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Follow TURFTexas for Sale: New laws sell Texas to highest bidder
Whether it was Voter ID, eminent domain reform, or the sonogram bill, such grassroots hot button issues got watered down demonstrating it was more about political pandering and serving up red herrings to distract the grassroots than about meaningful reform. Yet, bills that had massive grassroots support, like ending tolling existing roads, groping TSA patdowns, and naked body airport scanners, all failed to pass. With all the GOP talk of throwing off federal government interference in Texas, the Texas Senate cratered to threats from the Justice Department to make Texas a no-fly zone if it passed the patdown ban. Guess all that huffing and puffing amounted to mere election-year rhetoric to get re-elected.
Texas landowners need not apply
The author of SB 18, the eminent domain bill, Sen. Craig Estes called it a carefully brokered deal with special interests, brokered behind closed doors before the session even started, and Texas property owners weren’t invited. The bill does NOTHING to protect landowners from having their land taken and handed to another private party in the name of a laundry list of ‘public uses,’ the cornerstone of the landmark Kelo case from which Texans remain unprotected. SB 18 also fails to protect property owners from eminent domain for economic development and blight, and that’s by design based on what the Legislature had in store later.
Name your price & they’ll sell you Texas
A steady stream of bills to sell-off Texas infrastructure to private corporations flooded the pipeline during the 82nd Regular Session of the Texas Legislature with a key bill, SB 1048, to authorize state and local governments to privatize virtually every kind of public infrastructure (except roads) and charge user fees or lease payments for the public to access its own buildings: schools, hospitals, nursing homes, water supply facilities, ports, mass transit, libraries, even telecommunications and pipelines.
Chair of the House Transportation Committee Larry Phillips authored the most sweeping public private partnership (PPP) bill pertaining to roads (HB 3789 that never even got a hearing in Committee when the grassroots got wind of it), with Rep. Bill Callegari (HB 2729 passed both chambers) and Rep. John Davis carrying bills (HB 2432 the companion to Sen. Mike Jackson’s SB 1048) for other types of civil works projects. In total, more than 30 bills to privatize Texas infrastructure were filed this session.
Apparently Texas is for sale and SB 1048 will be Katie-Bar-the-Door on selling off virtually everything not nailed down. The priorities of this Legislature are crystal clear. It’s not what the grassroots have been demanding like ending diversions of road taxes to non-road uses. It’s not cleaning up the highway department. It’s not getting all of Texans’ gas taxes back to Texas (HB 3390 that died in the Senate Transportation Committee). It’s not reining-in the $31 billion in road debt (the House caved in conference committee adding $3 billion more in Prop 12 debt to the budget). It’s selling off Texas to the highest bidder, which is the MOST expensive, anti-taxpayer method of funding infrastructure.
TURF along with over 100 grassroots groups delivered an Open Letter (note: this version of letter includes only the list of groups, not individuals, due to file size) with 2,000 signatures (collected in just one week) to Perry and every single legislator putting them on notice about PPPs and transportation issues, yet the Legislature ignored the public opposition.
The bill was written by British infrastructure firm, Balfour Beatty, which doesn’t sit well with a plurality of Texans who don’t like the idea of foreign ownership of our public infrastructure. Unlike the 52 year cap on road PPPs, SB 1048 gives no limit on the length of time a PPP can last (one example given in Austin was for 100 YEARS) or whether such broad authority expires.
Two anti-taxpayer provisions in SB 1048 are the fact taxpayers secure the private entitys debt (2267.061 (f)) and it authorizes public subsidies for private profits by raiding taxpayers’ money through loans from the State Infrastructure Bank, which is currently NOT authorized in law (Sec. 2267.060 (2)). The House voted for Rep. Lois Kolkhorst’s amendment to the TxDOT Sunset Bill, SB 1420, to ensure the Phillips’ Amendment regarding the State Infrastructure Bank could not lend taxpayer money to private entities (both amendments were later stripped). Yet, no one insisted upon the same protection in SB 1048.
Eminent domain for private gain
PPPs represent eminent domain for private gain, which is what caused much of the backlash to the Trans Texas Corridor, where PPPs were the financing mechanism that grants these private entities the control of not just the facility, but the right of way/surrounding property where private companies make a killing on concessions. SB 1048, in Sec. 2267.001 (10) (a), grants the private entity rights to apurtenance, which the legal definition given by Merriam-Webster’s Dictionary of Law is “property (as an outbuilding or fixture) or a property right (as a right of way) that is incidental to a principal property and that passes with the principal property upon sale or transfer.”
In Sec. 2267.002, SB 1048 also uses the term ‘public purpose’ (which could mean a shopping mall) as opposed to the stricter ‘public use,’ to ensure the taking through eminent domain is for a legitimate public necessity). Texans hold private property rights sacred, and these bills will throw gasoline on the Trans Texas Corridor fire that lawmakers are attempting to convince constituents has been extinguished. Kolkhorst’s TTC repeal bill, HB 1201, passed both chambers but will Perry sign it?
