Texans to vote on ten constitutional amendments next week

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October 31, 2011

By Jimmy Ardis

Texas Constitution
Seal of Texas.svg.png
3 (1-43)3 (44-49)3 (50-67)

Texas: Every other year Texas voters are tasked with the responsibility of approving or rejecting amendments to the Texas Constitution. That time is here again and on November 8th Texans will head to the ballot box to vote on ten proposed amendments on subjects ranging from veterans tax exemptions and education financing, to water conversation incentives and the governor's pardon powers. This article will provide a brief overview of each amendment on the ballot and provide resources for further exploration.

Amending the Texas Constitution

As laid out in Article 17 of the Texas Constitution, in order for a proposed constitutional amendment to be placed on the ballot, the Texas State Legislature must propose the amendment in a joint resolution of both the Texas State Senate and the Texas House of Representatives. The joint resolution can originate in either the House or the Senate. The resolution must be adopted by a vote of at least two-thirds of the membership of each house of the legislature. That amounts to a minimum of 100 votes in the House of Representatives and 21 votes in the Senate. If the proposed amendment passes the legislature, an election is held in which Texas voters choose to adopt or reject the amendment.

Proposed, approved, and defeated amendments to the Texas Constitution 1971-2009

The Texas Constitution has been amended 268 times since 1971. During that time the Texas State Legislature placed 326 joint resolutions proposing constitutional amendments on the ballot and voters rejected just 58 of them - an 82% success rate over the past forty years. The Constitution was last amended in 2009 during the 81st Legislative Session. The Texas State Legislature passed eleven joint resolutions proposing constitutional amendments and voters approved them all. The 100% approval in 2009 is indicative of an election trend that has marked Texas constitutional elections since 2001. Texas voters have approved every one of the 79 amendments that has made it to the ballot since the turn of the century.

Proposition 1, Survivor of Veterans Homestead Tax Exemption

Proposition 1 would allow the legislature to grant surviving spouses of totally disabled veterans an valorem tax exemption on their principal residences. This amendment transfers the existing homestead property tax exemption of totally disabled veterans to their surviving spouse upon the disabled veteran's death.

Supporters say this amendment would give peace of mind to Texas' disabled veterans by removing an unneeded financial hardship on the surviving family triggered upon their death. Under current law surviving spouses are handed an unexpected property tax bill upon losing their husband or wife.[1] Supporters also point out that such an important recognition of the sacrifice of veterans would cost less than $10 million a year statewide.[2]

Opponents, while noting the noble intent of the proposition, say that Texas should not be granting revenue reducing tax exemptions at a time when the state is experiencing serious budget shortfalls and is unable to fully fund critical services. The argument is that the state should not, on principle, be handing out tax exemptions to certain groups. The benefits realized by the receiving group must be offset and paid for by everyone else. While no one exemption by itself represents an enormous financial burden, in aggregate the individual tax exemptions add up to a serious cost to the state at a time when budgets are already at starvation levels. Instead of passing new exemptions, we should be reversing the trend, opponents say.

Beyond the general objection to tax exemptions, a major point of contention with Proposition 1 is that the exemption continues if the surviving spouse remarries as long as he/she was not remarried at the time of initially qualifying for the exemption. Opponents say the exemption should end when the surviving spouse remarries, regardless of previous qualifications.[1]

For further information and resources on Proposition 1 see: Texas Survivor of Veterans Homestead Tax Amendment, Proposition 1 (2011)

Proposition 2, Water Development Bonds

Proposition 2 would allow the Texas Water Development Board to issue additional bonds as long as no more than $6 billion are outstanding at any one time. The amendment has an "evergreen provision" that allows the Board to continually issue bonds without seeking further voter approval as long as the $6 billion cap isn't surpassed.

