Houston’s divisive, multibillion-dollar effort to fund two decades of street and drainage improvements faces an uncertain future after the Texas Supreme Court ruled Friday that the ballot measure voters narrowly approved in 2010 obscured the nature and cost of the drainage fee at the heart of the ReBuild Houston program.
The case now returns to the trial court level, where experts say the justices’ strongly worded opinion appears to make a victory for the city unlikely. At issue was whether the ballot language made clear what voters were being asked to decide.
“The city’s semantic obfuscation is particularly egregious here, considering that the ballot proposition at issue concerned a revenue-raising measure,” Justice Eva Guzman wrote, having taken the extra step of penning a concurring opinion to accompany her colleagues’ ruling.
Though the final outcome is far from certain, the possible absence of the largest of ReBuild Houston’s four sources of revenue – the hundreds of millions of dollars Houstonians have paid through the drainage fee – would greatly undermine the city’s infrastructure repairs. As of this spring, $655 million had been spent or earmarked for new projects under ReBuild Houston, with almost 100 projects completed. That work includes 515 miles of rebuilt or repaved streets, 697 miles of ditches graded and 188 miles of storm sewers cleaned – all while paying down old debt, supporters say.
Conservative activists, however, cheered Friday’s ruling as fervently as they long have railed against the drainage fee, which they deride as a burdensome “rain tax.” The lawsuit in question concerns a related criticism: that the ballot language was misleading, making the charter amendment illegal.
Houston appellate lawyer Richard Hogan, who is not involved in the litigation, said a separate legal action would have to be launched to make the drainage fee disappear from residents’ water bills. However, after reading the Supreme Court opinion and related filings, Hogan said he would put his money on an eventual victory for the plaintiffs.
“It’s hard for me to imagine that they’re not going to win the case when it goes back,” Hogan said. “I can’t imagine that, after the Supreme Court said all this, that a trial judge in Texas would thumb his or her nose at the Supreme Court and tell them, ‘No, it wasn’t misleading.’ ”
I have a copy of the opinion here. I’m still mulling this over, but for now I have three thoughts.
1. I freely admit this may just be sour grapes on my part, but I have a hard time seeing this ruling as anything but ridiculous. I don’t know how any actual voter who didn’t spend the last six months of 2010 in a coma could have failed to understand that voting for the Renew Houston proposition meant imposing a fee on themselves. I’m struggling to not see politics at the root of this decision.
2. So far the only Mayoral campaign reactions I have seen to this have been press releases from Bill King and Ben Hall, both of which hit my mailbox on Friday, and both of which were happy about the ruling. (Mayor Parker also put out a press release, which was quoted in full in the Chron story.) I’ve looked at the Facebook pages of the other five candidates, and so far nothing. Chris Bell, Sylvester Turner, Steve Costello, Adrian Garcia, and Marty McVey – what are you waiting for?
3. There’s still a lot of legal wrangling to come, but it’s fair to say that ReBuild Houston is on life support and may not survive. If it goes down, then what if anything replaces it? I feel like I spent a lot of time back in 2010 asking Renew Houston opponents what they would do to provide more funds for flooding and drainage improvements, and I never got anything resembling a coherent answer. So I’ll ask again, with an eye especially at the Mayoral candidates. If not ReBuild Houston, then what? How do you provide more funds to do more street repairs and flood abatement? Remember, we live in a revenue cap world, so simply proposing a property tax increase (not that anyone would, I suppose) is insufficient. If you don’t propose some kind of supplemental revenue stream, then as far as I’m concerned you’re not serious about wanting to do street improvements and flood mitigation. If you do have a proposal, then I want specifics, and I want to see evidence that you’re going to fight for it. Say what you want about Steve Costello, and I’m sure he’s going to take his fair share of abuse and criticism now, but he put his money where his mouth was in 2010, and he got something passed. If the Supreme Court has taken that away, what will you do instead?