The divide was highlighted during the so-called 'Mother's Day Massacre' when Freedom Caucus members put a halt to over 100 House bills as a deadline for the legislation passed. Among those bills was an expansion of stem-cell treatment that could help one House member's wheelchair-bound wife. 

"It does some remarkable things," Rep. Drew Springer, (R-Muenster) said through tears. "It might give somebody like my wife a chance to walk."  

The interlude put a brief pause on the "massacre" of bills, but the Tea Party-aligned group continued momentum up until the Legislature adjourned, killing over 250 House bills in the final week by "chubbing," or delaying votes. 

All the while, the Texas Legislature accumulated its lowest rate of bill passage since 1891. Only 12.4 percent of the 6,631 bills - second-most in state history - filed this session were actually passed and sent to the governor. Fifty of the 1,211 bills passed have been vetoed by Gov. Abbott. 
Sen. John Whitmire

A Democrat from Houston, Sen. John Whitmire, who has served in the Legislature since 1982, attempted to sum up the seemingly contradictory statistics:

"I think you can stand up at a town hall meeting and say we have too many laws and get a pretty good round of applause, probably in any community," Whitmire said. Republicans say they want smaller government but are filing more bills every year. A lot of them file bills so they can put something in their newsletter."
Abbott's agenda for July's special session
The special session starts July 18 and can run no longer than 30 days. Gov. Greg Abbott can keep calling as many special sessions as he wants, and he alone controls what the Legislature can consider in a special session.
  1. Sunset bill for Texas Medical Board (and other minor agencies)
  2. Prioritizing school spending to give teachers a pay increase of $1,000
  3. Administrative flexibility in teacher hiring and retention practices
  4. School finance reform commission
  5. School choice for special needs students
  6. Property tax reform, automatic rollback elections
  7. Caps on state and local spending
  8. Preventing cities from regulating trees on private land
  9. Preventing local governments from changing rules midway through construction projects
  10. Expedite local government permitting
  11. Requiring voter approval for city annexations
  12. Preempting local texting-while-driving laws
  13. Bathroom fight, mostly for school bathrooms
  14. Ban government collection of union dues
  15. Ban on taxpayer funding of abortions
  16. Insurance reform re: abortion
  17. Strengthening abortion reporting requirements for health complications
  18. Strengthening patient protections re: do-not-resuscitate orders
  19. Cracking down on mail ballot fraud
  20. Extending the maternal mortality task force
Biennial Bill Caption Contest

Every two years, the staff at AGC-TBB compiles a list of bill summaries - "captions" - that by some stroke of luck or political calculus beyond our wildest imaginations have actually become bills for lawmakers to consider. This year's list of contenders (with a winner announced below) is as follows:


1. Relating to the operation of an electric unicycle


2. Encouraging the President of the United States to refrain from threatening elected officials


3. Relating to operating a motor vehicle while another person is occupying the trunk


4. Relating to the regulation of raising or keeping six or fewer chickens by a political subdivision


5. Urging Texans not to use the flag emoji of the Republic of Chile when referring to the Texas flag


6. Relating to the operation of a golf cart or utility vehicle on a public highway in certain counties


7. Relating to a franchise tax credit for entities that establish a grocery store or healthy corner store in a food desert


8. Relating to a sales and use tax exemption for certain feminine hygiene products for a limited period


9. Relating to a study by the Department of Agriculture of the transfer of water from the Mississippi River


10. Relating to restrictions on the use of certain sprays, Tasers, and stun guns against public school students


11. Relating to the prosecution of the offense of impersonating a public servant


12. Relating to the creation of the offense of bestiality


13. Relating to standing in a roadway


14. Relating to the solicitation of pen pals by certain inmates of the Texas Department of Criminal Justice


15. Relating to honesty in state taxation


2017 winner: "Relating to the taking of certain feral hogs and coyotes using a hot air balloon" (HB 3535 by Keough)


2015 winner: "Relating to the establishment of an unmanned aircraft program in the office of the governor" (HB 3429 by Lozano)


2013 winner: "Relating to liability for injuring a trespassing sheep or goat" (HB 1819 by Kacal)

29-30 - AGC-TBB Strategic Planning Meeting

3 -  AGC TBB Safety Committee Meeting - TEXO
17 - AGC TBB Board Meeting - Austin AGC Office