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St. Mary's Law Journal

Abstract

The current Texas Constitution was adopted in 1876 and was written after the Civil War and the Reconstruction Period when Federal troops occupied the State. The general perception is that the Federal troops used the Governor, in essence, to impose a form of dictatorship over the people. It was clearly the intent of the new constitution’s framers to create a very weak governor form of government in order to spread its powers to many independently elected officials. It provided that the state officers who were appointed by the Governor and approved by the Senate were semi-independent from the Governor by having set terms and they could only be removed for cause during their term by trial dictated by the Legislature or the approval of 2/3s of the Senate. During the 19th and 20th Centuries, the framers’ intent was fulfilled by what many called “a do-nothing officer” whose election was similar to a beauty pageant.

However, things changed during the 21st Century with the long-time service of Governor Perry who demanded strict loyalty of his officers and due to his many re-elections, guaranteed he would appoint all state officers and be there when their terms expired. Yet, his successor, Governor Greg Abbott has imposed significant structural changes of questionable constitutionality that has caused his office to have new, significant powers not exercised by prior governors under our current constitution.

In June of 2018, the Chief of Staff of Governor Abbott sent a letter “clarifying” the rulemaking process by stating all new rules of all regulatory agencies must be evaluated by the Governor’s office and presumably “approved” before the agency could commence notice and comment rulemaking. It is the opinion of the Governor’s office that this may be done totally in secret and the office has refused to say who is cooperating, what type of review is done, does the Governor say yes, no or modify and most importantly, do the agency officials follows his order. This paper explores whether the Governor has the power to demand and perform this review function from a constitutional and statutory basis related to the Administrative Procedure Act (APA). There is literally a total lack of case law on the governor’s delegated power “to take care the laws be faithfully executed.” The APA is wholly silent as to the involvement of the Governor in rulemaking. This paper asserts that the Governor can request such involvement in rulemaking, but the state officers can also refuse. More importantly, there is a strong argument the Legislature has impliedly prohibited this action or could expressly do so.

An equally powerful assertion of power by Governor Abbott is a practice that other governors may have engaged in but there is a total lack of proof. It is the position of the Governor’s office that when an appointed officer’s term expires, he/she may remain in office if the Governor has not appointed someone else and thereby, some have remained in office for as long as 13 years. This paper analyzes the appropriate provisions in the constitution and establishes that this practice is a gross distortion of the meaning of the provisions and is clearly unconstitutional. To allow state officers to manage state agencies while serving at the discretion of the Governor vests an enormous power in the Governor to directly control state agencies and their power which is the antithesis of the framer’s intent.

First Page

263

Last Page

283

Date Created

5-2021

Publisher

St. Mary's University School of Law

Editor

Melissa Fullmer

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