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Costello opposes exempting the churches

From the inbox:

Houston City Council Member Stephen Costello asks the Mayor and Council to exempt only state-mandated property from the drainage fee.

Costello, the At Large Position 1 Council Member, offered an amendment Wednesday to the Municipal Drainage Utility ordinance that would limit exemptions to those under the state’s Local Government Code Section 552.053.

“It’s a matter of fairness,” Costello said. “It is only fair that everyone who contributes water to the system should help maintain it. If we start exempting groups, then homeowners and businesses will have to pick up the slack.

“Throughout this process, I have consistently maintained that all users of the drainage system should pay the drainage utility fee,” Costello added. “The City has the responsibility to ensure that everyone is treated fairly.”

Council will vote on the ordinance next week.

The ordinance was brought up in Council yesterday but was tagged. I greatly prefer CM Costello’s compromise to Mayor Parker’s, and now that the churches have shown themselves to be such sore winners, I like his proposal even more. My concern is that it will be a futile gesture, given that Dan Patrick’s blackmail bill has passed the Senate. (And may I just say: What the hell are Whitmire, Ellis, and Gallegos doing supporting his meddling? Get the Senate out of Houston’s business already!) But it’ll be good to get everyone on the record anyway.

One thing I hadn’t considered about Patrick’s petty little bill is that it might not pass Constitutional muster. Turns out that Sen. Ellis inquired about that with the City Attorney (would have been nice if he’d done that before teaming up with Danno, but whatever), and today he got this response, which says, in a word, No.

Article 3, § 56 of the Texas Constitution provides:

(a) The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing:
* * *
(2) regulating the affairs of counties, cities, towns, wards or school districts;

To avoid the strictures of Article 3, § 56, a population distinction as is found in this Bill “must be based on a real distinction, and must not be arbitrary or a device to give what is in substance a local or special law the form of a general law.” Bexar Co. v. Tynan, 97 S.W.2d
467, 470 (Tex. 1936). The Texas Supreme Court has opined that, in statutes classified by population, the central question is whether the population classification bears a reasonable relationship to the object sought to be accomplished. See Maple Run Mun. Utility District v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996); see also, Smith v. Decker, 312 S.W.3d 632, 635-36 (Tex. 1958); Rodriguez v. Gonzales, 227 S.W.2d 791 at 794 (Tex. 1950)(condemning law as prohibited local and special law where court determined that “[n]o valid reason can be perceived for limiting the operation of the Act to border counties”); Smith v. State, 49 S.W.2d 739, 744 (Tex. Crim. App. 1932)(striking down law as an unconstitutional local or special law because the “classification does not rest in real and substantial distinction rendering the class involved distinct [and] the basis of the classification—the population involved—has no direction relation to the purpose of the law”). The proposed Bill satisfies none of these criteria.

The Texas constitutional framers believed that restrictions on the passage of local and special bills would prevent the granting of special privileges; secure uniformity of law throughout the state; decrease the passage of courtesy bills; and encourage the legislature to devote more of its time to interests of the state at large. (Interpretive Commentary, Art. 3. § 56 Tex. Const.).

Unfortunately, this Bill fails on all four counts. On its face, the Bill grants special privileges to an entire list of entities seeking exemption from payment of drainage charges, and only for such entities in the City of Houston. By imposing those exemptions only in the City of Houston, the provisions in TLGC Chapter 552 allowing the creation of a municipal drainage utility would, in substantial measure, be uniform state-wide, except in Houston. Clearly this Bill on its face affords special privileges for selected groups by exempting them from utility payments at a time when both the State Legislature and the Houston City Council are wrestling with declining revenues. The proposed Bill is a local Bill, aimed solely at the City of Houston in direct contravention of the Texas Constitution. Not only would the Bill expand the categories of property eligible for exemption from payment of a drainage fee in Houston only, but the number of entities that would qualify and the properties that would receive exemptions in comparison to other cities is incomprehensible.

I’m not a lawyer, and certainly David Feldman has an interest in advocating the city’s position, but it’s pretty persuasive. If nothing else, it sure sounds like there will be more litigation coming if SB714 becomes law. Campos has more.

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