As 4th Special Session Wraps, Retired Educator COLA Faces Legal Challenges

Image reads: News from the special 88th legislative session

This week, the fourth special session called by Gov. Greg Abbott came to a close without a single education bill passed — including Abbott’s private school voucher scheme. At least for the time being, it seems that Abbott does not intend to call another special session, and instead intends to take his thus far unsuccessful and unpopular campaign for private school vouchers to Republican primary voters (more on that later).

This historic victory over vouchers, however, was overshadowed this week by court challenges that threatened to jeopardize the results of the Nov. 7 constitutional amendments election. These challenges jeopardized all 13 constitutional amendments approved by voters, including Proposition 9, which would provide retired educators with their first pension cost-of-living adjustment (COLA) in nearly two decades. 

Constitutional Amendment Election Challenges

After a week of indirect communication from the governor about the status of several baseless legal challenges to the results of the Nov. 7 constitutional election, it appears as though the challenges have been rendered moot, and implementation of all 13 amendments will proceed as previously planned. Though neither the offices of the governor, nor the secretary of state, nor the attorney general have publicly released information about the election challenges, news outlets are reporting that the governor seemingly has outmaneuvered these lawsuits, allowing the will of the voters to be implemented. Additionally, at its quarterly meeting this week, the Teacher Retirement System of Texas board approved a resolution that directed staff to prepare for the distribution of the COLA in January.

All of this information indicates that the COLA included in Proposition 9 will be implemented as previously planned, despite these lawsuits, but a court ruling could reverse this.

On Friday Dec. 1, it was reported that the results of the election had been baselessly challenged. The plaintiffs, a group of right-wing activists and repeated election deniers, alleged that Texas’ voting equipment is uncertified and that voting machines were connected to the internet. Both of these claims have been proven false in previous legal cases brought by this same group of plaintiffs, but the fact that the results faced a challenge threatened to delay the implementation of the propositions.

Abbott could have avoided these legal challenges by canvassing and certifying the results of the election immediately. Delaying the certification allowed election deniers an opportunity to challenge the results. Abbott was then prohibited from certifying the election results while there was an active challenge to them. The Legislature also could have avoided an election and these legal challenges if lawmakers had simply included the COLA in the state budget as Texas AFT had advocated throughout the regular session this spring and not as a separate constitutional amendment required to first receive voter approval. 

In response to these election challenges, Texas AFT president Zeph Capo released a statement denouncing the election deniers and chastising state leaders who emboldened them by entertaining their conspiracy theories and changing state law to respond to those theories. 

As the Senate was currently in session on Dec. 1, senators quickly filed, heard in committee, and passed Senate Bill 6, which would retroactively rewrite the Texas Election Code. The bill would have significantly expedited the timeline for election challenges to be resolved, amending a new and untested section of the code that set a roughly year-long timeline for election challenges to be heard. The shortened timeline proposed by SB 6 would have significantly expedited the appeals process.. It is also unclear whether or not it is legal to retroactively amend the election code; taking that action likely would result in another lawsuit, which could have further delayed the implementation of the 13 propositions that passed on Nov. 7. 

Likely because of these concerns and with the end of session quickly approaching, the House did not consider SB 6. The special session ended on Tuesday, Dec. 5, with no legislation passed related to this election challenge.

That same day, it was reported that Secretary of State Jane Nelson filed a plea to jurisdiction which, if accepted, would result in the election challenge being dismissed due to the court not having proper jurisdiction.. The plea suggests that the election challenge, submitted on Nov. 20, was not properly filed by the plaintiffs. Because the election challenge was not properly filed, Nelson alleges the governor properly canvassed and certified the election results on Monday, Dec. 4. Nelson explained that as soon as the election was certified by Abbott, the propositions that voters passed became a part of the Texas Constitution, which renders legal challenges moot.

It is unclear whether or not this strategy will prove successful, but it seems, for now, that the governor has successfully sidestepped this legal challenge. 

To explain the legal challenges to this election, Texas AFT is hosting a virtual meeting next Monday, December 11 at 6 PM. We will be joined by the Vice-Chair of the Texas House Elections Committee Rep. John Bucy (D-Austin) and Common Cause Texas Voting Rights Program Manager Katya Ehresman. Register online to receive the Zoom link. 

As it stands, the COLA is slated to apply to pension checks for over 400,000 retirees. Those checks will hit retirees’ bank accounts at the end of January. Due to the passage of Proposition 9, the total pension payments made to Texas retirees will increase by roughly $30 million each month, with the average eligible retiree seeing a roughly $80 increase in their monthly pension. TRS expects notification letters to be sent to qualified retirees next week.

For more information on the fight for and structure of the COLA included in Proposition 9, check out a previous edition of the Hotline.

Session Ends, Primary Election Season Begins

While Abbott has been tight-lipped when it comes to the recent election challenges, he has continued his public tantrum over his failure to pass taxpayer-funded private school voucher schemes. Three weeks ago, as previously reported in the Hotline, members of the Texas House voted overwhelmingly, 84-63, to reject the governor’s voucher scheme. All 63 House Democrats present voted against vouchers. They were joined by 21 Republicans, roughly a quarter of the Republican caucus.

These 21 Republicans have been targeted by the governor in the wake of the vote. Shortly after that Nov. 17 voucher vote, Abbott announced that he would be endorsing the reelection campaigns of the 58 House Republicans who voted in favor of his voucher scheme. Since then, Abbott has announced the endorsement of several Republican primary challengers to the 16 anti-voucher, pro-public education Republicans who are running for reelection.

One of those 16 Republican incumbents that Abbott has endorsed against, Rep. Hugh Shine (R-Temple), responded to Abbott’s attacks stating, “This is our community, and we will elect a representative. The governor will not elect the representative of this district.” 

Abbott’s primary push for his voucher scheme has brought him to support candidates who have been previously critical of Abbott’s leadership and supported challengers to Abbott in the 2022 Republican primary. Mike Olcott, a pro-voucher challenger to Rep. Glenn Rogers (R-Graford), has received Abbott’s endorsement, even though he previously donated nearly $30,000 to Abbott’s primary opponents in 2022. Brent Money, a pro-voucher candidate running in a special election, has received Abbott’s endorsement despite previously calling Abbott “weak and spineless” during the 2022 primary. 

The final date for candidates to file for the 2024 election cycle is next Monday, Dec. 11. So far, the vast majority of the 16 anti-voucher Republicans running for reelection are facing primary challengers.