The Good, the Bad, & the Ugly: The ’21 Texas Legislative Session

Published July 9, 2021

   

Our usual round-up of news from the Texas legislative session was delayed as we waited for the final list of signed and vetoed bills (the deadline for vetoes was June 21), and then delayed again in the crunch of conference preparations. Here, long-awaited, is the good, the bad, and the ugly from the 2021 Texas regular legislative session!

This session was extremely challenging, thanks to COVID, the Big Freeze, and broader politics. Many offices refused walk-in meetings, and some offices never agreed to in-person meetings at all. Although the session ended with only a small deficit, the original predictions of a large budget deficit cast a cloud on much of the session. And the level of divisiveness and personal rancor was worse than we have ever seen it. Although our work is and always has been bipartisan, the debates over hot-button issues took up most of the legislators’ focus, making tempers run short, exhausting everyone, and generally leaving little room for rational discussion of common-sense policy reforms.

Despite all of that, our bill passage rate stayed strong. We passed two of our six priority bills – which was more than twice the general bill passage rate! Combined with our successes in helping other bills pass, killing some bad bills, and laying the groundwork for future sessions, FARFA continues to significantly build the power of the local food movement and move us towards a more resilient, healthy agricultural and food system.


 

The Good

The Healthy Soils Bill, SB 1118, tops our list of good news from this session. This bill passed with just one dissenting vote in the entire Legislature. It directs the Texas State Soil & Water Conservation Board to create an “on the ground conservation program” for several purposes, the first of which is to promote healthy soils. The Board is to provide education, outreach, technical assistance, and grant funding to help farmers and ranchers sequester carbon in their soils and improve its biological, chemical, and physical characteristics. There is a lot of work to be done to fulfill the potential of this new program, and we are already in discussions with the Board about how we can help! Huge thanks go to Sen. Johnson (D-Dallas), Rep. Wilson (R-Marble Falls), and their staffs, who worked many hours on this bill.

The Farmers’ Market Bill, SB 617, also passed with overwhelming support and went into effect immediately upon the Governor’s signature. This bill caps the permit fees for both farmers and “food producers” selling at a farmers’ market. SB 617 defines food producer as anyone who grows, raises, manufacturers, processes or otherwise adds value to the food that they are selling (except for simply repacking). After opposing the bill, Harris County’s health department reacted to its passage with one last nasty maneuver – while halting issuance of the exorbitantly priced permits they’d imposed on some food producers, the department delayed in issuing those same vendors with new farmers’ market permits, preventing them from being able to sell the exact same food at the exact same farmers’ markets as they had been, simply because they were no longer paying $2,080/year to do so! The issue has been sorted out, and the vendors are back in business. But it’s a sad reflection of some local health departments’ hostility towards local food producers. Many thanks to Sen. Kolkhorst (R-Brenham) and Rep. Wilson (R-Marble Falls) for championing this bill, as well as to Rep. Eddie Rodriguez (D-Austin) for joint authoring.

Another major victory comes in the form of what we stopped. As filed, HB 1480 was an “Ag-Gag” bill that threatened whistleblowers with criminal fines and potentially huge civil fees. The deceptively worded provision – drafted by the Poultry Federation – was buried in the middle of a generally unobjectionable bill to address trespass and physical damage to agricultural operations. Thanks to FARFA’s opposition, the bill sponsor, Sen. Kolkhorst, took the Ag-Gag provision completely out. HB 1480 passed as a “clean” bill that addresses real problems for agricultural operations without threatening free-speech rights.

More good news stems from work that FARFA did before the session began. The Texas Animal Health Commission (TAHC) was up for Sunset review in 2020-2021, which means that the Sunset Commission reviewed how the agency was functioning, decided whether to continue it for another 12 years, and made recommendations for reforms. FARFA submitted comments pointing out that TAHC’s informal working groups develop most of the agency’s rule proposals behind closed doors; and despite repeated requests, FARFA and other non-Big-Ag groups had all been shut out. The Sunset bill for TAHC, SB 705, which passed this session, directs the agency to stop using informal working groups and replace them with formal advisory groups that operate under the normal requirements for appointments, conflicts of interests, etc. While not a silver bullet for the problems with TAHC, this new provision will help bring greater transparency and accountability to its actions.

The Sunset process also brought us an unexpected win with respect to the GoTexan program at the Texas Department of Agriculture. You may have seen the GoTexan logo on some labels in a grocery store (only rarely at a farmer’s market) … but did you know that it simply means that the manufacturer somehow “added value” within Texas? That GoTexan beef jerky could be beef that was imported from a foreign country, already cut up and spiced, and simply dried and packaged in Texas. In addition, the fees to participate are somewhat high (starting at $100) – and the more the business pays, the better exposure they get. In other words, it’s a “pay to play” system that favors big businesses that import cheap food products and do minor additional processing within Texas. Thanks to an amendment offered to SB 703 by Rep. Goldman (R-Ft. Worth), the Sunset Commission will do a review of the GoTexan program over the next biennium.

