Texas would bar new subsidized apartments from its poorest neighborhoods unless the local city council or county commissioners vote to let them in, under a draft rule that went before the state housing board Sept. 3.
The neighborhoods are census tracts where more than 40 percent of residents live below the poverty line — 55 percent in the border regions running from Del Rio to Brownsville and around El Paso. A Texas Dispatch analysis of current census estimates finds 212 Texas tracts that would trip the line, home to roughly 666,000 people. Harris County alone has 68.
Under the rules in force now, that poverty rate is a flag, not a wall. A developer can answer it by showing the neighborhood is improving, or by showing the project is needed to keep the state in compliance with fair-housing law, a federal conciliation agreement or a court order. The draft strikes those answers. A resolution from the city or the county becomes the only route through.
Nobody argued about the change while the public was commenting, because it was not there yet. The staff draft circulated July 14 still treated a high poverty rate as something a developer could mitigate. The version that reached the board Aug. 31 had moved it into the list of conditions that make a development flatly ineligible. The Texas Affiliation of Affordable Housing Providers, the developers’ trade group, filed a 14-point comment letter Aug. 14 that never mentions the provision; its stated top concern was “the introduction of the new ‘Achievable Affordable Rent’ construct.”
The part of the draft that hands the decision to city hall is the part federal tax authorities have told states to avoid. The Internal Revenue Service, in a 2016 revenue ruling written against a fact pattern closely resembling the Texas program of that era, said the tax code
There is a serious argument on the other side, and it comes from tenant advocates rather than from developers. Housing researchers have spent two decades documenting that the credit tends to cluster subsidized apartments in segregated, high-poverty neighborhoods, and roughly two dozen states now steer credits toward wealthier areas. Texas Housers, the state’s leading low-income housing advocacy group, wrote last year that “the research is clear that high-poverty, low-opportunity neighborhoods are harmful to tenant well-being.”
The same organization is equally on record that local approval is what keeps affordable housing out of the neighborhoods it wants to reach, calling it “a barrier due to pressure that local decision makers receive from residents who oppose affordable housing.” The draft does both things at once — it pushes development out of poor neighborhoods and makes a local vote the only exception. No Texas advocacy group has taken a public position on that combination, and none should be described as supporting or opposing the draft.
This agency has been to the Supreme Court over where it puts these apartments. Texas Department of Housing and Community Affairs v. Inclusive Communities Project, decided 5–4 in 2015, began as a suit over the agency granting too many credits in poor Black neighborhoods and too few in white suburbs. Justice Anthony Kennedy warned against reading the Fair Housing Act to put housing agencies “in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities.” The agency ultimately won on remand.
What it has not done is explain itself. No rationale appears in the 243-page draft, in either preamble, or in the write-up staff gave the board, which describes the addition in one sentence and never mentions that three existing provisions were struck to make room for it. Nor has the agency published how many tracts the line would close, or which year’s census data it would use — a live question, because a 40 percent cutoff sweeps in college neighborhoods where students are counted as poor. Brazos County, home to Texas A&M, has more qualifying tracts than Dallas.
If the board approved the draft — and no record of the Sept. 3 vote has been posted — written comment runs Sept. 18 through Oct. 9, with final board action set for Nov. 5 and the governor’s approval or rejection due by Dec. 1.