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The law and the Early To Rise petition process

Much has been made about the obscurity of the state law that allows for the petition process that the Early To Rise folks have followed to put an item on the ballot that would raise money for pre-K education in Harris County. The Chron takes a closer look at the statutes in question and the requests for clarification on them from the Attorney General.

When the campaign first launched earlier this summer, Emmett said he believed the law was not applicable because it no longer was on the books, saying the state “didn’t recodify these sections and you can’t find these anywhere in state statutes today.”

The state law stipulating the petition process – two sections of the Texas Education Code, specifically – was repealed in 1995 when the Legislature reorganized the education code, according to campaign and county lawyers.

The law, which dates to the 1920s, gave county education departments in the state authority to levy a so-called “equalization tax” to raise revenue for “the support of the public schools of the county.” Unlike school districts, whose governing bodies can raise taxes by a vote, the equalization tax can be authorized only by an election called via citizen petition.

Under the education code, a county education department operating under those repealed sections “may continue to operate under” them, meaning those sections stipulating the petition process still apply.

That fact is conceded in two separate requests for a legal opinion sent to the state attorney general this month on the applicability of the law, one from County Attorney Vince Ryan on behalf of [County Judge Ed] Emmett and another by state Sen. Dan Patrick.

However, Patrick wrote, whether the education department could operate under those repealed laws if its tax rate is increased still is in question.

Emmett’s objections recently have come down to whether the ballot language proposed on the petitions is consistent with the repealed sections.

The petition language says the revenue generated is “to be used solely and exclusively for early childhood education purposes,” which does not appear to fit the definition of an equalization tax “to be distributed equally among all school districts” in the county.

One of the leaders of the petition group, Jonathan Day, a former city of Houston attorney, said the law does not say exactly what the ballot language must be. He also pointed to other sections of the law that stipulate broad uses for equalization tax revenue, including “for the advancement of public free schools in such counties.”

The education department is “already spending money on early childhood,” Day noted.

I’m not even going to try to guess what AG Greg Abbott will write in his opinion. I do know that county education departments used to be common in Texas, but as of today there are only two left, in Harris and Dallas, and this is undoubtedly why those statutes were modified or repealed back in 1995. It’s just a muddle, and I will say again, it will ultimately be settled in court. The story also notes that Emmett will announce his decision about whether or not to put this on the ballot on Monday, which is the deadline for making such a decision in time for the election. I presume we will have AG Abbott’s opinion by then as well, but I’m just guessing.

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  1. Paul Kubosh says:

    Am I the only one that thinks that if we have an A.G. opinion it will say “you can’t put it on the ballot”? Am I the only one that thinks there is no way this is going on the ballot? If it goes on the ballot I will vote against it but I must admit this is very interesting to me.

  2. Paul, I genuinely have no idea how Abbott will opine. That’s why it continues to be my belief that this will ultimately be settled in court. It’s just too murky.

  3. Don Whitley says:

    I won’t guess what the A.G. will actually say, but if he follows proper legal reasoning, he will say that the ballot language on the petition violates the statute because it does not substantially conform with(see the memo to the AG) the statutorily prescribed language. The statute only provides for setting a tax rate. It does not provide for tying the elected board’s hands in regard to using the acquired funds.

    I suppose they are trying to analogize this to a bond election for a particular purpose, such as the Astrodome measure. Unlike a bond election with a limited amount, this is an attempt to create a perpetual dedicated tax. The group’s heat may be in the right place, but this is a misuse of the statute to create California style initiative and referendum.

  4. […] here for more on the dispute over the law. Judge Emmett’s decision is not a surprise, though […]