And moving on to water, which is vital to food production. One bill counts as a win in this area this session: the Texas Water Trust Bill, HB 2225, which sets up a framework for dedicating surface water rights to be conserved. It allows the Texas Parks & Wildlife Service to “encourage and facilitate the dedication of water rights” in order to maintain or improve instream flows, water quality, fish and wildlife habitat, and bay and estuary flows. It is critical that we recognize water as a long-term necessity, rather than a short-term commodity, and this bill helps protect this irreplaceable resource. Many thanks to Sen. Zaffirini (D-Laredo) and Rep. Tracy King (D-Laredo), as well as the Texas Sierra Club who spearheaded a wide coalition effort to pass this bill.

We also got involved in the issue of rural broadband access this session because reliable internet access is a serious barrier for many farmers and small food businesses. Rep. Doc Anderson (R-Waco) introduced HB 3853, which would allow electric utilities to partner with internet service providers to lease their excess fiber capacity, thus increasing the flow of data without requiring any new infrastructure to be built. This excellent bill had a long list of bipartisan coauthors and passed unanimously. Special thanks go to the authors, Rep. Anderson and Sen. Perry (R-Lubbock).

Last on the list of significant victories is a trio of bills on eminent domain: SB 721, SB 725, and SB 726. These three bills each made good reforms to the extremely abusive eminent domain process in Texas, including requiring the condemning entity to share all appraisal reports, imposing any additional taxes that are due to the condemnation of the property on the condemning landowner rather than the farmer, and strengthening the requirements for the condemnor to show “actual progress” on the project (or else have to sell the property back to the original landowner). Thank you to Sen. Schwertner (R-Georgetown) and Rep. Leman (R-Brenham) for championing these bills, as well as to Rita Beving and the Texas Landowners for Eminent Domain Reform for their tireless work. There are still many problems with the eminent domain laws in Texas, but each of these reforms helps!


 

The Little Things

FARFA closely monitored over a hundred bills this session, looking for opportunities to help small-scale producers, opposing bad bills, and keeping an eye on innocuous bills that could become vehicles for bad bills. Most bills, good and bad, simply died. But there were a handful of bills that made positive small reforms:

HB 1259 reforms the rural veterinarian incentive program to make it more practical and workable. This program creates incentives for veterinarians to set up their practice in underserved rural communities by providing financial support towards their student loans. The current shortage of rural veterinarians poses an increasing challenge for small-scale producers. Thanks go to Rep. Darby and Sen. Seliger.

HB 2213 allows meat from exotic animals that were processed at a custom slaughterhouse to be donated to food banks. This not only provides another source of food for communities, but also helps build the recognition of custom slaughterhouses as safe, viable options for processing. Thanks go to Rep. Frullo and Sen. Kolkhorst.

HB 1276 allows restaurants to continue to sell packaged grocery items, as they started to do during the shutdowns. Thank you to Rep. Tan Parker and Sen. Springer.

HB 365 expands the current protections for property owners against liability claims arising from farm animal activities, by expanding the definition of such activities to include routine/customary activities on a farm, handling and managing farm animals, and ranching activities. HB 365 also adds bees to the covered types of animals.  Thank you to Rep. Murr and Sen. Springer.


 

The Bad

Most of the bad news comes in the form of good bills that died.

The Home Food Security Bill, HB 1686, was one of the heartbreaks of this session. After the Food Policy Council of San Antonio succeeded in getting sponsors for this bill, FARFA worked long and hard to move it forward. We spent untold hours negotiating with opponents, addressing their objections in ways that did not undermine the core purpose of the bill: to empower people to raise their own food. That hard work paid off in the form of an impressive bipartisan list of co-authors, drawn from every point on the political spectrum, and a vote of 143-1 in the House. But when we got to the Senate Local Government Committee, Sen. Nichols (R-Jacksonville) and Chairman Bettencourt (R-Houston) expressed opposition – and the Chairman would not allow the bill to be brought up for a vote, killing it. Join us for a live discussion about what happened and where we go from here, on Wednesday, June 21, at 6 pm. Register here for this free activism event. 

Our other priority bills died much earlier deaths.

The meat processing bill (SB 867) would have provided greater flexibility for small livestock farmers and consumers in Texas, by allowing them to set up “herd shares” and then have their animals processed at custom slaughterhouses. Custom slaughterhouses are subject to strict regulation and inspections, but don’t have an inspector on-site at all times – and are generally more widely available and accessible. The approximately 100 custom slaughterhouses operating in Texas serve hunters and homesteaders, and have an excellent track record of safety – state health department records reflect just two complaints, both unconfirmed, in the last 20 years!  Thank you to Sen. Springer (R-Muenster) for filing this bill despite the opposition from the Texas & Southwestern Cattle Raisers Association. Although the opponents of the bill had no data or facts to support their fear-mongering about custom slaughterhouses, Chairman Perry refused to even give the bill a committee hearing.

