Come all, gather around the camp fire. Grab your smores and prepare yourself for the tale of how S.B. 1248 was passed into law. I warn you at times this is a harrowing tale, but I'll begin with a spoiler. This story has a happy ending.
Before you get too far, know that this story goes deep into the weeds, including the procedural mechanics of what it is actually like to move a bill through the legislative process with the live-fire of real time politics going on at the same time. For those looking for the truncated story and the details of what the bill does, I'd encourage you to read our 85th Session Recap posts. But for those curious about what really happens inside the ropes, read on.
One of TMHA's top legislative priorities was to take on Texas cities that were imposing, "you move it you lose it," ordinances that were killing individual lots within existing communities. This is the story of the life of the bill to address this issue, and the life and death decisions that had to be made for the bill along the way.
When you were a kid did you ever read any, "choose your own adventure" books? Books that had multiple story lines, and you would hit parts where the book said, "if you choose to explore the pirates hidden cave go to page 45; or if you choose to go back to your ship to form a larger search party, go to page 78." This is such a story. Along the way there will be key decisions that must be made with the fate of success or failure hanging in the balance. But since you already know the bill passed and was signed into law, this telling should illustrate the key decisions and close calls that had to be made and just how often this bill came to dying.
Let us begin. Through our relationships and Lobby Team we found House and Senate sponsors who were willing to file bills and engage on this issue.
Coming right out of the gate the anticipated opposition materialized as expected. We were told within two days of the bills being filed from another lobbyist who represents a city that, "your mobile home park bill is dead on arrival." A phrase to this day makes me smile now knowing the outcome.
We confronted the Texas Municipal League (TML) who objected to the bill. We laid our cards on the table and they listened. They didn't like it and they eventually came back with a list of objections to the filed version of the bill. However, included in the specific objections was a general objection of the, "erosion of local city authority." That was code for, "even if you negotiate with us on our specific objections, we will still oppose the bill and work to kill it at every turn." But they also couldn't defend the egregious examples we provided. Why would a city be allowed to kill a lot that was recently vacant in a nonconforming community when they wouldn't kill a single unit in an apartment complex or a single storage unit in a self-storage facility? They didn't have answers for those questions, or at least not convincing answers. But this initial interaction would mark the first in a long series of opposition moves against these bills.
The bill first gets moving in the Senate. With the committee chairman's support and blessing, we got a hearing on March 28 in the Senate Business and Commerce committee.
We anticipated the opposition would try to back us into a corner if it was perceived we were trying to allow for substandard living conditions. We needed to maintain the high ground that what was happening against us was not fair and was a gross infringement on property rights. With all of this in mind we focused the bill language down to three asks – right to replace, preserve the lot footprint, and a state-wide definition of what constitutes a manufactured home community.
At the heart of our base strategy was the question "is there any value in manufactured homes inside a community as sources of affordable housing?" If the answer is yes, then the right to replace those homes is the only way they continue to exist. Any other argument to the contrary means that overtime the communities would eventually die.
At the hearing the bill author, Sen. Buckingham, was a rock star. She laid out the bill brilliantly. Then testimony was taken. I was there representing the industry and communities. Next to me all opposed to the bill were representatives from TML, Belton, Harker Heights and Temple. They threw everything out at the committee about the substandard housing, improper codes, and dangerous conditions of "mobile home parks." One witness, a fire chief, spoke of fire risks with a single event spreading to other homes nearby. But Sen. Buckingham seized upon the faulty logic and sprang on the chief asking him about apartment fires starting in a single unit and spreading to others. The committee chairman added in questions that pointed out their flawed logic.
However, one of the criticism that landed a blow against us was one we anticipated. Included in the bill language was the ability to replace an existing home with a new or used home. We had forewarned both our sponsors that this issue could surface and there could be pushback to limit replacement to only new homes or newer homes. We did tell them that the ability to replace existing homes with used homes was an affordability issue. For some homeowners, it is an upgrade to get a used home, which are more affordable than brand new homes. Indeed, one of the representatives from a city testifying against the bill said they did not like the prospect of an old home being replaced by another old home. He went on to testify that in his opinion old homes being replaced with just as old homes was more likely than homes being upgraded.
