Constitutional Amendment Election: What You Need to Know

October 19, 2021

Early Voting Has Started!

On November 2, you will have the opportunity to vote on eight different constitutional amendments.  These amendments were all proposed as legislation during the 87th legislative session and vetted through the legislative process like all other bills.  However, the difference is when amending the Texas Constitution, an amendment not only has a higher threshold of passage during the legislative process but it also requires voter approval before it becomes law.  You may be surprised that some of these topics, such as judicial qualifications, require an amendment to the Texas Constitution. However, unlike most states, the Texas Constitution limits the authority of the Legislature to act in many areas.

Below you will find an analysis for each proposed amendment.  

In person early voting started yesterday and runs through Friday, October 29th.  Election day is Tuesday, November 2nd.  Please see the links below for voting times and locations near you. 

See you at the polls!!

Parker County Early Voting and Election Day Sites and Hours

Wise County Early Voting and Election Day Sites and Hours

Summary of Constitutional Amendments

Proposition 1 (HJR 143)

The constitution authorizes the Legislature to permit charitable raffles by the charitable foundations of professional sports teams. The Legislature enacted HB 975 (84R) to permit these raffles under Chapter 2004 of the Occupations Code. Examples of professional sports teams include teams in the National Basketball Association, National Football League, Major League Baseball, and the National Hockey League.

Proposition 1 would expand the definition of “professional sports team” to include an organization sanctioned by the Professional Rodeo Cowboys Association or the Women’s Professional Rodeo Association. The constitutional amendment could benefit charities associated with those rodeo associations, such as the Justin Cowboy Crisis Fund, which aids people who have been injured while participating in professional rodeo activities.

Proposition 2 (HJR 99)

Article VIII, Section 1-g(b) of the constitution authorizes incorporated cities and towns to issue bonds to finance the development of an unproductive or blighted area within the city or town and to pledge for repayment of those bonds increases in property tax revenue attributable to the development of property in the area. Proposition 2 would give counties this power as well.

The amendment would enable counties to create tax increment reinvestment zones (TIRZs) to develop an area. The additional property tax revenue attributable to improvements in the zone would be used to pay down the bonds issued. However, the proposed amendment provides that a county that issues bonds or notes for transportation improvements may not pledge for the repayment of those bonds or notes more than 65 percent of the increases in ad valorem tax revenues each year, and a county may not use proceeds from the bonds or notes to finance the construction, operation, maintenance, or acquisition of rights-of-way of a toll road.

Tax increment financing can be a useful economic development tool, and the state faces difficult decisions regarding the funding of transportation projects. However, the benefits of tax increment financing must be weighed against the ever-growing local debt problem in Texas. According to the Bond Review Board, local debt in Texas grew from $141.4 billion at the end of FY 2007 to $251.8 billion by the end of FY 2020; the latter figure represents a per capita burden of approximately $8,577 per state resident. While tax increment financing does not impose new taxes, its reliance on public financing requires tax revenue to pay down the issued bonds.

Proposition 3 (SJR 27)

Proposition 3, if approved, would amend the Texas Constitution to provide that the state or a political subdivision within the state may not adopt a rule that prohibits or limits religious services, including those conducted in churches, congregations, and places of worship in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The proposed constitutional amendment would address a real controversy in which people were prohibited from attending church and religious services during the Coronavirus lockdown. Texas fared better than other states in this regard, such as California. Indeed, California Governor Gavin Newsome fought all the way to the United States Supreme Court to keep churches closed. The Court ultimately ruled against California, but the lesson is that the right of people to attend religious services and worship as they choose must be protected.

Proposition 4 (SJR 47)

Proposition 4 would amend the eligibility requirements for justices of the Supreme Court, the Court of Criminal Appeals, and the Courts of Appeals, as well as district court judges. Under current law, these judges and justices must be (among other things) citizens of the U.S. and Texas and have been licensed to practice law, or have been a lawyer and a judge of a court of record, for a certain number of years (four years for a district court judge, and 10 years for justices of the other courts).

The proposed amendment would require all of the above justices and judges to be residents of Texas and would make the experience requirements Texas-specific; for example, a lawyer with 10 or more years of experience outside Texas would not be eligible to serve on the state Supreme Court simply by becoming licensed in Texas. Under Proposition 4, a person would not be eligible to serve as a judge or justice of the Supreme Court, the Court of Criminal Appeals, and the Courts of Appeals if his or her license to practice law had been revoked, suspended, or subject to a probated suspension. Furthermore, the bill would increase the experience requirement for district court judges from the four years immediately preceding his or her election to the eight immediately preceding years, during which period the judge’s license to practice law could not have been revoked, suspended, or subject to a probated suspension.