The bill to allow the sale of ungraded eggs to restaurants and retailers (SB 336 /HB 2028) also died, for a second time, due to Big Agribusiness opposition. As with the meat processing opposition, there is no data to support their claims. Farmers sell ungraded eggs at every farmers’ market in the state, and the state health department has had zero reports of foodborne illnesses linked to those eggs in the last 20 years! But the agribusiness groups sidestep that reality by preventing open hearings and votes. Thank you to Sen. Johnson (D-Dallas) and Rep. Lambert (R-Abilene) for continuing to work to pass this simple common-sense reform. And we are already working on alternative strategies for next session, to bypass the Agribusiness roadblocks!

The bill to rein in TDA’s overreach on small farms (HB 2397/ SB 1376) never got a committee hearing either. Suffice it to say that there were some inaccurate claims made behind closed doors that, had the bills been given fair and open hearings, we could have easily rebutted. Since that didn’t happen, we will refocus our efforts on our lawsuit against the agency. Thank you to Sen. Hughes (R-Mineola) and Rep. Rodriguez (D-Austin), and their staffs, who worked long and hard to fight to give this bill a chance.

And then there were some disappointing losses on other bills we supported:

Several good water bills passed the House, but then died because Chairman Perry wouldn’t move them through his committee: HB 2716 (which would have allowed the Texas Parks & Wildlife Department to intervene in permits that threaten to pollute state parks); HB 2851 (requiring groundwater districts to consider “modeled sustained groundwater pumping” – the amount of pumping that can be sustained indefinitely – when setting desired future conditions); HB 2095 (requiring the UT Bureau of Economic Geology to collect data on surface water, groundwater, and their interactions, so that all of the relevant data is in one place and accessible to the public and policymakers); and HB 3619 (directing groundwater conservation districts to consider the impacts on “exempt” wells – wells that provide for people’s household or livestock use – when considering an application for a new or amended permit). 

SB 1145, to prevent plant-based foods and lab-grown cell cultures from being labeled “meat” made good progress, was passed by the Senate, and had the votes to pass on the floor of the House – but died on a point of order from Rep. Biedermann (R-Fredericksburg).

And despite strong bipartisan support in the Legislature, Governor Abbott vetoed HB 2667, which would have protected broadband access in rural Texas. The bill proposed that those receiving assistance through the Texas Universal Service Fund — which helps Texans receive basic telecommunications services — be charged a universal fee for services. Recent decisions from the Public Utility Commission of Texas, which funds the TUSF, has placed customers in rural areas at risk of losing telephone services or paying high costs for services, and this bill would have restored the original intent of the TUSF.

Our final “bad news” is the passage of a bill that sounds good on the surface, but not so much once you dig into it. HB 3924 allows Texas Farm Bureau to sell “health plans” that don’t meet the minimum requirements for health insurance. As noted in the committee testimony, farmers are overwhelmingly older, with pre-existing conditions that would not be covered by such plans. (Check out the testimony in the Senate Committee hearing at Senate Committee on Business & Commerce – Apr 6th, 2021 (granicus.com), starting at 14 minutes 30 seconds). This will allow Farm Bureau to offer benefits to incentivize young, urban residents to become members, increasing its funding base and political power without actually providing a benefit to farmers. 


 

And the Ugly

We dedicate ourselves to staying focused on FARFA’s mission, working on food, agriculture, and closely related topics such as water and eminent domain. But we can’t ignore the Governor’s veto of funding for the Texas Legislature. The legislators’ own salaries are guaranteed by the Texas Constitution, but the veto means no funding for legislators’ staff or the agencies such as the Legislative Budget Board (which determines the financial impact of the bills) and legislative counsel (the lawyers who write the bills – without them, lobbyists will do all the writing). The effect is that the legislative branch of our government cannot function as of September 1 unless they pass a new funding bill, and the Governor doesn’t veto it.

The Governor vetoed legislative funding in retaliation for the failure to pass his legislative priorities. Whatever your views on those priorities, this is an attack on the basic separation of powers on which our government is based. No branch – the legislature, the executive, or the judiciary – should be able to render another branch powerless. In essence, the Governor has said that the Legislature must pass his priorities, or he will prevent this co-equal branch of government from operating.


 

What Comes Next

There will be at least two, if not more, special sessions before the next election. The special sessions are limited to what the Governor includes in his “call,” and the call for the session that started this week is a list on hot-button issues such as elections and local government lobbying.

The fall session will be on redistricting, promising that it, too, will be ugly. It is expected, however, to also include how to spend $16 billion in federal stimulus funds. We have some ideas about that … grants for establishing and expanding small-scale slaughterhouses and funding for the soil health project are the first two that spring to mind! We will be spending the next several months gathering support for these and other initiatives to help rebuild a resilient and sustainable agricultural and food system in our state.

The regular session may be over, but the work does not end!