We the People…

For almost a century the Texas constitution has been used by special interests to hamstring good government. The new draft constitution changes most (but not all) of that.

January 1974By Comments

IN A GRAND CEREMONY AT the Capitol on November 1, the work of the 37-member Texas Constitutional Revision Commission was presented to the presiding officers of both houses of the Legislature. It consisted of a document entitled, with hopeful anticipation, “A New Constitution for Texas,” along with an accompanying text that spelled out the reasons for the changes the Commissioners had made in the state’s 97-year-old Reconstruction-era constitution.

They grappled with almost every substantial issue that exists in Texas politics. More often than not they chose the path of caution and conservatism, avoiding the temptation to draft a “pure” but controversial document that might fail to win the approval of the coming Constitutional Convention, or of the voters themselves, who must approve any new basic law before it can take effect. Among the issues they considered were several of special concern to urban voters: mass transit, local government powers, single member legislative districts, and public school education.

Discord prevailed when the Commissioners turned their attentions to one of the most blatant bits of special-interest legislation in the current constitution, the Highway User Fund. Since 1946, when the “Good Roads Amendment” was adopted, three-fourths of the total revenue from the state’s gasoline tax has been allocated to “the sole purpose of acquiring rights of way, constructing, maintaining, and policing…public road ways” and for the administration of traffic safety laws (the remaining one-fourth, amounting to more than $80 million a year at the current tax rate of per gallon, goes to the public schools). With these constitutionally-protected funds, the State Highway Department has developed the finest highway network of any state in the union, more than 70,000 miles in all. The Department (like any bureaucracy) desperately wants to keep these funds beyond the reach of a Legislature that might one day decide to spend part of them on something else, like urban mass transit systems. In this effort they are enthusiastically supported by the Texas Good Roads Association, which lobbies tirelessly for highway expenditures in perpetuity.

Several members of the Constitutional Revision Commission were of the opinion that even if the time has not yet come to allocate a portion of gasoline taxes to mass transit, the time surely has come to free the Legislature from an ironclad constitutional prohibition against doing so in the future. Other members questioned the wisdom of insulating highway funds from Legislative scrutiny while other funds, like health, were left to the give-and-take of political infighting that occurs with every biennial appropriation bill. Still others objected to the whole concept of special “dedicated” tax funds that are set in constitutional concrete. Consequently, they found themselves allied against the advocates of the status quo on the opening question of whether to preserve any dedicated highway fund at all.

Few issues elicited more emotional heat among the Commissioners. Vice Chairman Beryl Milburn, an influential leader in the state Republican party, supported the Fund with her most impassioned speech of the hearings:

This fund reflects the years of work that have gone on the highways, the safety system, the life blood of this state which has been built on transportation and communication….I would be very reluctant to remove the constitutional seal from this provision.

Dr. George Beto, a Lutheran minister who formerly directed the Texas Department of Corrections, urged his fellow Commissioners to remove the Fund:

I think you are being extremely short-sighted in committing yourselves to a dedicated tax for highways in this rapidly-changing technological age….

…you are taking a non-human value in this state and dedicating millions of dollars to it. To me a much more pressing problem than good highways—and I realize that I am almost speaking against the Flag, Motherhood, and God when I say this—but a much more pressing problem is the treatment of mentally retarded children in this state….

It was left to Dr. Peter Flawn, a geologist who currently serves as President of the University of Texas at San Antonio, to rebut Beto’s appeal. In a retort that is unlikely to win any Comeback-of-the-Year awards, Commissioner Flawn exclaimed:

Dr. Beto, who uses the highways? Human beings! You don’t believe that mentally retarded children are transported to and from hospitals over highways?

By a vote of 13 to lO, the Commissioners decided to keep the highway Fund in the constitution. The battle-ground then shifted to the question of how broad that provision would be. Former United States Senator Ralph Yarborough successfully (but as it turned out, only temporarily) managed to rephrase it to set aside “not less than one-fourth” of the revenues for the public schools, leaving the door open for a future legislature to increase the share going to education at the expense of the share going to highways—even to the point of allocating the gasoline tax wholIy to education. There was also discussion of amending the provision to permit future use of the highway share for county roads and urban mass transit, if the Legislature so chose.