Ok, adventurers, here is your first decision. Choose to stick with the language you have that allows both new and used home replacement, stay aggressive, but know this might create additional doubt and blowback from legislators. Or, jettison the used provisions, take the safer path and further narrow the applicability of this protection to only new homes, which is much less likely to cause doubt or disagreement with legislative members?
We opted to stay aggressive. We are grateful we had the support of our sponsors who would fight with us for both a new and used option.
After the Senate hearing, our lobby team worked with B&C members on the bill so when the bill came to a committee vote nine days later, on April 3, it was voted out unanimously. Our first small victory, but still a long way to go.
Out of committee meant we were headed to the full Senate floor. Now the scope of members to talk with about the bill expanded from the nine B&C members to the full 31-member body of the Senate. We pounded the pavement meeting with members and staff preparing for the floor vote. On April 19, the bill hit the Senate floor, and Sen. Buckingham laid out her bill. We waited anxiously in the gallery, hearing every second that ticked by, watching and waiting to see if any of the other senators rose from their chair to start asking questions or offer amendments. But no one rose, and the Lt. Governor called for a vote. When the votes came in we had passed the bill 31-0; unanimous Senate support despite the opposition to the bill. The bill was out of the Senate and headed to the House.
Meanwhile, while all this action and work was going on in the Senate, we were also active on the House side. Remember we have both a House and Senate bill, and we run both horses as fast as we can on parallel tracks to improve our odds of success. This becomes critically important later in the story. The Senate horse was out of the gate faster, but we were still riding the House version as well.
The critical first step in the House was what committee the bill would be referred to. Our team concluded there were two possible committees where we could land – Urban Affairs or Land and Resource Management (LRM). Our team was highly concerned that if we went to Urban Affairs that would be it; the bill would in fact be dead on arrival. The reason is that the cities have close ties with the members who sit on Urban Affairs because they come from highly urban districts. Most of the members on Urban Affairs are former city council members or mayors. In any committee, the chair controls the power to decide if a bill referred to his or her committee is granted a hearing. No hearing and, well, your bill just faced the equivalent of being shot in the gate by the starter's pistol.
The decision to refer bills in the House rests solely with the Speaker's office. It is mostly a "black box" on the decision regarding committee referrals, but we certainly made our pitch that we felt Land and Resource Management was a better fit because the members of that committee came from districts where manufactured home communities and the issues we were addressing were more relevant.
Much to our delight the Speaker referred the House version to LRM. We were out of the gate, still alive and now off and running.
On April 12, the bill was set for a committee hearing in LRM. We have all heard that the, "early bird gets the worm." Well, for our LRM hearing the, "late night owl gets the mouse." Ok, I made that up. Who knows maybe that will catch on, and I have just coined a new saying.
The point is, H.B. 1852 got stuck behind a series of highly controversial eminent domain bills that drug on from 1 p.m. until nearly midnight. With a near empty committee room expect for TMHA's Lobby Team and myself ready to testify, the first witness called was the city planner from Harker Heights who testified against the bill. He had also testified against the bill in the Senate, and essentially repeated his objections to the bill citing safety concerns, substandard housing, and allowing used homes to replace old homes. Next up was the general counsel for the Texas Municipal League who also testified against the bill. Finally, I was called up.
You know you work as hard as you can, prepare as much as possible, anticipate and worry for all contingences and then, ever so often, you just end up getting lucky. This was a lucky night. One of our clearest cut examples of unjustified discrimination targeting manufactured home communities was in Harker Heights. They had an ordinance that required the house-to-house setback for home replacements to be 35 feet for manufactured homes in a community. Their site-built subdivision setbacks were only 12 feet. With no justification. We had locked in our sites the very city where they actually had a representative in the room not five feet from where I was testifying.