So Texas lawmakers are basically granting government a blank check to trample on property rights and pick winners and losers — who will lose their land to benefit another, not for matters of public necessity. If the government can steal your land, it’s tantamount to stealing your wealth. Who said Republicans aren’t socialists? PPPs are just the sort of wealth redistribution they like — giveaways to their cronies and special interest friends. Democrats also like PPPs because it gives government more power. PPPs are a BIG step in enacting the U.N.’s Agenda 21 policies whose stated goal is to abolish private property and restrict mobility.
Sweetheart deals, government-sanctioned monopolies
Michelle Malkin called PPPs corporate welfare. Fannie Mae and Freddie Mac were PPPs, which required massive taxpayer bailouts.
PPPs socialize the losses and privatize the profits that amount to horrible public policy. Such contracts are sweetheart deals that eliminate competitive bidding and grant government-sanctioned monopolies (with guaranteed profits) to the well-connected.
Public interest not protected, kept secret
These contracts can be negotiated in SECRET, without financial disclosures (like financing, the structure of the ‘user fees’ or lease payments, viability studies, public subsidies, or whether or not it contains non-compete clauses or other gotcha provisions). There is no meaningful public access to PPPs before they’re signed, and the few guidelines created simply exist to advise governmental entities outside the public purview.
Corporations granted power to tax
Sec. 2267.057 of SB 1048 allows a private entity “to collect lease payments, impose user fees.” This means a private entity will have the power to levy a tax. Ditto for PPPs for highways.
The public cannot pressure nor hold accountable a private corporation if the ‘fee’ or ‘tax’ is too high. PPPs are the marriage of the corporation with the state and grants monopolies to private entities for a private rather than a public benefit. Such deals also violate the public trust and the fiduciary duty of lawmakers to protect Texas taxpayers. It’s piracy of the public’s assets, and state lawmakers of BOTH parties passed these bills by huge margins, effectively selling off what doesn’t even belong to them — our roads and infrastructure belong to the PEOPLE of Texas.
SB 1048 & HB 2729 include the sale of schools and public hospitals, and since PPPs grant private, even foreign, corporations a right to operate and maintain the “asset,” it grants authority to privatize the public sector workforce now in place. Now decisions will be made based on private profits, not the public interest.
Tolls in perpetuity comin’ your way
Tolling authorities got their every wish granted this session under the moniker of ‘local control.’ Two bills in particular, HB 1112 and SB 19, represent a huge policy shift away from traditional turnpikes where the toll comes off the road when it’s paid for to granting authority to keep tolls in place to fund other projects. HB 1112 by Rep. Phillips allows toll entities, in effect, to toll in perpetuity and use borrowed money to secure more borrowed money, the same multi-leveraging methods that caused the subprime mortgage crisis.
It’s like building roads with credit cards, and such risky multi-leveraged debt also means Texans will be tolled in perpetuity by un-elected boards (with the exception of El Paso’s tolling authority board), making it one of the most anti-taxpayer bills of the session.
SB 19 by Sen. Robert Nichols, known as the ‘primacy’ bill, gives toll entities the right of first refusal on all toll projects in its jurisdiction. However, when toll entities exercise a right of first refusal, under Nichols’ bill, they also get development rights for ALL future segments of the project. SB 19 also grants toll entities ownership of the road in perpetuity. This virtually guarantees tolls will be charged in perpetuity and that these projects will be never become non-toll roads. These effectively grant a limitless power to tax to UN-elected toll entities.
Robin Hood tax grab
Some have dubbed this practice known as ‘system financing’ as Robin Hood since it steals toll taxes from one corridor and pledges it to another corridor (that those same users may not use). It can also involve increasing the toll on one segment to gain ‘surplus revenue’ to pledge to another project and so on, making it impossible to take tolls off the original road. The Texas Constitution currently prohibits perpetuities in Art I, Sec. 26, though Sen. Chris Harris advanced a Constitutional amendment, SJR 13 (which died in the Calendars Committee in the House), to change that.
Toll authorities even got the right to conduct their own environmental studies, which is like the fox guarding the henhouse, ensuring the preferred alternative is always a toll road, not a free road.
No sunset on what’s wrong at TxDOT
TxDOT and toll agencies didn’t get left behind in the PPP feeding frenzy. SB 1420, the TxDOT sunset bill, will allow 15 Texas road projects (complete list below) to be sold off to foreign companies, a move Texans persistently and loudly object to. One of the worst parts of the bill aside from ending the ban on various forms of PPPs, are the sweeping changes to the environmental review process. It allows TxDOT to grant local toll authorities environmental clearance under certain circumstances (1- if the project is in a Metropolitan Planning Organization’s plan, 2 – if the Transportation Commission says the project is eligible, or 3 – if the toll entity pays TxDOT for the review), even projects requiring federal review.
The new terms allow TxDOT to enter into an agreement with local toll entities and the Federal Highway Administration (FHWA) where TxDOT does the environmental review on local toll projects, which essentially delegates the environmental clearance to TxDOT if certain terms of that agreement are met (Section 201.753). While TxDOT’s environmental decision still goes to the FHWA for final clearance, basically, the FHWA will simply rubber stamp the determination and review done by TxDOT.
