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Delayed Census Causes Texas Legislature to Go Back to the Future

The Texas Constitution prohibits the Legislature from passing any local or special law regulating the affairs of counties, cities, towns, wards, or school districts. Necessity being the mother of invention, when the Legislature desires to regulate, in effect, a specific county, city, town, ward, or school district, it passes a general law with bracketed applicability.

For example, a bracketed law may say “this section applies only to a municipality with a population between 34,000 and 57,000, which borders the Gulf of Mexico and within which a national observatory is located.” I previously wrote about how the 2020 US Census could change the applicability of certain statutes to certain cities, but the topic du jour is a little bit different—how the delay in the release of the 2020 US Census has upset the Legislature’s apple cart.

The Texas Legislature meets every two years, being in odd-numbered years, and the US Census is completed every decade, being in even-numbered years. Therefore, the Texas Legislature has historically convened shortly after the release of past censuses and has thus had the opportunity to review and revise any legislative brackets it deems appropriate to keep the “target” of the legislation within the bracket. However, due to the delay of the 2020 US Census caused by the COVID-19 pandemic, the 87th Legislature had to convene, and indeed adjourn, without the complete 2020 US Census data being available.

Unwilling to let its targeted political subdivisions escape from their population brackets, the 87th Legislature passed H.B. 2025; which, in effect, freezes the meaning of the term “population” for statutory purposes at the 2010 US Census figure until September 1, 2023, which is the date when legislation that will be passed by the 88th Legislature will come into effect. This means that no cities will move out of a currently applicable bracket and that no cities will move into an otherwise applicable bracket until September 1, 2023, and the bracket “goalposts” could be moved by the 88th Legislature in the meantime.

Another effect of H.B. 2025 is to modify Chapter 2058 of the Government Code, which governs recognition of the federal census in the State of Texas, in response to the delayed release of the 2020 US Census. In particular, it affords governmental entities additional time to recognize and act on a published report or count relating to a federal decennial census in the event the report or count is published late. Also, for the 2020 US Census specifically, it authorizes the Legislature to act on published reports regardless of the date of publication and authorizes the commissioner’s court of a county to act with respect to establishing or changing election precincts regardless of the date of publication.

Some home-rule cities and even a few general law cities in Texas elect some or all of the members of their governing body from single-member districts which are determined by population. It is unclear at this point what effect the delayed census results may have on the application of the Voting Rights Act and other state and federal laws to such cities that must redistrict on the basis of the 2020 US Census. One thing is fortunate; however, which is that preclearance is no longer necessary for redistricting. That makes one less thing that certain jurisdictions will have to do with the very little time they have to act after the 2020 US Census is published.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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