Proposition 2 proposes to increase the total amount of bonds that can be issued by the Texas Water Development Board to $6 billion. Supporters say the additional funding authority is required if the state's water planning and financing agency is to meet the steadily rising demand placed on Texas by population growth and climate. The City of San Angelo's council passed a resolution in support of the proposition on September 20th, citing the need for cost effective programs to ensure adequate supply in the face of growing demand. Those in opposition say the amendment would authorize state debt on a continuing basis and that the power to review the need for such funding should be retained by the voters on a periodic basis. They also argue that while Proposition 2 limits the amount of bonds outstanding at any one time to $6 billion, the cumulative total over time could surpass that mark.[1]

For further information and resources on Proposition 2 see: Texas Water Development Bonds Amendment, Proposition 2 (2011)

Proposition 3, Student Loan Financing

Hinson-Hazlewood bond increases adopted by Texas voters since 1965

With continually rising college tuitions and a struggling economy mired in unemployment, student loans have become a hot topic. Student loan debt now hovers around an estimated $1 trillion nationally, outpacing credit card debt for the first time in US history.[3] It's not a surprise that in this economy student loan defaults are up. Data released by the US Department of Education last month show the national default rate on federal student loans climbed to 8.8 percent in 2010, up from 7 percent in 2008. Texas was amongst the top 10 states with the highest default rates, at 10.13 percent.[4] Nonetheless, student loans remain one of the only options left for many families struggling to pay high tuition rates, especially in an era of decreased availability of grants and aid.

Proposition 3 would authorize the issuance of general obligation bonds to finance the longstanding Hinson-Hazelwood College Student Loan Program. The program provides low-interest loans to students who aren't able to finance the full cost of college through other sources. Since the Texas Constitution prohibits the state from taking on debt without a constitutional amendment, voters must approve additional bond authorization if the program is to continue offering loans.[5]

Texas voters have approved each of the previous seven amendments proposing Hinson-Hazelwood bond increases. But Proposition 3 proposes something slightly different than past amendments. Traditionally lawmakers have asked voters to approve fixed amounts of bonding authority. Once those bonds are issued new approval must be obtained at the ballot box before issuing more. This amendment proposes an "evergreen authority" to allow the program to continue issuing bonds in perpetuity as long as the amount of loans outstanding at any one time does not exceed the amount previously approved by voters - $1.86 billion.[5]

Supporters say that ensuring the student loan program continues is critical in light of recent cuts to education spending. Supporters also remind voters that the bonds are self-supporting and not a drain on general revenue. In its 45-year successful history the program has never had to use general revenue from the state to pay for the bonds. Further, proponents of the amendment claim the evergreen provision makes sense because it eliminates costly tax-payer funded constitutional elections to ask for permission for funding authorization voters already approved in the past - since the amendment limits outstanding bond issuances to the total of previously approved authorizations.

The central opposition to Proposition 3 has not been with the increased bond authorization, but with the evergreen provision that allows bonds to be issued indefinitely into the future, as long as the outstanding amount doesn't surpass the $1.86 billion previously approved by voters. Opponents argue that this would effectively authorize long-term state debt on a continuing basis, something that has been traditionally done through the voters at the ballot box. They say the power to review the need for such funding should be retained by the voters and done on a periodic/as-needed basis.[5]

For further information and resources on Proposition 3 see: Texas Education Loans Finance Amendment, Proposition 3 (2011)

Proposition 4, County Redevelopment Bonds

Proposition 4 would allow counties to issue redevelopment bonds pledged by tax revenues from the increased property values in the redevelopment area. Under current law cities and towns can and do issue such bonds, but counties are not listed amongst the authorized entities. This amendment would add counties to the approved list.

