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The Texas Legislature Passed a Stupid Bill. Now the State Is Being Sued

During the 86th Texas Legislature, which took place from January to May, 2019, legislators passed a really stupid, transparently awful bill. Governor Abbott signed it. Now the state is, predictably, being sued.

IPI warned them. The Trump administration Justice Dept. warned them. They passed it anyway.

And I mean, they REALLY passed it. It passed the Texas House 141 to 5, and it passed the Texas Senate 31 to 0.

It still boggles my mind that a piece of legislation with such obvious flaws sailed through the legislature with hardly any notice. But now the chickens are coming home to roost, and Texas taxpayers are going to be paying for the state to defend the indefensible in a likely losing cause.

The bill? SB 1938, sponsored by Sen. Kelly Hancock (R). The companion bill in the House was HB 3995, sponsored by Dade Phelan (R).

The legislation was a literal block on interstate commerce in a particular industry—the electric transmission industry. Further, it was a ban on new entrants to an industry. And finally, it made competitive bidding for electric transmission contracts illegal. Stunning, I know.

If you want to know more about the details of the legislation, the links below will be of interest.

The U.S. Constitution’s Commerce Clause has something to say about states banning cross-border commerce, which is why the Department of Justice wrote a 7-page letter outline its concerns that the bill would limit competition, among other concerns.

Our op/ed in the Dallas Morning News got a response from Hancock’s office, but passage of this bill didn’t seem to have much to do with its merits or with the policy arguments. Our TexByte went to most legislators, along with thousands of informed Texas citizens and media contacts. And of course our letter went to every member of the legislature, including key staff.

National organizations noticed as well, and got involved. Still, 31 to 0.

Governor Abbott had until 20 days after the adjournment of the legislature to veto bills, but he didn’t waste any time signing this one. While I was drafting another op/ed urging him to veto the bill, Governor Abbott signed the bill on May 16—before the legislature had even adjourned.

Now, NextEra ( Download file US District Court Case 1_9_cv_00626)  is suing over the legislation, as they should. It seems to me that the legislation is legally vulnerable in several areas, in addition to just being awful policy that no elected official who claims to support free-markets should have ever supported.

And now Texas taxpayers are on the hook to defend this mess.

I'm a fan and supporter of Attorney General Paxton, but there's no defending this mess. The sooner he explains to the leadership in Texas that there is no defending this mess, the better.

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