September 24, 2021, Number 37

Download the full .pdf version here: TML Legislative Update Number 37

governor announces new items to call

The legislature gaveled in for its third special session on Monday. On Wednesday, the governor added two items to the special session call. Those items are:

Legislation providing additional property-tax relief for Texans.
Legislation proposing a constitutional amendment to further protect the safety of the community, law enforcement, and victims, from accused criminals who may be released on bail, including by giving magistrates the discretion to deny bail under some circumstances to people accused of certain violent, sexual, or trafficking offenses.

The other previously announced items that are included on the call can be found here.

resolutions for the 2021 annual conference and your city delegate

At the 2021 TML Annual Conference in Houston on October 6-8, resolutions submitted to the membership will be considered at the TML Business meeting on October 7 at 3:30 p.m.

The full resolutions packet is available here.

Each city is entitled to one voting delegate at the business meeting. The delegate isn’t required to have any special expertise, and an elected official is encouraged but not required. Cities are encouraged to sign up their delegate electronically prior to the meeting. Cities are also able to sign up in person at a table outside of the meeting room. All city officials are welcome to attend the meeting, whether or not they are a voting delegate.

governor's office proposes law enforcement funding rules

The Public Safety Office (PSO) of the Office of the Governor is proposing rules related to the reduction of funding to certain city police departments. Specifically, the proposed rules: (1) provide guidance to cities that seek an exception for a reduction to the funding of a city’s police department; (2) establish criteria used to approve such proposed reductions; and (3) formalize the practices the PSO follows when reviewing applicable budgets or complaints. This rulemaking implements H.B. 1900, which was adopted during the 87th Legislative session and applies to cities with a population of more than 250,000. A summary of the bill can be found here.

The deadline to submit comments is October 17, 2021. Written comments may be submitted by mail to Stephanie Greger, Assistant General Counsel, Office of the Governor, P.O. Box 12428, Austin, Texas 78711, or by email to stephanie.greger@gov.texas.gov with the subject line "Public Safety Office Rule Review."

bills on the move

3S.B. 5 (Lucio), relating to unlawful restraint on dog. Passed the Senate.

city-related bills Filed

property tax

3H.B. 72 (Vasut) – Appraisal Cap: would establish a 3.5 percent appraisal cap on all real property. (See 3H.J.R. 6 below.)

3H.B. 81 (Middleton) – Homestead Exemption: would increase the maximum percentage of a local option homestead exemption from 20 percent of the appraised value of an individual’s residence homestead to 100 percent of an individual’s residence homestead. (See 3H.J.R. 7, below.)

3H.J.R. 6 (Vasut) – Appraisal Cap: would amend the Texas Constitution to authorize the legislature to limit increases in the appraised value of real property for property tax purposes to 3.5 percent per year. (See 3H.B. 72, above.)

3H.J.R. 7 (Middleton) – Property Tax Exemption: would amend the Texas Constitution to authorize the governing body of a political subdivision to exempt up to 100 percent of the market value of a residence homestead. (See 3H.B. 81, above.)

public safety

3H.B. 85 (White) – Law Enforcement Grants: would require the governor’s criminal justice division to establish and administer a grant program to provide financial assistance to law enforcement agencies for purposes of equipping all motor vehicles used by officers of the agency in discharging the officers’ official duties with bullet-resistant windshields.

community and economic development

3H.B. 73 (Murphy)– Affordable Housing: would establish a partial tax exemption for a leasehold or other possessory interest in a housing facility granted to a housing facility user only if the housing facility user does not: (1) refuse to rent a residential unit in the housing facility to an individual or family because the individual or family participates in the housing choice voucher program; or (2) use a financial or minimum income standard that requires an individual or family participating in the housing choice voucher program to have a monthly income of more than 250 percent of the individual’s or family’s share of the total monthly rent payable for a residential unit.

other finance and administration

3H.B. 70 (Shaheen) – Unlawful Restraint of Dog: would, among other things: (1) prohibit and create an offense for the unlawful restraint of a dog; and (2) provide that the prohibition in (1) does not preempt a local regulation relating to the restraint of a dog or affect the authority of a political subdivision to adopt or enforce an ordinance or requirement relating to the restraint of a dog if the regulation, ordinance, or requirement: (a) is compatible with and equal to, or more stringent than, the prohibition; or (b) relates to an issue not specifically addressed by the prohibition.