Supporters point out that cities and towns already have the power to fund the redevelopment of underproductive areas through mechanisms such as incremental bond financing, and have done so with success. They say this amendment simply extends this important tool of local government to counties, allowing them to undergo critical redevelopment activities, such as investing in infrastructure, without having to raise taxes.[1]

Some opponents say that this is not an appropriate use of property taxes. Linking a county's ability to fund infrastructure to property taxes could create an incentive to raise property appraisals in order to bring in more revenue, they say.[1] Further, opponents argue that the type of financing arrangement allowed under this amendment restricts tax revenues from increases in property value to redevelopment areas. Tax revenues, under this argument, should be used to fund critical services countywide, not just in select areas.[1]

Another argument levied against Proposition 4 is that bond financing is debt; and debt is a form of back-ended taxation. Officials who want to fund redevelopment efforts should face voters directly by raising taxes. Further, the county's ability to repay the bonds is dependent on property values increasing. Given our current economic downturn that was brought about through a housing market crash, perpetual rising home prices shouldn't be assumed. Without increases in property values, how will the bonds be repaid?[6]

For further information and resources on Proposition 4 see: Texas County Redevelopment Bond Amendment, Proposition 4 (2011)

Proposition 5, Interlocal Contracts

Proposition 5 clears up a debated technicality in the constitution. It allows the legislature to authorize cities and counties to enter into interlocal contracts and agreements with each other for longer than a year without having to impose taxes and create sinking funds. Certain wording in Article 11 of the Texas Constitution has been interpreted to mean that if local governments enter into contracts with each other for longer than one year, that it automatically constitutes debt, which triggers taxing requirements. This amendment clarifies the constitutional language as to remove those taxing requirements on contracts longer than one year.

Supporters of Proposition 5 say that this interpretation prohibits potential valuable partnerships from being formed, or imposes costly annual contract renewal costs when partnerships are formed because it encourages contracts of only one year in length as to avoid the tax burdens. It limits the ability and willingness of cities and counties to enter into mutually beneficial multi-year contracts even in situations where a debt is not incurred. Passing this amendment would remove unnecessary burdens to cooperation and encourage local governments to work together. Further, supporters explain that this amendment simply clarifies longstanding confusion over misinterpreted constitutional language. They argue that the language of Article 11 was never intended to be interpreted in this manner.[1]

The amendment received unanimous bipartisan support during from the Texas State Legislature and no opposition was voiced during the legislative session. No other groups or interests have since come out against it.

For further information and resources on Proposition 5 see: Texas Interlocal Contracts Amendment, Proposition 5 (2011)

Proposition 6, Permanent School Fund

Due to huge budget shortfalls brought on by the down economy, public education funding saw significant cuts during the 82nd legislative session. Proposition 6 would make additional funding available for public education through accounting changes in the Permanent School Fund and State Land Board. It would also authorize up to $300 million a year to be transferred directly from the State Land Board to the Available School Fund.

The Permanent School Fund (PSF) is a trust managed by the State Board of Education established to invest state land and mineral rights and distribute the proceeds to benefit Texas public education. Proceeds from the PSF are transferred to the Available School Fund (ASF), which then distributes the funding to school districts throughout the state. The Texas Constitution dictates that no more than 6 percent of PSF investment returns can be transferred to the ASF; it also prohibits the PSF from distributing any proceeds if the principal of the fund falls below a certain benchmark.[1]

The Permanent School Fund is composed of two sources of funding: (1) returns from investments on the fund's principal (2) proceeds from state land and mineral investments. This amendment makes accounting changes to how the second source of funding (land and mineral proceeds) are distributed to the PSF. The Permanent School Fund's endowment is composed of significant amounts of public land. Money is earned from these lands through a number of ways such as oil and gas revenues, sales, leases, etc. While the PSF owns the lands, the General Land Office is charged with the management, administration, and sale of the land. The State Land Board (SLB) is an entity responsible for handling General Land Office affairs as related to the Permanent School Fund. The SLB has the discretion to use proceeds and revenue earned from PSF land to invest in real estate if it deems prudent.

The State Land Board decides how much of the proceeds from PSF land gets transferred to the PSF. Currently there are no minimum parameters or regulations stipulating how the State Land Board distributes those proceeds to the PSF. The SLB determines how much is distributed to the PSF for public education purposes and how much is reinvested. [1]

Currently, assets managed by the School Land Board are not included in assessing the Permanent School Fund's market value. Proposition 6 would change that. It would amend the constitution to include certain SLB real estate and cash assets in calculating the PSF's market value. The PSF's market value influences how much money is available to transfer to the Available School Fund for public schools each year.[1]

Proposition 6 would also amend the constitution as to allow the SLB to transfer funds directly to the ASF (capped at $300 million annually), instead of sending them first to the PSF to be passed on to the ASF.