No sooner had Yarborough’s proposal prevailed by a vote of 20-14 than representatives of the State Highway Commission, the trucking industry, and the Good Roads Association set out to overturn it, and to block any forthcoming amendment that might have allowed Mass Transit to get its sinister, unTexan foot in the door. The Commissioners were bombarded with pro-highway propaganda bluntly implying that those who doubted that highways shollld get preferential treatment really wanted to abolish roads. The highway Fund advocates declared with straight faces that this section of the Texas constitution must be left the way it is, because “there is no other way to keep the economy of this country rolling.”

The Good Roads Association diagrammed in exquisite detail the catastrophes which would befall a people so foolish as to believe that highways ought to win their appropriations by logic and persuasion.

“There are 505,346 Texas school children who go to school each day by bus.” [If the Fund were removed or squandered on mass transit, a future Abe Lincoln would presumably have to walk.]

“Texas farmers are wholly dependent on highway transportation….Good roads help to keep transportation costs down—and this is reflected in food prices paid by Texans.”

“Roads and streets are needed for emergency vehicles.” [But when the lack of mass transportation forces people to use automobiles, the resulting traffic slows down these same emergency vehicles.]

“One life is saved each year for each five miles of highway built to modern Interstate standards.” [Elsewhere, the Association points out that the avemge cost of a mile of Interstate highway in Texas is $919,000. That works out to $4,595,000 per life, a pretty costly way to avoid mass transit, which after all is safer than private automobiles.]

The 39,800-mile farm-to-market road system is a boon to urban Texans because it offers them “the quick mobility to find and enjoy a serene and relaxing weekend spot.” [Is it such a boon, in fact, that another 10,200 miles should be built instead of diverting part of their tax money into figuring out how mass transit might cut down some of that five o’clock traffic on the Stemmons Freeway?]

The highway program is “people-related.” Highway construction and highway transportation account for 1,164,471 jobs, including those in “motor vehicle manufacturing, the petroleum industry , auto sales, the Texas Highway Department [aha!], the truck and bus industry, and highway construction.” [All of whom would presumably be milling around in the streets looking for work if the dedicated highway Fund were removed from the constitution—when the other projects the money could be spent on would generate jobs as well.]

“There is reason to be concerned about the changing nature of political winds in Austin, Texas….At this moment four cities—Houston, Dallas, Fort Worth, and San Antonio—constitute 57.5 per cent of the urban population. Politics being politics, the legislators of the future can be expected to focus their interest, and the state’s moneys, on those projects that most promote the favor of these urban-oriented voters. In theory, this is as it should be. [So far, so good.] But if carried to the absolute letter in practice. the economy of the state would likely suffer substantial damage over the longer picture. For the economy of Texas is, to a great extent, an economy on wheels.”

And finally, the clincher: If the Fund is removed from the Constitution, some future urban-dominated Legislature might carry democracy to the absolute letter in practice and let the state’s “highly expensive investment” deteriorate or turn their backs on some particular road-building project. Warns the Good Roads Association gravely: “Highways cannot be built piecemeal…Oh, they can. But what would happen? You would drive for 20 miles on a splendid stretch of road, then come to a dead-end or a badly-deteriorated section. Doubtless this is not a situation any responsible person would want to encourage.”

Incredibly, the Constitutional Revision Commissioners eventually yielded to this barrage and erased the Yarborough amendment, thereby guaranteeing that a full three-fourths of the gasoline tax would continue to be earmarked for highways. Then they went even beyond the present constitutional language to make certain that none of the money could possibly be used for mass transit. They took out the reference to “public road ways” (which some, including Yarborough, felt might be broad enough to include rapid transit rights-of-way) and substituted language limiting the Fund to “a state highway system”—thus locking out not only mass transit but county roads as well. One Commissioner on the losing side remarked that “they rigidified it. This freezes the Legislature into spending all that money on just one kind of transportation. They can’t even spend it on a little county road going to the lake: they have to spend it on state roads big enough for trailer trucks to travel on.”

A minority report will be filed on the highway Fund issue, and there is every likelihood that it will be as hotly debated among the members of the Constitutional Convention as it was among the Commissioners.

