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Key issues to watch in the 2019 Texas legislative session

The 86th Texas Legislature has been in session for just over a week, yet some public policy priorities are already beginning to emerge. While public school funding will likely be the top legislative concern this session, Texas lawmakers are also proposing state-level solutions to national issues like immigration, drug reform and rising health care costs. Water management has also emerged as a key issue, as legislators consider how best to use and conserve the state’s water supply.

Four Baker Institute fellows with expertise in these policy areas have examined the bills filed so far. Read on for their analysis of which bills to watch, what other issues could draw attention this legislative session and the potential implications of proposed legislation on public policy in Texas. 

 

Immigration Enforcement 

Tony Payan, Ph.D., director, Baker Institute Mexico Center

Texas legislators could consider as many as 12 immigration-related bills this session, including 10 introduced in the House and two in the Senate thus far. Some bills seek further restrictions on unauthorized migration, essentially making living in Texas more problematic for undocumented residents and prompting them to self-deport. For example, House Bill 378 reinforces the need to verify residents’ citizenship status during voter registration — largely based on the dubious premise that unauthorized immigrants are voting — while Senate Bill 197 requires state contractors to verify employment eligibility. Additionally, HB 413 calls for higher education institutions to confirm students’ residency status, and HB 50 would regulate the use of migrant labor housing facilities.

Other bills seek to limit or redress previously approved restrictions on undocumented immigrants, an apparent acknowledgement of the reality of undocumented migrants already in the U.S. For instance, HB 35 seeks the creation of conditional driver’s permits, including for individuals who work in Texas and need to drive but may not have legal residence. Legislators have also drafted bills intended to introduce greater accountability on immigration enforcement efforts. Two bills — HB 67 and HB 265 — demand the collection of data and information on migrants and their immigration status, including on unaccompanied minors and during traffic stops. In addition, HB 264 would require the Department of Public Safety to submit a report to the legislature annually on certain border crimes and other criminal activity related to border security.

None of these bills is expected to be as controversial or impactful as SB 4 — a “show-your-papers” law passed in 2017 that allows law enforcement officers to question the legal status of any individual they detain or arrest — and most may not even be approved, particularly as the 2019 legislative session appears to be focusing on another controversial topic in Texas politics: public school funding. If any of the bills related to immigration pass, the impact on undocumented migrants in Texas will likely be minimal, given the already difficult environment they face due to existing federal and state laws targeting undocumented migrants.

 

Drug Reform

Katharine Neill Harris, Ph.D., Alfred C. Glassell, III, Fellow in Drug Policy

A number of marijuana-related bills have been introduced in the 86th Texas legislative session. One that has garnered significant attention is HB 63, sponsored by Rep. Joe Moody (D-El Paso), to reduce the penalty for possession of an ounce or less of marijuana from a Class B misdemeanor to a civil offense.  Under the proposed legislation, individuals could still be punished with a fine, but would not receive a criminal charge or record. Moody introduced similar legislation in 2015 and 2017 that did not reach the House floor for a vote. However, the bill’s supporters are optimistic about their prospects this session because Gov. Greg Abbott in October signaled for the first time that he is open to reducing penalties for marijuana possession.

On the medical marijuana front, legislation has been introduced that would expand the state’s Compassionate Use Program (CUP), which was created in 2015. The CUP allows Texans with intractable epilepsy to access low-THC cannabis oil with a doctor’s prescription. The Texas program is currently one of the most restrictive in the nation, and has come under criticism for its limited scope. SB 90, introduced by Sen. Jose Menendez (D-San Antonio), would expand the program by increasing the number of medical conditions that qualify for the program to include cancer, Parkinson’s, glaucoma and multiple sclerosis, among others. While several polls have found that a majority of Texans support medical access to marijuana, the state’s Republican leadership has not yet clearly signaled that it would support an expansion of the current law.

  

Groundwater Use and Water Conservation

Gabriel Collins, J.D., Baker Botts Fellow in Energy & Environmental Regulatory Affairs

In the House, Rep. Lyle Larson (R-San Antonio) has introduced five groundwater-focused bills of interest. The three bills likely to have the highest and broadest impact on Texas water include HB 726, which pertains to the export of groundwater from groundwater conservation districts, and HB 720 and 721, which seek to regulate the injection of water into aquifers to be stored for later use. Some of the core provisions of HB 726 — such as not requiring separate permits for the export of groundwater — should be straightforward to implement. But a provision that would prohibit groundwater conservation districts from denying permits to developers that seek to export water will be tougher to enforce. That change, should the bill pass, is likely to lead to litigation if district officials opposed to an export project deny a permit, but do so on grounds not specifically linked to the intended end use of the water (for instance, by citing potential adverse impacts on local hydrology or other well owners in the district). Thus, the conflicts the drafters seek to quell are still likely to arise.

HB 721 would require the Texas Water Development Board to assess aquifers statewide to determine their potential for hosting aquifer storage and recovery (ASR) projects. Larson has been a vocal proponent of capturing floodwater from extreme rain events such as Hurricane Harvey and storing it underground in evaporation-proof aquifers for use in future dry periods. HB 720 would allow an aquifer storage owner to retrieve and use stored water without seeking additional authorization to do so as well as create an “evaporation credit” under some circumstances that could incentivize surface water rights holders to store their water in an ASR. But while surface water holders own the right to use the water, would the “wet” water itself remain the property of the state of Texas after being injected? Would a party that injected its allotted volume of surface water into an ASR project therefore come to own those water molecules as a private property right? The bill also does not address the potential water quality implications of injecting relatively “dirty” surface water — e.g., floodwaters that may bear high levels of contaminants — into an aquifer, co-mingling it with presumably cleaner groundwater. Both of these issues could also lead to legal challenges should the bill become law.

 

Health Care Reform

Vivian Ho, Ph.D., director, Baker Institute Center for Health and Biosciences

Texas legislators could again take up legislation to increase transparency at freestanding emergency departments (FrEDs), as many patients are using these facilities for care they could receive from urgent care centers at a much lower cost. During the 2017 legislative session, Texas lawmakers passed legislation mandating that FrEDs inform patients whether they are in- or out-of-network on their insurance. However, a Texas AARP review of websites for 220 FrEDs found that 30 percent of the sites do not comply with these state disclosure laws and that 77 percent stated that they accept health insurance when they were actually out-of-network options for any major health plan — meaning that patients with a high out-of-network deductible may be liable for a significant portion of the bill, if not the entire cost of service. Texas legislators should pass new legislation requiring freestanding emergency departments to post the prices they charge for common ailments. Other policy options the legislature can explore include limiting the amount that FrEDs can bill patients for out-of-network care and forbidding FrEDs from balance billing patients for out-of-network care to recoup the difference between what the insurance paid and what the facility charged for services provided.

Market consolidation in health care could also become an issue this legislative session. Several research studies conclude that consolidation of health care providers or insurers leads to higher prices and therefore higher insurance premiums for consumers. Legislators may wish to commission a study of the potential cost and market effects of the proposed merger between Baylor Scott & White Health and the Memorial Hermann Health System, or to establish a state health policy commission that would help policymakers track the frequency, type and nature of changes in the Texas health care market.

 

This information appeared in the Jan. 23, 2019, edition of the "Baker Institute Update," the institute's electronic newsletter. To subscribe, visit: https://www.bakerinstitute.org/baker-institute-update/.