Attempting to suppress my emotional mixture of nervousness and glee, I laid out the facts. I used Harker Heights as the example of the exact type of unfair treatment against owners of manufactured home communities by cities that, as I said when I testified, can on its face give the impression that cities were using their authority to target and discriminate against manufactured home communities.
After I concluded my testimony the LRM chairman called back up the representative from Harker Heights and asked him if after reviewing the bill language and hearing the testimony he had anything else he thought the committee needed to know. This was code for the chairman calling him to defend his cities policies and justify their actions. The city had just been accused of targeting and discriminating against communities, and the chairman wanted the committee members to hear if the city could justify such treatment. The city representative simply replied that he had nothing else to offer, and took his seat. Instant validation of our assertion and positions. A week later LRM brought the bill back up and voted it out of committee unanimously.
Once out of the House committee, the bill headed to the crucial Calendars committee. In the House, unlike the Senate, before any bill can even get to the House floor it has to be agreed to be put on the floor for debate by the members of the Calendars Committee. TMHA has strong relationships with many members of Calendars, and had met with the chairman of Calendars prior to the session starting on this issue. Then, during our Capitol Visit Day long-time TMHA member, David Lewandos, who is a constituent to the Calendar's chairman met with Chairman Hunter again on this bill.
However, at this stage of the session, Calendars support was not our biggest challenge. No, our most menacing enemy was time. We were now approaching the start of the end of session deadlines for bills.
It is a well-known fact that the clock kills more bills each session than anything else. And the first guillotine like deadline for House bills was May 11 at midnight. Get to the floor by then, or your House bill is dead.
Trouble is there were a few more political things going on at the same time other than our right to replace bill. As this deadline approached a faction of the Republican party in the House, called the Freedom Caucus, had become so upset that House leadership had not allowed their socially conservative bills to see the light of day that they began a process known as "chubbing." Which just means they did what they could to slow everything down to a halt in the House.
TMHA pressed as hard as possible to get our House bill set, but once it became obvious what the Freedom Caucus was doing, all House bills that did not have viable Senate companions were moved up in priority. H.B. 1852 did have a viable Senate companion, S.B. 1248. The Senate bill was already passed and sitting in the House, so the H.B. 1852 had to take a back seat to bills that only had House versions.
The Freedom Caucus was successful in their efforts to run out the clock and at the stroke of midnight, time ran out on our supported House bill along with hundreds of other bills.
The following day was the last Local and Uncontested Calendar. This is a calendar of non-controversial, agreed to, uncontested bills. The process is typically an easier, more expedited process for bills where everyone agrees there doesn't need to be any rigorous floor debate. Normally, if there is a member willing to speak for 10 minutes on a "local and uncontested bill" or five member signatures are gathered the local bill is "knocked off" the Local Calendar and is sent to the regular Calendar. This can be unfortunate, but not fatal for a bill. It simply is delayed a few more days until it can be brought up on the House floor. Normally.
But the last Local Calendar is different. The last Local Calendar comes on the day after the last Regular Calendar. If a bill is knocked off the last Local there are no more regular Calendar days to fall back on. Meaning you get knocked off the last Local, your bill is dead as a doornail.
The Freedom Caucus was not quite done. Consisting of about a dozen House members they had more than enough to gather the necessary signatures and proceeded to kill the entire last Local Calendar. Every bill, no matter the subject matter, no matter the author or content. Indiscriminate killing of every bill. They all died.
Between slowing down the procedural process to run out the clock and killing the last Local Calendar, the Freedom Caucus killed more than 300 bills in less than 36 hours. This was called the "Mother's Day Massacre." Included in the carnage of bills was H.B. 1852.
Down, but not out.
While our House bill was dead, we weren't out of it yet. Thankfully our strategy to have redundancy by having a Senate and House version of the bill gave us a fallback plan. The deadline for Senate bills to clear the House was May 23. We had a week and a half to now run the Senate version all the way through the process.