3H.B. 77 (Middleton) – Community Censorship: would: (1) prohibit a political subdivision from spending public funds to: (a) hire an individual required to register as a lobbyist for the purpose of lobbying a member of the Texas legislature; or (b) pay a nonprofit state association or organization that: (i) primarily represents political subdivisions; and (ii) hires or contracts with an individual required to register as a lobbyist; (2) provide that if a political subdivision engages in activity prohibited by (1), above, a taxpayer or resident of the political subdivision that engages in the prohibited activity is entitled to injunctive relief to prevent any further prohibited activity or any further payments of public funds; and (3) provide that a taxpayer or resident who prevails in an action under (2), above, is entitled to recover reasonable attorney’s fees and costs from the political subdivision.

3H.B. 78 (Middleton) – Cooperation with Federal Agency: would, among other things, prohibit a political subdivision from cooperating with a federal government agency in implementing an agency rule that a report published by the Texas attorney general indicates has been found by a court to violate the rights guaranteed to the citizens of the United States by the United States Constitution.

3H.B. 86 (Tinderholt) – COVID-19 Passports: would provide that a governmental entity, including a city, that issues to a third party a vaccine passport, vaccine pass, or other standardized documentation to certify an individual’s COVID-19 vaccination status or otherwise publishes or shares any individual’s COVID-19 immunization record or similar health information, other than for health care purposes, shall be liable for a civil penalty in an amount not to exceed $5,000 for each violation.

3H.B. 93 (White) – COVID-19 Vaccination: would, among other things, prohibit a governmental entity, including a city, from implementing, ordering, or otherwise imposing a mandate requiring an individual to be vaccinated against COVID-19.

3H.B. 94 (White) – COVID-19 Vaccination: would require the Texas Department of State Health Services to establish a COVID-19 health information clearinghouse to serve as a central repository of COVID-19 health information.

3H.B. 95 (Oliverson) – Land Development Applications: would provide that, unless specifically authorized by state law, a municipal planning commission or the governing body of the municipality may not: (1) require a person to fulfill any prerequisites or conditions or obtain any approvals before the person files a copy of a plan or plat with the municipal planning commission or governing body; (2) delay the starting date for calculating any applicable timeframe to approve or disapprove a plan or plat by not considering the date the plan or plat was filed as the starting date; or (3) refuse to accept, acknowledge, process, or act on a filed copy of the plan or plat.

3S.B. 5 (Lucio) – Unlawful Restraint of Dog: would, among other things: (1) prohibit and create an offense for the unlawful restraint of a dog; and (2) provide that the prohibition in (1) does not preempt a local regulation relating to the restraint of a dog or affect the authority of a political subdivision to adopt or enforce an ordinance or requirement relating to the restraint of a dog if the regulation, ordinance, or requirement: (a) is compatible with and equal to, or more stringent than, the prohibition; or (b) relates to an issue not specifically addressed by the prohibition.

3S.B. 31 (Johnson) – COVID-19 Vaccination: would authorize a venue or business that is permitted or licensed to sell alcoholic beverages at retail for on-premises consumption to require an individual to provide documentation certifying the individual’s COVID-19 vaccination status or post-transmission recovery on entry to or to gain access to the venue or business.

3S.B. 33 (Johnson) – COVID-19 Vaccination: would prohibit the governor from issuing an executive order, proclamation, or regulation under the Texas Disaster Act that prohibits an institution of higher education, school district, open-enrollment charter school, city, county, or health authority from adopting a policy or issuing an order requiring the wearing of face masks or coverings during a declared state of disaster.

3S.B. 36 (Hall) – COVID-19 Vaccination: would: (1) prohibit a governmental entity, including a city, or a private entity that receives money from the state from using state money or any other state resource to enforce a federal statute, order, rule, or regulation mandating vaccines or other invasive health care treatments; (2) provide that an employer is not required to comply with a federal statute, order, rule, or regulation mandating employer-required COVID-19 vaccinations if that vaccination requirement does not exist under state law; and (3) prohibit a governmental entity, including a city, or a person employed by or otherwise under the direction of control of the entity from enforcing or attempting to enforce any federal statute, order, rule, or regulation mandating employer-required COVID-19 vaccinations if that vaccination requirement does not exist under state law.

personnel

3S.B. 30 (Johnson) – COVID-19 Vaccination: would: (1) authorize a local governmental entity or state governmental entity, as a condition of employment, to require an entity employee to provide to the entity in the form and manner prescribed by the entity documentation of the employee’s COVID-19 vaccination, including any recommended booster dose of the vaccine; and (2) provide that an executive order, proclamation, or regulation issued under the Texas Disaster Act may not suspend, limit, or alter the authority in (1), above.