Supporters point out that education funding is being cut and teachers are being laid off. They say the PSF accounting changes in this amendment would increase the amount of funding available for public education at a time when it is greatly needed, while not decreasing the principal of the fund.[1] Supporters also claim that in recent years the General Land Office has decreased the total funding transferred for public education spending despite increased returns from successfully investing lands. In these times the schools should be getting as much of the proceeds from school lands as possible to pay for critical education services. The Legislative Budget Board estimates that under current conditions the accounting changes would make an additional $75.4 million available for public schools in 2012 and 2013.

Opponents say the amendment offers a short-term increase in public education funding, but would actually decrease the total amount of education funding in the long-run. They say the accounting changes will result in a lower principal which would lower future investment returns, thus lowering future public education transfers.[1] Opponents say the GLO should have the discretion to invest land funds in the way it sees fit for the interests of the state without limitations on how much it has to put towards schools.[1]

For further information and resources on Proposition 6 see: Texas Permanent School Fund Amendment, Proposition 6 (2011)

Proposition 7, El Paso Parks and Recreation

Proposition 7 would add El Paso to the list of counties in the constitution that are eligible to be authorized by the Texas State Legislature to create conversation and reclamation districts for creating parks and recreation facilities. Passage of the amendment would not create a district, authorize a park, or create any new taxes or obligations. It would simply allow the legislature to authorize El Paso to put the creation of such to a local vote in the future.

Supporters say that a park system would be a great benefit to the citizens of El Paso, both in terms of improving the quality of life for current citizens and to attract and retain the type of human capital needed to fuel the economy. This amendment would be an important step in making that goal a reality. Passing this amendment would allow El Paso citizens to begin a conversation over creating a parks district. The amendment would not create a parks district or grant El Paso additional taxing authority; it would only place El Paso on the list of counties that could be authorized by the legislature to create a parks district.[1]

Opponents say that while this amendment would not grant additional taxing authority, it is the first step down a path that would end up in additional taxes for the citizens of El Paso, if a district is eventually passed. Given the down economy, local officials should not undertake any actions that could eventually add more tax burden on already struggling citizens.[1]Further, opponents point out that this amendment has been put forth as a way to start a discussion regarding developing a parks district. They say amending the state's constitution before the citizens have even decided they want a parks district is putting the cart before the horse. "Discussion should precede action, not the other way around."[1]

For further information and resources on Proposition 7 see: El Paso County, Texas Parks and Recreational Provision Amendment, Proposition 7 (2011)

Proposition 8, Water Stewardship Incentives

Texas drought conditions: yellow represents abnormally dry areas; dark red represents exceptional drought conditions. Source: National Drought Mitigation Center at the University of Nebraska-Lincoln

Record-breaking droughts and devastating wildfires have reeked havoc on the Lone Star State this year. The Lower Colorado River Authority reports that "the 11 months from October 2010 through August 2011 have been the driest for that 11-month period in Texas since 1895.”[7] Extreme arid conditions amongst a continually growing population makes water conservation a top priority for Texas. Proposition 8 aims to encourage Texans to use their water more efficiently by providing tax incentives for certain landowners to conserve water.

If passed Proposition 8 would amend the constitution to add water stewardship to the list of land uses that can be appraised on productive capacity to qualify for tax breaks.[1]The constitution currently allows for open-space land dedicated to farming, ranching, wildlife management (including erosion control and habitat stewardship), and timber production to be appraised in this manner.

