A statutory duty imposed upon counties by the legislature without funding is an unfunded mandate. Every unfunded mandate requires a property tax increase. The majority of the CJCAT legislative efforts are directed toward the prevention of additional unfunded mandates. This session was no exception.
In 2005, this column described the “Anatomy of an Unfunded Mandate.” That column described the passage of legislation to require counties to provide an attorney for indigent parents in CPS cases without state funding, now the most rapidly increasing area of the county budget. It noted that legislators have an unending supply of “good ideas” without funding. In the following sessions, this practice has become an epidemic. Several hundred unfunded mandate bills were included in the over 7,000 pieces of legislation during this session. As we have become more successful at identifying and defeating these bills, the legislative techniques have become more refined.
Including an unfunded mandate within the provisions of a major legislative initiative has become a favorite technique. Unfortunately, this was utilized this session to impose an unfunded requirement that counties implement an unneeded wellness check during every declared disaster. This proposal was introduced as a separate bill, H.B. 3711 by Rep. Bucy. With no Senate companion, this bill failed to obtain approval by the House of Representatives. This should have been the end of this poorly constructed piece of legislation. Amazingly, in the final week of the session, Sen. Kolkhorst and Rep. Klick allowed this provision to be attached to S.B. 968, a major revision of the emergency management statutes. Since S.B. 968 included other provisions supported by the governor, including the prohibition against vaccination requirements by private businesses, Gov. Abbott has approved S.B. 968. Under the supervision of TDEM, every county and city will be required to attempt to contact all “medically fragile individuals” within 24 hours of a declared disaster, including a personal visit to the home by a first responder if the person does not answer a telephone call. Of course, most such persons will have already arranged other shelter with family or friends. This will result in additional county cost for personnel, training, and equipment and will likely divert essential personnel from other duties during an emergency. This mandatory, restrictive program will replace the current voluntary program in operation in most counties.
This example illustrates the current trend in the legislature. There are now three apparent motives for pursuing unfunded mandate legislation: 1) to implement a “good idea” without responsibility for funding; 2) to bolster the sponsor’s list of legislative accomplishments; and 3) to micromanage state agencies and local governments. The legislature certainly has the power to dictate duties to local governments. The restrained, judicious use of this power is good public policy. The over-reaching, intrusive use of this power is inefficient and an insult to the sound judgment of local officials.
During this session, the urge to micro-manage blossomed in all directions from 1) prohibiting private businesses from determining the health rules on their private property; 2) instructing private businesses to play the National Anthem; 3) determining the curriculum and use of current events in the classroom; 4) limiting the discretion of county officials to respond to a local emergency; 5) imposing budgetary restraints on county governments; and more. Fortunately, the extreme proposal to limit the ability of county officials to communicate with legislators was rejected by the House leadership. However, the Senate leadership intends to continue this pursuit of a “gag rule” in the upcoming special session. Conservative government is limited government, not unbridled interference in local decisions. More details on the final results of this session will be discussed in future columns and at our educational conferences.
Jim Allison, General Counsel