The Texas Commission on Judicial Selection Final Report issued a report on judicial selection in December 2020. Notably, a number of practicing attorneys who submitted comments to the commission strongly criticized the lack of experience of many judges in the state. Proposition 4 would answer this criticism in part by increasing experience requirements for district judges.

Proposition 5 (HJR 165)

The constitution empowers the Texas Commission on Judicial Conduct (the “Commission”) to investigate complaints against judges and justices and discipline them when appropriate. This discipline can include recommendations for a judge or justice to be suspended or removed from office for misconduct, such as violations of the Code of Judicial Conduct (the “Code”). Proposition 5 would amend the constitution to authorize the Commission to investigate complaints and take any other actions against candidates for judicial office in the same manner that it can with respect to judges and justices holding office.

Some of the rules in the Code, unsurprisingly, are inapplicable to non-judges, such as performing judicial duties diligently. However, an argument can be made that some of the purposes of the Code- such as upholding the Integrity and Independence of the Judiciary- could be furthered by extending the Code to apply to judicial candidates. Moreover, as the statement of background and purpose to HJR 165 points out, judges and justices do not compete on a level playing field against their competitors in judicial elections, because candidates for office are not subject to the Code.

Proposition 6 (SJR 19)

Proposition 6 proposes a constitutional amendment to establish the right of residents in long-term care facilities (nursing homes, assisted living facilities, state-supported living centers, intermediate care facilities for individuals with a developmental disability, residence providing home and community-based services) to designate an essential caregiver with whom the facility may not prohibit in-person visitation. The proposed amendment also stipulates that the Legislature by general law may provide guidelines to facilities, residences, or centers to follow in establishing visitation policies and procedures.  

Beginning in mid-March 2020, emergency state orders in response to the COVID-19 pandemic directed long-term care facilities to close their doors to visitors in an attempt to stem rising coronavirus cases and protect residents. Restrictions began to ease some in August of that year, but at that point only facilities in which there were zero cases of coronavirus allowed visitors in to see residents. This initial action was understandable, as the entire world grappled with how best to address COVID-19.

However, the prolonged isolation of these residents, many of whom did not understand why their friends and families suddenly ceased visiting, proved to be just as, if not more dangerous, than the threat of coronavirus. A number of stories over the interim have detailed the frustrations and heartbreak of families who lost loved ones in long-term care facilities while they languished alone or only visible through a window. Importantly, Proposition 6 and related legislation (SB 25, 87R) permit facilities to adopt reasonable safety protocols consistent with residents’ rights to have in-person visits with their essential caregivers.

Proposition 7 (HJR 125)

Article VIII, Section 1-b(c) of the Constitution provides that “the legislature by general law may exempt an amount not to exceed $10,000 of the market value of the residence homestead of a person who is disabled . . . and of a person 65 years of age or older” from school property taxes. The Legislature has in fact authorized this exemption by general law. Additionally, current law provides that, if a person qualifies for this exemption, his or her school property taxes are “frozen” for as long as the he or she, or his or her spouse, claims the residence as a homestead. Furthermore, if a person age 65 or older dies while the freeze is in place, his or her spouse will continue to benefit from the freeze if such surviving spouse is at least 55 years of age and continues to use the property as a homestead. 

Proposition 7 proposes a constitutional amendment that would extend the last benefit to a person who survives a disabled spouse (not just an elderly spouse, as under current law) who was eligible for the school property tax freeze, provided the surviving spouse is at least 55 and continues to use the property as a homestead.

In addition, the proposition, if approved, would also validate HB 1313 (86R). This bill was enacted into law and provides the same tax exemption that HJR 125 would; however, a constitutional resolution relating to HB 1313 was never approved. Proposition 7 corrects this oversight by requiring tax collectors who collected school district taxes for the 2020 and 2021 tax years from people who benefit from HB 1313’s relevant provisions to determine whether they collected taxes in excess of what that bill permits. If they did, they would be required to issue refunds to the surviving spouse. 

Proposition 8 (SJR 35)

The constitution authorizes the Legislature to provide by general law that the surviving spouse of a member of the U.S. armed services who was killed in action is entitled to a property tax exemption on all or a portion of his or her homestead residence, provided the surviving spouse has not remarried. Proposition 8 changes “killed in action” to “killed or fatally injured in the in the line of duty.” The amended language is broader in that it encompasses armed forces members who were killed while serving but not through combat (e.g., killed in a training accident). The resolution amends current law to better reflect the spirit behind it. If approved by the voters, Proposition 8 would require no further action on the part of the Legislature, which already passed related legislation (SB 611, 87R) the enactment of which is contingent on the approval of Proposition 8.