Supporters say the amendment is a critical step in encouraging conservation of Texas's increasingly scarce water resources. Water shortages are an increasing threat to the state and the State Water Plan names voluntary land stewardship as a suggested prevention strategy. Proposition 8 will incentivize land owners to use water resources more efficiently as well as protect water quality. Over 90 percent of the state's water flows through or under private land, so encouraging land owners to conserve is a particularly smart strategy.[1]

Proposition 8 has attracted widespread support. The joint resolution (SJR 16) that got it on the ballot was passed unanimously by the Texas Legislature. In addition to bipartisan political approval, the proposed amendment is supported by business and environmental groups alike. The Nature Conservancy of Texas is a lead supporter, accompanied by the cosmetics namesake Mary Kay, the Greater Houston Partnership, The Sierra Club, and the Texas Wildlife Association.[8]

Opponents of the bill say the proposed changes are redundant because they duplicate already available tax incentives for erosion control and habitat stewardship.[1]

For further information and resources on Proposition 8 see: Texas Water-Stewardship Tax Amendment, Proposition 8 (2011)

Proposition 9, Governor's Pardon Powers

Proposition 9 would allow the governor to grant pardons, reprieves, and commutations to persons who complete deferred adjudication. Under current law the governor may only pardon convicted felons.

Supporters say this amendment would correct an existing inequity in Texas law by extending the governor's power to pardon to deferred adjudications, therefore making those with deferred adjudications eligible to have their records expunged. As it stands only those convicted of a crime are eligible to be pardoned by the governor. While deferred adjudications do not show up as convictions in a person's record, they do show up as an arrest and a form of probation - a significant barrier to employment and other life opportunities such as education. This change in the law would open up an avenue for people who have not been convicted of a crime, but received deferred adjudication, to have their records cleared. The amendment would not automatically extend a pardon or expungement to anyone. It would simply allow the governor the option of doing so if the circumstances merited.[1]

Opponents say that the amendment would have the effect of restricting public access to criminal records. They warn that caution should always be used when passing laws that restrict public information access. Instead of erasing the record from public memory, potential employers, schools, etc. should be able evaluate the records and make their own decisions as to what to think.[1] Some opponents argue against Proposition 9 on more technical grounds arguing that pardons "are designed for those who have been convicted of crimes. In cases of deferred adjudication, there is no conviction, so pardons should not be needed."

For further information and resources on Proposition 9 see: Texas Governor's Pardon Amendment, Proposition 9 (2011)

Proposition 10, Automatic Resignation

Proposition 10 would change the length of the unexpired term that triggers automatic resignation under the "resign-to-run" rule from one year to one year and 30 days. Certain offices in Texas, mostly those at the county and district level, are subject to the resign-to-run rule that forces an existing officeholder to resign from office before running for a new office if the amount of time left in the existing term is one year or more. Recent changes in Texas election law made to comply with the 2009 Military and Overseas Voter Empowerment (MOVE) Act would place an unintended burden on officials subject to resign-to-run without this amendment.

The MOVE act requires states to send absentee ballots to overseas citizens 45 days before an election. To comply with this requirement the Texas Legislature moved the primary election filing deadline from January 2nd of the election year back to the second Monday of December in the preceding odd-numbered year. County and district office terms end on December 31st. A January 2nd filing deadline meant officials with one year left could run for a new office without having to resign the last year of their existing term. Proposition 10 would extend the unexpired term length requirement 30 days in order to account for the recently enacted new filing deadline.

Supporters point out that this amendment simply revises the length of the unexpired term under the resign-to-run policy to bring it in line with the new filing deadline brought about by the recently passed MOVE Act. It is not a change in policy, but a technical change in order to reconcile an existing policy with a new election law. Not passing the amendment would effectively force officials to leave their jobs if they wanted to run for another office. This would place as undue financial burden on county and district officials who in general can't afford to take a year off work. The subsequent affect would be to discourage qualified candidates from running, leading to unneeded vacancies in critical positions.[1]

Opponents say that instead of reconciling the resign-to-run policy with changes in election law, the resign-to-run policy should be repealed. The policy only affects county officials and penalizes them for announcing candidacy for another office. County officials should be treated the same as all other Texas officials, who are not required to resign to run for another office.[1]

For further information and resources on Proposition 10 see: Texas Automatic Resignation Term Length Amendment, Proposition 10 (2011)

See also