Once again, the time pressure was ratcheted up even further. The procedural logistics to run a bill all the way through and get it to the floor takes time. And while the calendar technically said we had a week and a half, the reality is that to have a viable shot to actually make it to the floor before the deadline hit we needed to be all the way through the Calendars committee no later than Friday. So in reality our week and a half was only five days.
The bill got referred, and Chairman Herrero really helped the bill out by calling a LRM committee meeting and voted the Senate version of the bill out unanimously on Monday, May 15 – day one. But remember it takes time. They have to complete the necessary paperwork and committee reports, which meant the bill didn't hit the Calendars Committee until Wednesday, May 17 – day three of only five.
What did this all add up to?
TMHA's Lobby Team had 48 hours to throw everything we possibly could into the Calendars Committee to set the bill. Not only was it TMHA's Lobby Team, but also key TMHA members with close relationships with House members who serve on the Calendars committee. I want to say a very special thanks to David Lewandos, Bill Maupin, and Karl Radde who called into their House members that they have developed personal relationships with over the years to request the bill get set.
At this stage of the game there are thousands of bills all competing to get the few coveted spots in the final days on the House floor.
The result? Success.
Thursday, May 18, Calendars sets the bill. Now this doesn't mean it hit the House floor on Thursday (and thus why as a practical matter we only had at the latest until Friday). The House takes up bills in order. Setting a bill on the Calendar puts it in queue. As the House works down the list of bills on their calendar you hope and pray they will eventually get to the bill you care about.
Once the bill is set, the list of members to touch grows. We go from just the members of the Calendars Committee to all 150 House members and the various caucuses they are influenced by. Our turn on the floor finally comes on Saturday, May 20, and that is the day all hell broke loose.
The day before our bill hit the floor, lobbyists for the City of Fort Worth approached the bill sponsor asking for a carve out so that the bill wouldn't apply to Fort Worth. No justification was provided as to why Fort Worth should be exempt. The bill sponsor rejected their request. Then later Friday evening these same lobbyists came back around and told us they were "off the bill" and no longer had any issues with the bill. This, we learned the next day, was an intentional lie to throw us off.
Saturday morning, in a surprise attack four minutes before the bill hits the floor for debate we are alerted that one of the Fort Worth House members, Rep. Collier, is offering an amendment to carve out of the bill every city in Tarrant County. Rep. Collier offers the amendment because she asserts that her district has "figured out" the issues with communities and therefore should be exempted. Rep. Lucio, the bill sponsor, does not want to accept the amendment and makes a motion to table the amendment.
At this point on the floor there is mass confusion. Many members are not paying attention, some are discussing more controversial bills coming later in the day, and many are not paying close attention when they call for a vote – on the motion to table the amendment. Some members thought they were voting on whether or not to accept the amendment, which would mean a "no" vote. But the motion was to table the amendment, meaning for our side to prevail against the offered amendment we needed a "yes" vote. There were also members who for political reasons, sided with Rep. Collier and others, including several Republicans who are traditionally advocates of private property rights, from Tarrant County who also sided with the amendment carve out. Then, of course, there were the sly moves of the lobbyists that had previously lied to us and worked to orchestrate this entire surprise amendment, and the members they were able to help them pull off this attack.
The unfortunate result; we lose the vote on the amendment by 13 votes. This means the Tarrant County carve out was now added to the bill. The bill then passed what is called "second reading."
Now we have a bill that has passed second reading, but with a giant Tarrant County size hole in it though this is not our most immediate concern. First, we must track down the votes against and find out why those we thought were for us had voted against us. The threat moments after the amendment was added was if TML and other city lobbyists would see the failure to stop the vote for the Tarrant County exemption, smell blood in the water, and come after the entire bill the next day on third reading to try and kill it on third reading. The blood pressure spike there being if we didn't have a majority of members to stop an amendment, then maybe we didn't have a majority of members to pass the entire bill the next day.
Now in full on red alert mode, we had to survive the third reading vote the next day. This meant working members Saturday and early Sunday morning before they went back on the floor. Many long and early member meetings were had to protect the bill. The effort pays off, we avoid any third reading disaster, and the bill passes third reading on Sunday afternoon.
