Speaking at a meeting of Bell County Republicans in 2017 in Belton, about sixty miles north of Texas’s capital, Greg Abbott opined about the freedoms enjoyed in the state he governs. “As you leave Austin and start heading north, you start feeling different,” Abbott told the crowd. “Once you cross the Travis County line, it starts smelling different. And you know what that fragrance is? Freedom.”
Leaving aside Abbott’s swipe at Austin, there’s a question now about what he smells when he passes into Williamson County these days. According to a recent study by the Cato Institute, a libertarian think tank cofounded by prominent Abbott donor Charles Koch, Texas ranks dead last among the states when it comes to personal freedom. (Probably of some relief to Abbott, Cato rates Texans highly on a few particular freedoms: chiefly economic ones. Based on our lack of a personal income tax and our right-to-work laws that ensure a worker cannot be required to join a union, Texas ranks number six on the think tank’s index of economic freedom.)
Cato relies on twelve metrics, each weighted differently, to create its personal freedom index. Almost across the board on those categories, Texas fares poorly. We rank thirty-fifth on educational freedom, thirty-ninth on gambling, forty-second on asset forfeiture, forty-third on incarceration, forty-fourth on marriage freedom, and dead last on both cannabis and travel freedom (see below for fuller definitions). Alcohol, gun, and tobacco rights; the right to give large sums to political campaigns; and the right to engage in activities that harm no one, such as safely setting off fireworks, are the only categories in which Cato finds Texas doesn’t rank in the bottom half of the states. Notably, the institute doesn’t factor key issues such as reproductive or transgender rights into its ratings.
Cato finds that the fragrance of Texas freedom right now stinks. Let’s take a closer look at how and why the institute thinks Texans might need to hold their noses, whether they’re driving through Austin or elsewhere.
Arrests and Incarceration
Cato’s ranking assigns a heavy weight to incarceration rates, which are adjusted for violent and property crimes, to look at whether each state incarcerates more individuals than the crime rates suggest it should. Cato also considers such factors as how often a state makes arrests for victimless crimes—which the study lists as including drug, sex work–related, and “gun” offenses (presumably possession-related only); driver’s license suspensions for such offenses; and whether a state has passed reforms regarding qualified immunity, which protects police officers from most civil lawsuits.
Texas’s low ranking here isn’t surprising; our incarceration rate dramatically outpaces that of the U.S. as a whole and puts us firmly in the top ten states in locking up residents per capita. A drug offense triggers an automatic six-month suspension of a driver’s license, which requires classes and fees to restore. An attempt in the Legislature in 2021 to end qualified immunity went nowhere in the face of opposition by police unions; a similar attempt in 2023 was another flop.
Criminal justice reform in Texas was once a popular, bipartisan issue championed by Republicans such as former governor Rick Perry—but in recent years, it’s grown much more difficult to advance reform-minded legislation in the state.
Texas, which bans THC, the psychoactive ingredient in marijuana, in virtually all cases and has harsh sentencing laws, ranks dead last on the Cato Institute’s list. The metric also considers other factors, such as whether laws that stop short of legalization drive up consumer costs for cannabis and economic impacts on producers.
Civil Asset Forfeiture
If you have an asset that officials deem suspicious, and they decide it may have been acquired in relation to criminal behavior, they can seize that asset and are under no obligation to give it back—even if you’re never charged with, let alone convicted of, anything illegal. Most often, this type of asset forfeiture plays out when police officers, during traffic stops or other encounters with the public, find large sums of cash. (Here’s a story about a man who drove with $42,000 to Houston to buy a tractor trailer and lost it after being accused of following the vehicle in front of him too closely in his rental car.) Federal law enforcement is also able to engage in the practice. In Texas, state law not only protects asset forfeiture but allows law enforcement to share the proceeds of assets claimed by federal agencies. For these reasons, Cato ranks the state forty-second.
Civil asset forfeiture is a rare issue that can unite both libertarian- and progressive-minded Americans in opposition. This practice is unpopular among Americans nationally, who believe that, say, a person may have a legitimate reason to carry a large amount of cash while driving. But civil asset forfeiture is popular among police, whose departments often enjoy receiving the additional funds, as well as among politicians who wish to demonstrate their support for police. In 2017, Donald Trump offered to “destroy” a Texas lawmaker who opposed the practice.
Now we’re getting into something that has sharply divided the state: “educational freedom”—which the study considers mainly in terms of laws establishing education savings accounts (voucherlike programs in which public tax dollars help parents, primarily upper-income ones, pay for private schools), tax credits for private schools, and direct vouchers. Education savings accounts have been a key issue in the civil war between factions of the Texas GOP.
Despite Abbott’s efforts, Texas has not passed a law creating education savings accounts or vouchers. The governor has demanded that lawmakers do so several times this year, but many rural Republicans and Democrats have blocked each effort in the Texas House, in large part because many rural areas lack affordable private school options, and because the public schools serve as centers of community life in such areas.
Texas ranks low here because most forms of gambling are illegal. The state makes limited exceptions for horse and greyhound racing, certain charity events, “social gambling” (say, an office March Madness bracket contest), and the state lottery. That didn’t change in the 2023 legislative session, despite the House approving a bill that would have put the issue directly to voters, as the bill died in the Senate.
Previous editions of Cato’s personal freedom index focused primarily on same-sex marriage; for as long as the 2015 Obergefell v. Hodges U.S. Supreme Court decision that legalized those unions nationally remains in effect, that’s a nonissue for these purposes. Now Cato focuses mostly on cousin marriages, which are outlawed in Texas, at least among first cousins, half first cousins, and adopted cousins. Texas here ranks forty-fourth, which is actually last place—it shares that ranking with six other states that also discriminate against cousin lovers.
Actually, this doesn’t factor into Cato’s analysis at all.
While this issue doesn’t weigh heavily in any state’s ranking in the index, Cato does partially consider the freedoms of drivers. Texas, which restricts texting while driving, requires the wearing of seat belts, uses cameras to read license plates on toll roads, and mandates that motorcyclists wear helmets, is at the bottom of the list on this category as well.
Notably, “travel freedom” does not, in Cato’s estimation, include the freedom to travel for the purpose of taking an action that’s legal in one jurisdiction but illegal in another. Some cities in the Lone Star State have begun testing that proposition by restricting travel for Texans who pass through to seek abortions. While most legal scholars consider such restrictions a violation of the commerce clause of the U.S. Constitution, theoretically, similar laws could be created that would ban Texans who wanted to, say, drive to Las Vegas to gamble. (What happens in Vegas stays in Lubbock!) At that point, perhaps, the Cato Institute will take notice.