As Gov. Greg Abbott leads state through COVID-19 pandemic, where is the Texas Legislature?

AUSTIN — It’s a once-in-a-century pandemic. Where is the Texas Legislature?

In the four months since COVID-19 put Texas in a state of disaster — bringing economic activity to a halt and leaving millions out of work, while cases have risen steadily — lawmakers have not met publicly.

Gov. Greg Abbott has been the face of the state’s response. The second-term governor has exerted the full force of his office, issuing executive orders to shutter nonessential businesses, suspend elective surgeries and order travelers from other states to self-quarantine.

Meanwhile, lawmakers on both sides of the aisle have complained about executive overreach, restrictions on mail-in voting or policies that left jobless Texas out in the cold. But most of the venting is on Twitter or in letters, not in a committee room, where lawmakers could hear expert testimony and provide oversight of state agencies.

Legislators say just because they aren’t in a committee room doesn’t mean they aren’t doing their jobs. The Capitol is closed to the public to stem the spread of the coronavirus. And while Zoom meetings have become the new normal for companies, procedural rules may prohibit lawmakers from meeting over the internet.

“These issues are front and center,” said Sen. Bryan Hughes, a Mineola Republican who chairs the powerful Senate State Affairs Committee. “No one should think because there hasn’t been a formal hearing that this isn’t being taken seriously.”

Still, a few legislators have started pushing for a more central role. Over the weekend, state Sen. Charles Perry, R-Lubbock, called for a special session to let the Legislature play a part in the state’s pandemic response. Rep. Trey Martinez Fischer, D-San Antonio, also has urged Abbott to engage the Legislature.

“The law does not grant the Governor of Texas unilateral authority to act without the Legislature’s involvement during a disaster declaration,” Martinez Fisher said in a statement.

Political scientists say that as coronavirus cases continue to rise and restlessness about state action kicks in, lawmakers may find voters more closely scrutinizing their response.

“It’s one thing to carp on Twitter, it’s another thing to crank the process up and conduct oversight,” said Jim Henson, director of the Texas Politics Project at the University of Texas. “It’s a fair question to ask how much oversight is coming out of the sporadic political criticism that we’re hearing of the governor from all sides?”

‘The Capitol is closed’

Part of the challenge is how to exercise that oversight. Lawmakers do not return for another legislative session until January because the Legislature meets only once every two years. Abbott has all but ruled out a special session. His office did not respond to a request for comment.

Lawmakers can hold oversight meetings in between sessions, but they have nowhere to meet.

“The Capitol is closed,” said State Rep. Charlie Geren, R-Fort Worth. “Members can get in the building, but we can’t hold hearings without them being open to the public.”

The State Preservation Board closed the Capitol in March to slow the virus’ spread. Opening the building would require a vote by the board, and Abbott is the only one who can call a meeting.

That’s just the first challenge. Lawmakers are concerned about how easily their colleagues, staffers and the general public could be infected if they began holding public hearings.

Ten Department of Public Safety troopers stationed at the Capitol tested positive for COVID-19 last month. Weeks earlier, executives from the Department of Family and Protective Services were forced to work from home after coming into contact with an employee who tested positive. Several lawmakers have also had family members infected with the disease.

But legislators are adapting. Last month, plexiglass dividers were installed at some desks on the Texas House floor, and three committee rooms were being outfitted with barriers to keep lawmakers separate from the public giving testimony.

Geren, who heads the House Administration Committee, said lawmakers are trying to devise ways to incorporate video conference technology into their meetings, but it is unclear if that’s allowed under House rules.

Since April, senators have been working behind the scenes in groups Lt. Gov. Dan Patrick formed to address the pandemic’s effect on healthcare, education, the economy and other topics. Their discussions have not been public.

There is precedent for virtual hearings. Some committees have taken invited testimony over Skype and other video conference technology, Hughes said.

Other legislative bodies have found ways to meet. The Minnesota Legislature met in person last month in a special session to tackle police reform after the death of George Floyd in Minneapolis. Congress has held a mix of in-person and virtual hearings.

No ‘unilateral authority’ for governor

In Texas’ weak-governor system, the Legislature is designed to be the main political player and provide a strong check to the governor’s power. But in recent decades, a string of governors has tilted the balance.

