Is the sun setting on the Texas sunset law?

• Author: McNeely, Dave
• Position: Includes related article

Texas legislators are of two minds when they ponder the usefulness of sunset reviews of state agencies.

In 1993, while the Texas Performance Review of state agencies was drawing enough attention to inspire the Clinton administration to undertake a National Performance Review, powerful state officials were also trying to do away with the state's sunset law.

That's right. Several of the officials who had rammed through a process to institutionalize a blitzkrieg assault on waste and inefficiency in state agencies had arrived at the same conclusion legislators in several other states had - that the sunset law, originally designed to do something similar, had evolved from being a solution into being the kind of problem it had been created to solve.

Senator O.H. "Ike" Harris, a Dallas Republican who is the Texas Senate's longest-tenured member, introduced legislation that would do away with the Sunset Advisory Commission. "In some respects, it's outlived its usefulness," said Harris, who voted against sunset when it was established in 1977, but who has served twice on the advisory commission since.

Interestingly, Harris was joined in that opinion not just by Lieutenant Governor Bob Bullock and new House Speaker Pete Laney, but also by the reform-minded Governor Ann Richards. A few weeks before the end of May when Texas' regular 140-day biennial legislative session was to end, sunset's days looked numbered.

20 Years of Sunset

Sunset in Texas was set up during the fervor that swept many states in the late 1970s to open up government agencies and have them re-examined every few years to see if they were still performing the functions for which they had been created. Colorado, Florida and Alabama passed the first sunset laws in 1976. Texas and 21 other states followed suit in 1977. Eventually, a total of 36 states passed broad sunset statutes.

The 10-member Texas Sunset Advisory Commission is composed of four senators named by the lieutenant governor, four House members named by the speaker, and two citizen members, one appointed by the lieutenant governor and one by the speaker. The legislators serve overlapping four-year terms, so that two senators and two House members are appointed every two years. The citizen members serve two-year terms. The lieutenant governor and speaker alternate every two years in naming the commission's chair and vice-chair.

Open Season on Agencies

In Texas, it was decreed that every state agency would be up for sunset once every 12 years. The agencies under scrutiny would have to get an affirmative vote from the House and Senate, and the acquiescence of the governor, in order to continue in existence. Without the affirmation by the Legislature and governor, the agency would cease to exist and would be given one fiscal year to terminate its activities.

That reverses the normal flow of the legislative process, since it's much easier to kill something in the Legislature than to pass it. Agencies and the lobby groups that seem to take them over in many cases can stymie efforts to clean them up. But the sunset process gives their enemies and critics open season to discuss any issues that normally could be bottled up in committees.

In Texas, as in most other states, a couple of dozen mostly minor agencies were terminated, many of them in the early years of the process. Nationwide from 1976 to 1989 about 13 percent of all agencies reviewed were terminated, according to NCSL - about the same percentage as in Texas.

In Texas, Richards became perturbed at the process during her efforts to streamline and clean up the state's insurance oversight agency. As it happened, the agency came up for sunset review in 1993. Her appointees to the oversight board, however, complained to her that much of their staff time and energy was taken up providing information to the Sunset Advisory Commission. And lobbyists were busy trying to use sunset to undo some of Richards' efforts to change the insurance board's operation.

She complained that the sunset process had become "a fiasco" and "the lobbyists' full-employment act." Representative Libby Linebarger, a Democrat who co-sponsored the sunset abolition bill in the House, said she "never saw so many alligator shoes and $600 suits as when some agency is up for sunset review."

Senator Harris said the sunset commission had gone beyond simply deciding whether an agency should continue in existence; instead it had become involved in substantive policy issues.

Because a positive vote of the Legislature is needed to continue an agency, sunset bills are often loaded up with substantive issues - like whether telephone companies should be deregulated, which came up during the review of the Public Utility Commission. That battle - between...