If the Texas Windstorm Insurance Association had thought its 2021 battles with legislators ended on May 31 when the legislature adjourned sine die, it was mistaken.
An “information request for legislative purposes” from Rep. Mayes Middleton, R-Wallisville, 11 days before the session ended sought multiple documents from TWIA that related to legislation pending during the legislative session. Middleton requested “all written communication, including emails, text messages and other written correspondence relating to any pending legislation pertaining to TWIA from Jan. 12 to May 19, 2021.”
He also requested all scheduling records for face-to-face meetings, virtual meetings phone calls and conference calls between any TWIA employee and any State Senators and Senate staff during the session that was drawing to a close.
It has taken TWIA several weeks to collect and deliver the information requested, with the last items to be delivered by the end of August. A spokesperson for TWIA said the responsive material has been provided in batches to Middleton through an online file sharing service.
Unlike public record requests, legislative information requests are not reviewed by an agency for redactions, said the TWIA spokesperson.
The legislative purpose for the information gleaned from the volume of documents provided became an alleged evidence trail in an Attorney General Opinion request, not from Middleton, but from Rep. Briscoe Cain, R-Baytown, a fellow coastal lawmaker. The A.G. Opinion Committee date stamped the opinion request as received in the early afternoon of July 30.
Cain’s request for Attorney General Ken Paxton’s opinion centers on how TWIA staff may have influenced Middleton’s HB 769, in particular the provision that would have required TWIA’s headquarters to be moved from Austin to a Tier I or II county. The goal of the opinion request is to get the attorney general’s opinion on if state appropriated money was used to attempt to influence the passage or defeat of a legislative measure, a prohibition passed into state law in 1997.
Cain’s request takes a two pronged approach. First, can TWIA be deemed a state agency that receives appropriated state funds? Second, did TWIA staff violate the anti-lobbying state law by meeting with legislative staff on HB 769?
By statute, appropriated funds is defined as money appropriated through the General Appropriations Act or other law. Cain readily admits that TWIA receives no funds through the General Appropriations Act. Instead, his opinion request relies on “other law.” Cain uses withdrawals from the Catastrophe Reserve Trust Fund as the statutory link to state funds, since withdrawals and other TWIA activities are subject to oversight by a state agency, the Texas Department of Insurance. Cain’s letter alleges that the moneys deposited in the CRTF become state funds.
Cain bases his argument that TWIA employees lobbied against relocating the headquarters by the use of the words “discuss concerns” on meeting records found in the trove of records Middleton obtained from TWIA. Cain draws a grave distinction between legally authorized communications of “providing public information” and “discuss concerns.” He says that the plain meaning of concern “impute(s) an interest on behalf of the person who possesses the concern.” He reasons that the concern is personal to TWIA staff resisting the move when the agency has an obligation to policyholders who would have benefited from approximately $1 million per year reduced expenses by moving from a high office rent area to a significantly lower one.
Cain’s opinion request said he found discussions in email records regarding “the potential for employee turnover due to the move…” to be self-serving on the part of TWIA staff. He opined that the staff resistance to the move defeated a part of HB 769 “to the detriment to policyholders.”
TWIA regularly reports its communications with legislators and legislative staff to the TWIA board. The logs presented to the board for January through May use “provide information” exclusively, including three entries for TWIA staffers meeting with a member of Middleton’s staff in April to discuss a TWIA memo or “provide information” about the relocation provision in HB 769.
Despite the expectation that documents obtained from an agency in response to a legislative information request remain for the eyes of the lawmakers only, one email between two TWIA staffers, presumably obtained through Middleton’s legislative information request, ended up in an Aug. 7 Twitter exchange between the two lawmakers.
In the email, one TWIA staffer observed to another TWIA staffer optimistically that HB 769 might not get a Senate hearing. Along with the image of the email, Cain tweeted, “Did a legislative affairs employee for the Texas Windstorm Insurance Association violate Texas lobbying laws?”
Middleton retweeted Cain’s tweet, along with commenting, “TWIA lobbied against my pro-ratepayer Bill this session. Among other provisions, TWIA employees self servingly opposed moving their HQ from Austin to the Gulf Coast, which also would have saved ratepayers nearly $1,000,000 a year.”
Both Cain and Middleton spoke against any rate increase on TWIA policyholders during the TWIA board meeting on Aug. 3. During their remarks, both mentioned the recent filing of the A.G. Opinion request, with Cain informing the board that he had filed the request.
At the Aug. 3 TWIA board meeting, Middleton expressed his strong displeasure with TWIA on resisting the move to a coastal county. He spoke briefly about the content of Cain’s A.G. Opinion request. “As we know, state owned entities are prohibited from lobbying or directly or indirectly attempting to influence the outcome of legislation. I believe TWIA may have broken the law on the provision that would have forced the headquarters to move from Austin to the Gulf Coast. This raises some serious questions and we need to wait on that AG opinion as well because that goes to the heart of TWIA’s governance.”
Cain called it “very shameful” that TWIA staff worked against several legislative measures that were aimed at reducing TWIA’s administrative costs to provide some relief for policyholders.
The Attorney General accepts briefs from interested parties on pending opinion requests for 20 days, and the A.G.’s staff reported that responses to opinion requests must be delivered in 180 days.
In his opinion request Cain states that the House-passed version of HB 769 was introduced in the Senate without the provision of the bill that would have moved TWIA’s headquarters to the coast. Indeed, HB 769, which was heard by the Senate Committee on Jurisprudence on May 20, was handled by bill sponsor Sen. Larry Taylor, R-Galveston. Taylor offered a substitute bill to the committee that did not include the headquarters move. Taylor did not discuss with the committee any parts of the House-passed version of HB 769 that were not included in the sponsor’s substitute and promised industry representatives that none of the removed provisions would be added in a conference committee.
Online records for the history and text of HB 769 show that the engrossed version of the bill was reported by the House and received by the Senate on May 3. It was read for the first time in the Senate on May 13 and went through two committee referrals, neither being the Senate committee that usually hears insurance matters. It was heard by the Natural Resources and Economic Development Committee on May 20. The Senate Business and Commerce Committee had completed meetings to receive public comments on House bills on May 4, reserving its remaining business for Senate instruments. Rules were suspended to move HB 769 quickly through committee and the full Senate. It passed the full Senate on May 25. The Senate printed analysis posted online on May 27 has a section-by-section analysis that indicates which parts of the House bill had no equivalent provision in the Senate substitute.
On May 28, when HB 769 returned to the House, Middleton initially rejected the Senate changes to the bill and requested a conference committee. House conferees were appointed that day, but the Senate did not appoint a conference committee. With only three session days remaining, on May 29, Middleton moved to discharge the conference committee to keep the remaining provisions of the legislation alive. He then moved concurrence in Senate amendments, even though the headquarters relocation was absent from the legislation.