An Explanation of Unconstitutional Brackets

On Monday, a point of order was sustained against SB 6, relating to municipal annexation. The point of order was based on Rule 8, Section 10(b) of the House Rules and Article III, Section 56(b) of the Texas Constitution. The rule prohibits "a bill whose application is limited to one or more political subdivisions by means of populations brackets or other artificial devices in lieu of identifying the political subdivision or subdivisions by name." However, the rule does not prohibit a bill with a bracket that "bears a reasonable relation to the purpose of the legislation."

Texas courts have wrestled with this constitutional issue before, and they've developed a few complicated tests to determine if a bill violates the constitution. These tests are laid out in detail in Drafting §6.6 of the Handbook. While the tests themselves can be subjective, there are a couple of types of brackets that will almost always cause a bill to fail. First, do not use brackets that include a geographic condition. For instance, brackets that only include counties bordering the Gulf of Mexico (83 H.J. Reg. 2028 (2013)) or the Sabine River (80 H.J. Reg. 3163 (2007)) likely bear no reasonable relation to the bill. Second, if it is a population-based bracket, do not base it on a particular census year (Miller v. El Paso City., 150 S.W.2d 1000, 1001-1002 (Tex. 1941)). This is exactly what SB 6 did: " a municipality with a population of more than 227,000 and less than 236,000, according to the 2010 federal decennial census."

The issue with both geographic- and census-based brackets is that entities will not flow in and out of the bracket over time, called a "closed class." If it's geographic-based, the municipalities bordering a river will never change. If it's census-based, the municipalities with that specific population in that census year will never change. Such closed classes are almost always unconstitutional. If you simply remember that defect—that the members in the bracket will never change—you will be able to spot the overwhelming majority of defective brackets. However, as it is in this case, the bill will be sent back to the House committee even if the unconstitutional bracket was the work of the Senate. Today SB 6 was again voted out of committee, this time without that defective bracket.


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