Texas Legislature’s third special session yields lean results for Gov. Abbott, GOP right

AUSTIN — The year’s third special legislative session, which is ending Tuesday, has not yielded the results on school choice and border security that Gov. Greg Abbott sought. For nearly two years, Abbott has strongly advocated for publicly funded education savings accounts, or ESAs, to help families afford private-school tuition.

But in this year’s regular session, which ended Memorial Day, and again in a special session that began Oct. 9, the House has balked at passing a bill to launch a Texas ESA program.

And a House-Senate deadlock on a new state effort to deter illegal immigration has added to the frustration of Abbott and hard-line conservatives in the Texas GOP.

As governor, Abbott gets to call the overtime gatherings and tell lawmakers what topics they may consider. He has said there would be another fall special session on voucherlike programs, if the current one fails to deliver an ESA bill to his desk — as is all but assured.

On Tuesday, House Speaker Dade Phelan announced that Abbott would summon lawmakers back for a fourth special session to begin “early this evening. I anticipate the House will convene some time between 5 and 6 p.m.”

That means there will be no “cooling off” period for the Legislature’s feuding Republican leaders, Phelan and Lt. Gov. Dan Patrick.

As of last week, Abbott added about half a dozen education topics to the third special session’s “call,” expanding the agenda so it now includes at least 10 subjects. But he’s only getting a couple of bills out of it. The bills would increase the penalty for human smuggling and bar private employers from making workers take a COVID-19 shot.

“It is a disappointment” for Abbott, said Sherri Greenberg of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. “However, it’s not coming as a shock to anyone.”

Near the end of a 140-day regular session, it’s not uncommon to see a lieutenant governor and speaker gripe about the other chamber’s slowness in passing desired bills, she said.

“The parents will start bickering,” said Greenberg, a former Democratic state representative from Travis County. “But this time, by the end of the regular session, there was significant acrimony and that has only increased.”

The fallout from the Senate’s impeachment acquittal of Attorney General Ken Paxton in September and the clash between Patrick and Phelan over the past month has reached a perhaps unprecedented level of nastiness, she said.

“It’s a rather dysfunctional situation,” Greenberg said.

A special session that lasts 30 days costs taxpayers at least $1.2 million, a figure that assumes all 181 lawmakers accept their $221-a-day “per diem” payments for food and lodging. The Legislature has money in its budget for special sessions. In addition to per diems, there can be costs such as utilities, printing, security and special staffing.

Abbott has said that he planned to call two special sessions on school choice this fall. If a bill creating ESAs passed in neither, he vowed in a tele-town hall with Christian clergy in mid-September to remind voters of the House’s resistance in the March 5 Republican primary.

Also coloring Abbott’s political calculations about a fourth special session was Patrick’s recovery from a case of pneumonia he came down with last week.

Late Monday, Patrick announced that although he’s canceled all meetings and is staying home this week, he has spoken with Senate President Pro Tem Charles Schwertner, a Georgetown Republican who often presides in his absence. Senators are “fully prepared” to quickly pass bills when and if Abbott convenes the year’s fourth special session, Patrick said.

ESAs and teacher pay

For most of the current special session, Abbott and House leaders tussled over whether the Legislature first must pass ESAs before getting to raise teacher pay and increase public school funding generally, or whether Abbott should “expand the call” to include all of those topics. In his first proclamation on Oct. 5, the governor only included ESAs.

Last week, he relented, adding teacher compensation, school finance, changes in the academic accountability system and other topics to the call.

The House, which only late last week said it was now ready to consider all of the education topics, has been the graveyard for voucherlike programs.

Patrick has criticized the House’s tardiness in considering ESAs.

“SB 1 (school choice) and SB 2 (teacher pay raises) never even received a House committee hearing or a vote on the House floor,” Patrick said in a written statement on Monday.

Border and immigration

Until the year’s third special approached its end, the two chambers also appeared to largely agree on two other nudges Abbott gave them:

• Creating a new state crime — illegal entry from a foreign nation — and authorizing all licensed peace officers “to remove illegal immigrants from Texas.”
• Providing $1.5 billion more for construction of Abbott’s border wall, part of an effort to finish one started by former President Donald Trump.

To ram the illegal-entry bill through the House, Phelan and his fellow GOP House leaders incurred the wrath of Democratic members by insisting on language that the Democrats said would permit racial profiling by police.

As passed by the House, Jacksboro GOP Rep. David Spiller’s bill would permit any state or local law enforcement officer to detain migrants, take them to bridges on the Rio Grande that are “ports of entry” and order them to reenter Mexico.

Last Wednesday, a Senate panel rewrote Spiller’s bill to say that while local and state peace officers could arrest migrants for illegal entry, the migrants could not be released until their cases were disposed of in court.

To prevent further overcrowding in border county jails, Granbury Republican Sen. Brian Birdwell’s version of the bill would let the Texas Department of Public Safety take any migrant it detained for the new crime to detention centers the state has built under Abbott’s Operation Lone Star.

Under the Senate’s version, migrants convicted of illegal entry could not be released until after serving their sentence — and the state, not counties, would be required to transport them to the bridges and release them there to federal officials.

On Thursday, Patrick for the first time publicly condemned the House’s version as insufficient — in part because under it, some migrants apprehended would not undergo fingerprinting and background checks, but simply be taken to the ports of entry.

The House-passed bill “allows illegal border crossers to return whenever they want, time and time again,” Patrick said in a social media post. “Even if returned to the border, this policy would allow unidentified hardened criminals and terrorists to slip through the cracks and cross the border over and over again.”

Phelan fired back, saying on X, formerly Twitter, that the House “carefully designed” its version in consultation with Abbott’s office.

“The Senate’s pro-illegal immigration bill would house undocumented immigrants for up to 99 years, shouldering Texas taxpayers with the exorbitant costs of their long-term detention, including healthcare, housing, and meals,” said Phelan, R-Beaumont.

Patrick and Phelan also squabbled publicly over the House’s decision to pass the funding bill with just the money for Abbott’s border wall. The Senate added $40 million for DPS to pay for additional patrols in Colony Ridge, a housing development north of Houston where conservative media reports have alleged “thousands” of undocumented migrants are living.

Greenberg, the LBJ School’s assistant dean for state and local government engagement, said the two leaders have a “toxic” relationship. “This is really a war within the Republican Party. And that makes it very hard to get anything done,” she said.