© 2017 by Kevin Stewart

The Rules of the Special Session

July 8, 2017

    The special session is set to begin on the 18th of this month. According to the rules of each chamber, bills may be filed 30 days prior to beginning of the special session. However, the governor can call a special session at any time, without any warning. Technically, the special session isn't official yet, which is why legislators cannot file bills. The special session will be official, and legislators can start filing bills, as soon as the Governor makes his call.

    There is no limit to the number of topics a governor can designate in his call. 20 topics is ambitious, but not unprecedented. Rick Perry called a special session in 2005 to address 22 topics. Bill Clements called one to address 59 and another to address 72 topics. The call limits the subjects that the legislature can consider—sort of. In an old and frequently cited case, the Governor called a special session to "reduce state spending" and gave specifics on areas to be cut. The court held that a bill increasing a tax was valid because once the governor opened the door to the subject of taxes, it was up to the legislature to decide whether to cut them or raise them. Baldwin v. State, 21 Tex. Ct. App. 591, 593, 3 S.W. 109, 110 (1886). This same type of analysis is used in both chambers to determine whether a bill is within the Governor's call. The Governor may also add other issues during session, which is called "opening the call." He can use this strategically to win votes on other issues.

    Bills are often introduced that deal with subjects not included in the call. Such bills are "outside the call." This can be done to try to convince the Governor to open the call to the new subject or to try to force the bill through without being added to the call. But there are a number of ways a bill outside of the call can be killed. First, the Lt. Governor and Speaker can choose to screen bills as they are filed and only refer bills within the call. The heads of each chamber basically choose between a policy of referring all bills or screening all bills. In the House, current practice is to refer all bills to committees regardless of their subject. But in the Senate, it's not clear what policy Dan Patrick will implement, as this is his first special session.

    The second way bills outside of the call can die is for the Speaker and Lt. Governor to sustain points of order on them. Speaker Straus typically gives the broadest latitude possible. There has only been one challenge in the House under Straus' leadership based on Art. III Sec. 40 of the Constitution, which prohibits bills outside of the call. The call stated "Legislation relating to establishing a mandatory sentence of life with parole for a capital felony committed by a 17-year-old-offender." Texas law permitted death penalty or life without parole for 17-year-olds who commit capital felony. The bill would have changed the statute to life with possibility of parole. An amendment would have retained life without parole as an option. The point of order was overruled. Additionally, House precedent says that an amendment is within the call if it is germane to a bill that is within a call. So germaneness becomes very important in the special session. As an aside, concurrent resolutions do not have to be part of the call in the House; Senate rules are silent on the issue.

    The final way a bill outside of the call can die is by the Governor's veto. The Governor has the same veto power that he does in the regular session: 10 days to sign or veto if there is time for the bill to be returned to the legislature and 20 days if there is not time to return the bill.

    If a bill that is outside of the call crosses all of these hurdles, the court will not strike it down. Almost 50 years after Baldwin, the Texas Supreme Court decided that the enrolled-bill rule (see Statutory Interpretation §2.4 in the Handbook) protects such duly passed bills from judicial scrutiny. Jackson v. Walker, 121 Tex. 303, 307, 49 S.W.2d 693 (1932).  This rule was adopted later by, but also applies in, the Court of Criminal Appeals. Maldonado v. State, 397 S.W.2d 862 (Tex. Crim. App. 1965).

    There are a few other minor, yet notable differences in the rules for the special session. In the House:

  • Regular: Notice of a public meeting must be posted five days in advance. Special: 24 hours in advance.

  • Regular: Speeches in the House are limited to 10 minutes in the last 10 calendar days of a regular session. Special: that limit only applies to last 5 calendar days.

  • Regular: House calendars must be posted electronically at least 36 hours before the calendar may be considered. Special: the calendar must be posted only 24 hours before consideration.

  • Regular: Bills must be delivered electronically to house member 36 hours before consideration. Special: Only 24 hours.

In the Senate:

  • Regular: House amendments on Senate bills must be printed and furnished to senators 48 hours prior to a motion to concur unless it is the last 72 hours of session. Special: 24 hours instead of 48.

  • Regular: Conference committee reports on general appropriations, tax, and reapportionment bills must be furnished to Senators 48 hours before action thereon. Special: 24 hours instead of 48.

  • Regular: Conference committee reports on all other bills must be furnished to Senators 48 hours before action unless it is the last 72 hours of session. Special: 24 hours instead off 48.

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