We are sitting with a bill that has now been changed in the House, so the Senate version and House version don't match. Big decision time – come on trooper's time to choose your adventure again and pick which cave to go into next.
Cave path number one: Bitterly stomach the Tarrant County carve out, but accept the amendment so there is no fight and no risk of putting the entire bill at risk of not passing. Of course, to do this means that the carve out will be in the law forever. As a practical political reality, it was understood as impossible to try and come back in later session years down the line and back out with a new bill in, say 2019, the exemption. So, if you accept it, you get the bill, but the Tarrant County carve out is forever. In our efforts to quantify the impact we estimated there are 181 manufactured home communities in Tarrant County. Not an insignificant amount by any stretch.
Cave path number two: Fight the amendment by refusing to accept the House amendments and go to a conference committee. In conference the bill authors would strip out the Tarrant County carve out, then the bill without the carve out must go back to both the House and Senate to be voted on again by both full bodies needing a majority to accept the conference committee reports. Option two has the risk of the clock running out, once again, and losing the entire bill.
Time to decide.
The decision was made to stay aggressive, go to conference, strip out the carve out, and work the votes to pass the bill without the exception within the limited time left.
The bill heads to conference, and as predicted our sponsors strip out the carve out. But again, the danger here is the clock, and she is starting to tick loudly.
The conference committee report is reported May 27, Saturday afternoon at 1:30pm, which triggers the procedural rule that requires a 24-hour "lay out" before the bill can come to the House floor for a vote to accept or reject the conference committee report. This means the earliest the House could vote would be Sunday afternoon. Just so happens that Sunday was the last day in both the House and the Senate to vote on conference committee reports.
Not to mention we still need to get majority votes. At this point we felt relatively confident based on all our member work that we had the votes on the bill. You can never be certain and crazy things happen, and clearly our adversaries were not above dirty tricks. This is the peak of pressure, anxiety and nerves.
Then we get a Saturday evening surprise.
The House worked through its Saturday calendar including the state budget and rather than calling it a day there was a motion to suspend the 24-hour lay out rule. This meant that all of the bills that had to wait until Sunday were now ready to be taken up, including our S.B. 1248. While surprising this event ultimately benefited us. It compressed the time from when the committee report came out and gave the opposition one less night and morning to work to defeat the vote to accept the conference report. And we knew at this time that there were members with districts that touched Fort Worth who were adamantly against the bill.
At 6:10 p.m. on Saturday, S.B. 1248 came up for a vote to adopt the committee report. And in a flash the vote was called – 133 to 12 to adopt the committee report. We won. We had managed to flip 57 votes from a week earlier to secure the victory. We were finally out of the House with a clean bill.
One step left. The Senate vote.
The following day, Sunday, was it. Sunday was the final day to adopt a conference committee report. We had until midnight to complete one more step – pass the committee report in the Senate. Having previously passed unanimously in the Senate, we were confident that we had the Senate votes. We just needed the bill to come up for the votes to be cast. At approximately 2 pm Sunday afternoon S.B. 1248 was laid out by Sen. Buckingham to vote to adopt the committee report which was essentially getting the bill back to the version that had previously been voted out of the Senate now 40 days prior. The vote was a glorious 30-0.
S.B. 1248 is finally passed and headed to the governor's desk.
On June 12 Gov. Abbott singed S.B. 1248 into law. We had met early in the session with the governor's policy folks to discuss our desire for what turned out to be S.B. 1248 and had gotten his office's signoff. It was just a matter of getting the bill to his desk.
So, there you have it adventure readers. You have made it to the end of this tale. I hope you enjoyed this little choose your adventure story. It was a long and hard fought battle. One that I'm happy to report we prevailed, and avoided the paths along the way that would have led us into the cave with the killer pirates that would have ended our journey prematurely on page 45.
The legislature is now back for a special session this summer, and will return again in 2019 when we get to start all over with a brand-new book. Until then…