URBAN INTERESTS FARED ONLY SLIGHTLY better on another major point of dispute, local government. The Texas Constitution has much to say on the matter of how cities and counties may govern themselves. The new document has the advantage of bringing all these myriad provisions together in one place (Article IX), and adding or rewriting a few that make it possible for local governments to operate somewhat more effectively; but on the crucial question of whether urban areas may cast aside the maze of contentious, conflicting political jurisdictions and put everything together in one Metroplan government, the Commissioners ran and hid. As a result, the local government reforms—though occasionally substantial—are far less than they could have been.

By the phrasing they chose for Section 1 of the local government Article, the Commissioners insured that county government would continue to exist, thus forestalling Metroplan. In Section 2 they made clear that the Legislature could grant broad regulatory powers to the counties if they chose, thus removing a possible constitutional objection to more effective county government. Section 3 represents the Commissioners’ hesitant efforts to construct a compromise between Metroplan reformers and conservatives who wished to preserve county government structure in exactly its present form. The compromise allows a majority of a county’s voters to create or eliminate the duties of various offices, or even to eliminate the offices themselves, while stopping short of allowing them to merge with municipalities into one big metro government. As a fail-safe for the conservatives, the compromise also provides that none of these powers can be exercised by the voters unless the Legislature first gives them permission to do so. Legislators are notably responsive to local official-dom, and inasmuch as local officials stand to lose the most if the voters are allowed to run amok changing the forms of government and casually discarding ten-term officeholders, it is problematical whether Section 3 will ever amount to much. But if it does, there is nothing to prevent a county from, say, hiring a County Manager.

Section 4 is the heart of the Commission’s proposed local government reforms. It authorizes counties with a population of 25,000 or more to adopt a charter, similar to a municipal charter, thereby expanding its powers of self-government. Any county could also adopt ordinances by majority vote; armed with that power, it is conceivable that Texas could for the first time enjoy effective building codes and land use planning in its unincorporated areas. Here again, however, Catch-22 looms: these charter and ordinance powers could be exercised only where authorized by the Legislature, and the Legislature in the past has not been unacquainted with the desires of various influential interests who do not smile at the mention of effective building codes and land use planning.

Furthermore, by providing that city ordinances shall prevail over county ordinances wherever the city’s territorial jurisdiction exists, the Commissioners have preserved the cities’ dominance and effectively blocked an important method of bringing together a collection of municipalities and rural areas into one coordinated unit: that is to say, they have blocked Metroplan. Instead, they have broadened the authority (which cities and counties already enjoy) to enter into cooperative agreements for services like utilities, waste disposal, police protection, tax administration, and libraries. Some members of the Commission who favored a straightforward Metroplan provision look upon this approach as the next-best alternative. At a minimum, it eliminates a nest of impediments that do exist in the present Constitution.

A number of factors contributed to the heavily-urban Commission’s decision to shy away from authorizing Metroplan government. The Local Government committee which did most of the work on that article was chaired by Barbara Culver, a County Judge from Midland who was herself no enthusiast of Metroplan reforms. The original committee drafts ignored the issue altogether, and it was not until the whole Commission instructed the committee to design a Metroplan proposal that it came to be debated at all. According to Judge Culver and Committee Vice-Chairman Bill Hartman (Editor of the Beaumont Enterprise and Journal), the hearings were filled with passionate testimony against Metroplan, from private citizens as well as officeholders. “It was basically a fear of change,” said Judge Culver. “Fear of putting your fine local police force under the county sheriff, and things like that.” Other Commissioners confirmed that the opposition was not confined to ranchers and other residents of unincorporated areas alarmed at the thought of having to submit to some city-dominated super-government; it also included uneasy suburbanites who saw the city they had deliberately chosen to escape reaching back out to seize them. Metroplan supporters were not nearly as vocal, so the Commission’s decision to abandon it was virtually foreordained. Urban representatives will doubtless raise the issue again at Convention time, however.

The proposed new constitution requires single member legislative districts everywhere in the state. This could have extensive political impact in the urban areas which do not now have them, including Austin, El Paso, Fort Worth, and Corpus Christi. The requirement that legislators run at large in giant districts has traditionally inhibited minority candidates as well as those who lack the time, independence, and financial backing to run a big-time campaign. When Dallas, San Antonio, and Houston switched to single member districts last year, the complexion of their delegations immediately changed to include more Republicans, blacks, Mexican-Americans, and marginal candidates, few of whom could have won the moneyed support that was previously indispensable to success. Similar results can be expected in other urban areas if the single member district principle is adopted statewide.