3S.B.35 (Paxton) – COVID-19 Vaccination: would, among other things: (1) require an employer, labor organization, or employment agency to allow an individual to claim an exemption from a required COVID-19 vaccination based on a medical condition or reasons of conscience, including a religious belief; (2) provide that an employer commits an unlawful employment practice if the employer fails or refuses to hire, discharges, or otherwise discriminates against an individual with respect to the compensation or the terms, conditions, or privileges of employment because the individual claims an exemption under (1), above; and (3) require an employee claiming an exemption for a required COVID-19 vaccination to complete and provide to the employee’s employer an affidavit on a form developed by the Texas Workforce Commission stating the reason for the exemption. (Companion bill is 3H.B. 37 by Noble.

covid-19 update (no. 203)

All pandemic-related updates, including information about the American Rescue Plan’s city-related provisions, will be in the Legislative Update Newsletter from now on.

Presidential Executive Action: Vaccine Requirements

On September 9, 2021, President Biden issued a six-prong COVID-19 action plan called the “Path Out of the Pandemic.” One of the prongs is a directive to the federal Occupational Safety and Health Administration (“OSHA”) to draft a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated for COVID-19 or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA has not yet produced a draft of the rule to implement this requirement.

According to the White House, this requirement will impact over 80 million workers in private sector businesses with 100+ employees. Because OSHA regulations do not apply to political subdivisions in Texas, the OSHA rule will likely not create a vaccine mandate for Texas cities. TML continues to watch for further developments.

Presidential Executive Action: Executive Order Related to Federal Contractors

In conjunction with the Path Out of the Pandemic, President Biden issued a pair of executive orders, including Executive Order 14042 (“Order”). This Order requires all “contracts and contract-like instruments” (referred to simply as “contracts” in this Update) with the federal government to include a clause whereby the contractor or sub-contractor agrees to comply with all COVID-19 workplace guidance published by the Safer Federal Workforce Task Force (“Task Force Guidance”). The Task Force Guidance applies to any workplace where an individual is working on or in connection with a federal government contract.

The Task Force has a number of COVID-19-related FAQs, but the Task Force Guidance and protocols required by this Order has not been released.

This Order is forward-looking and applies to any new contract, contract extension or renewal, new solicitation, or the exercise of an option on an existing contract, if the contract is for the following:

Services, construction, or a leasehold interest in real property;
Services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
Concessions; or
Is in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public;

The Order does not apply to:

Grants;
Contracts, with Indian Tribes;
Contracts or subcontracts whose value is equal to or less than the “simplified acquisition threshold,” as that term is defined in section 2.101 of the Federal Acquisition Regulation ($250,000.00, with some exceptions);
Employees who perform work outside the United States or its outlying areas; or
Subcontracts solely for the provision of products.

This Order is unlikely to affect most Texas cities in any way. If it applies at all, it will apply only to contracts entered in the future, and those contracts would contain specific language, again putting the city on notice of the application of the Task Force Guidance. If your city is contemplating entering a contract with the federal government that might fall in one of the applicable categories above, consult with your local attorney for COVID-19 workplace guidance.

Coronavirus Capital Projects Fund:

The U.S. Department of the Treasury (“Treasury”) released guidance for the Coronavirus Capital Projects Fund (“CPF”) program established by the American Rescue Plan Act of 2021 (“ARPA”). This $10 billion program allocates funds for eligible governments to carry out critical capital projects that directly enable work, education, and health monitoring, including remote options, in response to the COVID-19 public health emergency. The Capital Projects Fund Guidance, available here, describes how governments may access and use these funds.

A key priority of this program is investments in high-quality, affordable broadband infrastructure and other digital connectivity technologies focused on closing the digital divide. This pandemic has shown us that broadband infrastructure is indispensable for access to critical services and participation in daily life, including remote work, telehealth, and distance learning. The guidance provides information about eligible areas for investment and technical standards, encourages projects in economically distressed areas, supports community empowerment, and encourages strong labor practices.

Texas has been allocated more than $500 million from the CPF. Unlike the other ARPA funding, which included direct payments to cities, the CPF is a completely state-level program. The Texas Legislature is currently in its third special session of the year, and allocation of Coronavirus Relief Funds is on the governor’s call. If you have questions about what your city could do to engage with legislators on this issue, please email legislative@tml.org.

Reminder: TML Coronavirus materials are archived by date here and by subject here.

disclaimer

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.