Sure seems a bit late in the game to be raising this possibility.
This November, Houstonians will decide whether the city should stay in a regional planning body that does not offer it proportional voting power. But City Attorney Arturo Michel warns that even with voter approval, legal roadblocks could hinder Houston’s ability to simply walk away.
The ballot measure, Proposition B, seeks to give Houston more say in the Houston-Galveston Area Council. Established in 1967, H-GAC is a 13-county planning council often in charge of doling out billions of federal and state dollars a year to its over 100 local government members.
While Houston makes up over 30% of the population covered by H-GAC, only two city officials serve on its 37-member board. To change what they consider “severe underrepresentation” of Houston and Harris County, advocates from a newly-formed grassroots group, Fair for Houston, garnered over 23,000 signatures earlier this year to put a charter amendment on the ballot.
If approved, the measure would require Houston to leave any council of governments that does not apportion votes based on population. The goal, organizers said, is to force H-GAC to give Houston and Harris County more representation. If negotiations fail, Houston will then have to exit H-GAC and lead the creation of another regional planning body.
Using departure as a bargaining tool, however, may not be as viable as organizers have hoped, according to Michel. In a recent memo to Mayor Sylvester Turner, the city attorney noted under federal law, Houston would need to obtain approval from the governor and a two-thirds majority of the region’s local government members in order to create a new planning group, which “may not be practically feasible.”
“If you want to create an organization that would compete for similar dollars, what’s the incentive for the third-party approval on that?” Michel said to the Chronicle. He added that any assumptions about the tangible impact of Proposition B’s passing are highly speculative at this point.
Alexandra Smither and Evan Choate, two Fair for Houston advocates, acknowledged the barriers but said they still see a way for the city to successfully navigate the withdrawal process. Above all, they said they believe the momentum from their advocacy work will persuade H-GAC leaders to work out a solution before Houston has to pull out.
Earlier this week, H-GAC board members voted unanimously to bring back a committee to take a renewed look at its voting structure. Chuck Wemple, the area council’s executive director, noted that this move was a direct response to the Proposition B campaign, with a primary aim to brace H-GAC for the potential aftermath should the measure be approved.
“We want to be prepared,” Wemple said to the Chronicle. “My hope is that we’ll figure out a way through it together.”
Fair for Houston advocates noted even if Houston exits the organization, it can continue to receive funding through H-GAC before forming a new regional body. But the city attorney said this belief relies on many assumptions that are simply not guaranteed.
Besides the need to secure external approvals, Michel said, there is also no rule stopping other members from voting against Houston’s interests during the interim period. Without a seat at the table, Houston will not be able to advocate for new projects or ensure its access to funds and opportunities.
“I think the fiscal impact of this is really hard to predict,” Michel said.
This would not be the first time H-GAC has reviewed its board composition. In April 2021, the board created a special committee to analyze new census data and consider adjustments to reflect population changes in different areas. At the time, however, there was not enough momentum to make any substantial changes, Wemple said.
In addition to reviving the committee to examine the larger H-GAC board, Wemple said he also intends to form a similar committee by the end of the month to evaluate the Transportation Policy Council’s voting structure.
“The board is open to the conversation and is aware that members need to have this space to have this conversation,” he said.
As you may recall, I asked about what the relevant laws were regarding the exit from a metropolitan planning organization (MPO) and the formation of a new one. It was also a point raised by former County Judge Ed Emmett in his op-ed opposing Prop B. The Chron editorial board didn’t explore the issue in its endorsement of Prop B. As the story notes, the two leading Mayoral candidates as well as a couple of City Controller candidates support Prop B.
All of which is to say, either a lot of us have been wrong about this, or at the very least haven’t been asking the right questions about it. So I asked again, sending a couple of queries to Ally Smither and Evan Choate of the Yes On Prop B campaign – they were the people I did that interview with. Here’s the correspondence:
Clarification: “Houston would need to obtain approval from the governor and a two-thirds majority of the region’s local government members in order to create a new planning group”
Houston needs a two-thirds majority vote to adjust the bylaws. If H-GAC updates its bylaws, the Governor plays no role in the process at all. The negotiations to adjust the by-laws, as Yilun mentions in the article, have already begun, which points favorably towards by-laws adjustment happening.
If Houston does pull out of H-GAC and the new MPO reforms around Houston, Houston needs governments representing at least 75% of the population; for context, this is Houston, unincorporated Harris County, and Fort Bend. This is where joint approval of those local municipalities would be matched with approval from the Governor.
Did Fair For Houston have a lawyer look into this before or during the petition process, and if so who was it and what did they say?
Yes, we did have multiple lawyers look at it both before and during the petition process. We worked with Texas Appleseed while drawing up the petition language, and consulted privately with some city and county lawyers. We have also independently and with several groups, looked at all the laws for COGs and MPOs both at a state and federal level. All the lawyers we spoke to say the same thing, that this is a precedent-setting viable path. However, because it would be precedent-setting, some of the laws surrounding MPOs specifically have not been tested in court and do not have case law around them. However, there is a plain meaning to many of the words, and the DOT has produced guidance that supports these interpretations of the law. We continue to see this as a primarily political move aimed at creating good-faith negotiations.
And two, does Fair For Houston/Yes On Prop B disagree with Michel’s conclusions?
We disagree with certain aspects of Michel’s assessment, and most particularly with the ways he frames and emphasizes certain risks. We are glad that the city is taking this seriously. However, we continue to think that because federal law is clear about the requirement for the participation of the largest city in an MPO, there is not a substantial risk of Houston losing a seat at the table. Moreover, his assessment, which seems to be focused on enumerating what he sees as potential risks, does not speak to the political opportunity of solving this through negotiations, nor weigh these risks against the substantial harms produced under the status quo.
The clarification was their input, I didn’t specifically ask about that. At this point, I trust that this campaign has done its homework, and I will need to see something specific to consider otherwise. It is also worth noting that H-GAC is already prepping for negotiations over its governing structure, which is the point of Prop B. It’s certainly worth weighing the potential downsides of this proposal. But don’t overlook the upside when you do.