Federal oversight has provided one of the few ways Texans have stopped unwanted toll projects, including the Trans Texas Corridor. TxDOT was caught doing grossly inadequate studies and even fraudulent environmental studies for which TxDOT was eventually prohibited by FHWA from conducting the new environmental review on US 281. So as such a bad actor, TxDOT is the LAST agency that should be given the right to grant environmental clearance for toll projects.
The great property tax heist…for ROADS!
The sunset bill also expands the use of Transportation Reinvestment Zones (TRZs) to heist property taxes to fund transportation projects. Local governments can designate any area it considers underdeveloped a TRZ and raid the anticipated property tax increases to pay for not only transportation, but also virtually anything else government wants to fund as well. TRZs expressly grant governmental authorities to get into the business of economic development, yet another property rights abuse. Don’t count on your property taxes ever being lowered when government can sell bonds dependent on ever increasing property taxes. A stand alone bill with similar language to expand TRZ authority also passed (HB 563 by Rep. Joe Pickett).
All this coupled with the fact that we ended up with a status quo Transportation Commission (NO CHANGE to the governing structure of this rogue agency at all) and few meaningful reforms to TxDOT were adopted (after multiple scathing sunset reviews and audits), the entire session was a transportation-taxpayer nightmare and a special interest dream.
Lawmakers ‘Just Say No’ to Lemonade Stands, Roadside Vendors
After a similar bill died in the Transportation Committee, your local county governments lobbied to ensure passage of HB 1768 that gives counties with a population of 450,000 or more the power to regulate roadside vendors (think taxes or putting you out of business), including the sale of pets, and anything that collects money, even your kid’s lemonade stand! At a time when Texans are looking for additional sources of income to help make ends meet, this is big government overreach when Texans can least afford it. Yet Perry and our politicians keep trying to convince us that Texas is the last bastion of freedom, limited government, and lower taxes!
A few victories
Often a session is characterized more by the bad bills that were stopped versus the good ones that got passed. That’s definitely the case with the 82nd Regular Session. The revolving debt bills, HB 3218 and HB 2802 that were tacked onto the TxDOT sunset bill, were successfully stripped out in conference. While the final repeal of the Trans Texas Corridor finally made it to the Governor’s desk (HB 1201), the passage of SB 1048, HB 2729, and SB 1420 essentially revive a Trans Texas Corridor-style sale of Texas infrastructure through Public Private Partnerships.
Aside from halting the Constitutional Amendment that would have repealed the ban on perpetuities, a bill to install automatic license plate readers in DPS vehicles failed, along with bills to take away lanes open to both autos and bikes and make them bike-only lanes and one to establish police checkpoints to verify auto insurance (‘Papers, pleez’). Then there are the bills to increase the gas tax, one solely dedicated not to building roads but to retiring mounting road debt, that also died. There are too many other bad bills to chronicle here, but for a full list, go the “Grassroots Action Center” at www.TexasTURF.org for a comprehensive list.
The message to the grassroots is clear. Sit down, shut up, and hand us your money, your property, and your freedom. When elected officials brazenly thumb their noses at over 100 grassroots groups and fail to even respond to their Open Letter (aside from passing all the legislation they said ‘NO’ to and allowing the bills they did want passed to die), the electorate had better take heed and respond appropriately and demand accountability by getting their pound of flesh at the ballot box. After all, every single one of them is up for re-election next year, thanks to the census and redistricting. Anything less is hazardous to your freedom!
List of Texas highways eligible to be privatized:
(1) the State Highway 99 (Grand Parkway) project (outer loop around Houston through Harris, Montgomery, Liberty, Chambers, Galveston, Brazoria and Ft. Bend counties — click on MAP HERE);
(2) the Interstate Highway 35E managed lanes project in Dallas and Denton Counties from Interstate Highway 635 to U.S. Highway380;
(3) the North Tarrant Express project in Tarrant and Dallas Counties, including on State Highway 183 from State Highway 121 to State Highway 161(Segment 2E);
(4, 5, 6) on Interstate Highway 35W from Interstate Highway 30 to State Highway 114 (Segments 3A, 3B, and 3C); and
(7) on Interstate Highway 820 from State Highway 183 North to south of Randol Mill Road (Segment4);
(8) the State Highway 183 managed lanes project in Dallas County from State Highway 161 to Interstate Highway35E;
(9) the State Highway 249 project in Harris and Montgomery Counties from Spring Cypress Road to Farm-to-Market Road 1774;
(10) the Highway 288 project in Brazoria County and Harris County;and
(11) the U.S. Highway 290 Hempstead managed lanes project in Harris County from Interstate Highway 610 to State Highway 99
(12) the Loop 1 (MoPac Improvement) project from Farm-to-Market Road 734 to Cesar Chavez Street;
(13) the U.S. 183 (Bergstrom Expressway) project from Springdale Road to Patton Avenue;or
(14) a project consisting of the construction of: the Outer Parkway Project from U.S. Highway 77/83 to Farm-to-Market Road 1847; and
(15) the South Padre Island Second Access Causeway Project from State Highway 100 to Park Road 100.