A related provision may have equally interesting political ramifications. For the first time, a Representative’s district may not be divided between more than one Senatorial district. (In the current Legislature, some Representatives share territory with as many as four Senators). Houston trial lawyer James Kronzer was responsible for the inclusion of this idea, which is known as the “pod principle” and has been adopted by seven other states. In theory, it prevents gerrymandering by forcing Senators and Representatives to work together in drafting district lines that both (or all) can live with. Currently each house of the Legislature draws its own district lines and the other does not interfere; thus there is nothing to restrain a Representative from constructing a district stretching from Dallas to the Gulf one precinct wide if by so doing he can accumulate a suitably compliant body of constituents and his neighboring Representatives are willing to go along. (Indeed, the district of Congressman Olin Teague comes close to fitting this description).

But if he must work it out not only with other Representatives but also with a Senator who has wishes of his own and whose district (because it is larger) sets the perimeters of the Representative’s quest for constituents, there is a better chance that sensible lines will be drawn: ambition counterbalances ambition. “There is no way,” says Kronzer, “that a Senator can force a gerrymandered district, because he will mess up a Representative who likes things the way they are. And vice versa.”

What effect this system may have on urban politics remains to be seen. Certainly it ties the Senator and “his” Representatives closer together than they now are, and there are those who feel that it will strengthen the Senator’s hand in legislative politics because it will permit him to block the Representatives’ legislation if they try to push him around. Because there are so few Senators (the proposed Constitution does permit the number to be increased from 31 to 50) they are more likely to have a substantial urban electorate than many Representatives do. If the “pod principle” does operate to strengthen the Senators’ hands, urban influence in the Legislature could thereby be increased. But no one really knows yet.

The inner cities (as distinguished from suburbia) won some impressive economic advantages in the section of the proposed Constitution dealing with public school education. Writing in the shadow of the United States Supreme Court’s decision in San Antonio Independent School District v. Rodriguez, the Commissioners laid down the principle that “the quality of education…shall…be based on…the wealth of the state as a whole,” rather than varying according to the tax resources each particular school district happens to have within its geographical borders. For some urban districts, like pitifully poor Edgewood in San Antonio, this amounts to a constitutional promise of massive state aid.

But the Commissioners went even farther. In a provision aimed squarely at the beleaguered city centers, they authorized the Legislature to “take into account the variations in local tax burden to support other local government services.” Put simply, this means that central city districts may receive preferential treatment when the time comes to distribute state education dollars, on the theory that urban taxpayers are already burdened with a disproportionate tax load to support a wide range of municipal services that the surrounding suburban and rural residents use but do not pay for. Huntsville residents find many occasions to use Houston’s streets, but Houstonians seldom reciprocate. The visitor from Granbury takes for granted that the Fort Worth police will respond if his car is stolen or wrecked on a shopping trip to the big city; although Fort Worth travelers doubtless expect the same help from Granbury, they are far less likely to need it. The cities are the ultimate repository for many of the social problems of their surrounding areas, be they runaway children or hardcore unemployed. Their tax dollars are always spread too thin. This constitutional provision is designed to help bail them out.

“The suburbs have better schools because they’ve always been able to devote more money to them,” remarked one Commissioner. “They just don’t have as many expensive, non-school services to provide and pay for. The cities have more obligations, more services. Once we laid down the principle that every child should have equal access to educational resources, it follows more or less automatically that the Legislature should be able to take these city services into account when they determine what is an ‘equal’ tax burden for the schools.”

The Commissioners adopted this new approach without apparent dissent. The chances seem good for the Constitutional Convention to retain it in the final document.

Much as the members of the Constitutional Revision Commission would like to believe that they have written “A New Constitution for Texas,” the final decisions on these and numerous other questions rest with the legislators themselves. When they meet as a Constitutional Convention on January 8th, the real, dead-earnest battles will begin.

For the special interests—not only the highway crowd and local officials—this battle is the big one, and the pressure they will be able to bring on legislators preparing for primaries in June will be immense. It will be the lobby show of a lifetime, and hopefully the future of Texas will not be lost in the shuffle.

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