“It’s hard not to look at this as another instance in which the Legislature, to some degree, has lost ground to a series of aggressive builders of executive power in the governor’s office,” Henson said. The pandemic and the near complete authority it has thrust into the hands of Abbott have highlighted the imbalance in the separation of power.

When the Health and Human Services Commission awarded a $295 million contact tracing contract to a small Frisco company, lawmakers on both sides of the aisle raised concerns.

But so far, none of those critics has called for legislative hearings.

Mark Jones, a political scientist at Rice University, said there’s little incentive for Republicans who control both chambers of the Legislature to dig for answers that could reflect poorly on them during a crucial election year.

It’s unclear why Democrats, who hold considerable sway in the Texas House and are aiming to flip the chamber for the first time in decades, have not done so.

“One answer would be they don’t see much that can be gained politically,” he said. “The second is, it’s not worth their time.”

House Democrats control committees that oversee the Health and Human Services Committee and the Texas Workforce Commission, two state agencies whose responsibilities have been heightened during the pandemic.

But neither of those Democratic lawmakers, Martinez Fischer and Senfronia Thompson of Houston, have called for oversight hearings.

Martinez Fischer publicly criticized the state’s unemployment agency in June for not consulting with lawmakers when it decided to reinstate work search requirements for unemployment recipients, even though the agency’s leaders had promised to do so.

The decision was reversed when coronavirus cases began to spike, but Martinez Fischer requested an expansive list of documents to shed light on how the agency came to its decision.

“Oversight is in the rearview mirror. What we’re asking for is to have active engagement … to make sure things are happening and people are held to account when they’re not,” he added. “Yes, oversight’s important and we have it and we don’t need permission to exercise it, but it is not worth much if the agency feels like they answer only to the governor.”

That kind of engagement could provide answers to other outstanding public questions about the state’s actions.

Last month, a laboratory turned up false positives while running state-ordered tests at nursing homes. Two weeks after those false positives, the state health department approved the company to continue its work without telling the public how many false positives the state had found or what it had done to resolve the issue.

Thompson, who heads the House Public Health Committee, said she spoke to the department’s commissioner, Dr. John Hellerstedt, and asked for more information. Thompson, who is Black, said she had also sought information about the pandemic’s impact on minorities but had not received an answer.

“I’m not making no excuses. But we were the only ones this year who held a meeting on March 10th,” she said. “We had the first, last and only public hearing [on this].”

Powerful Republicans have also expressed their dissatisfaction. Rep. James Frank, R-Wichita Falls, has publicly criticized the negative effects of the state’s policies on nursing homes during the pandemic.

Frank, who chairs the House Human Services Committee, said he would like to have hearings “as soon as possible,” but logistics are the biggest hurdle.

“Make no mistake, there is a tremendous amount of discussion going on between members and the governor’s office,” he said.

Legislature’s ‘track record’ cause for concern

Legislative hearings could also give the public clarity about voting during the pandemic. Many voters say they are unclear whether they are allowed to vote by mail in the state’s primary runoffs after the Texas Supreme Court’s vague ruling on the issue in May.

“Right now that’s all we’ve got,” said State Rep. Stephanie Klick, R- Fort Worth, who leads the House Elections Committee. “The U.S. Supreme Court is going to weigh in on some of these questions as well.”

Tommy Buser-Clancy, a senior staff attorney at the ACLU of Texas, said the committee could help provide clarity, but it shouldn’t have to. That responsibility lies with Secretary of State Ruth R. Hughs, Texas’ top elections official, who is appointed by Abbott.

“There’s been an absence of leadership,” he said.

Hughs has remained quiet after the Texas Supreme Court’s decision, he said, even after Attorney General Ken Paxton raised the threat of prosecution.

Through a hearing, lawmakers could at least provide “peace of mind” to people that they wouldn’t be prosecuted by Paxton if they were among groups considered at high risk for COVID-19 complications.

But the Legislature also faces another hurdle: Texas’ deep-rooted distrust of politicians.

Mimi Marziani, president of the Texas Civil Rights Project, said the Legislature’s track record on gerrymandering and enacting voter ID laws makes her group uneasy about calling on them for help on voting issues.

“We get very nervous about the Legislature fiddling with voting laws,” she said. “The reason is because they have a really bad track record.”

Henson said the pandemic was exposing another possible weakness in the state’s governing system.

“The Texas system is meant to be slow to respond, and we’re seeing that now,” Henson said.