Tag: recess appointments

Institutionally Weak

The Texas governor’s formal powers include constitutional powers (powers granted to the governor by the Texas Constitution of 1876) and statutory powers (powers granted to the governor through laws passed by the Texas Legislature).  These powers can be divided into three categories: executive powers, legislative powers, and judicial powers.

Thad Beyle developed a 5-point scale used to rank the power of state governors, focusing predominantly on formal powers (0 = extremely weak; 5 = extremely strong).  Beyle ranked Texas’s governor as a 2.8 / 5.0.  This low score reflects the limitations placed on our governor’s formal powers by the Texas Constitution of 1876.

Appointment & Removal

A governor’s appointment power, or the power to select who will occupy key positions within the bureaucracy (usually subject to confirmation from one or both chambers of the legislature), is central to a governor’s effectiveness in working with the state bureaucracy to administer laws.

The Texas Constitution’s creation of an independently elected plural executive significantly limited the governor’s appointment powers.  As the Texas legislature has created new boards, commissions, and agencies within the executive branch, they have slowly expanded the governor’s appointment powers.  “During a four-year term, the Governor will make about 1,500 appointments”, including appointing the Secretary of State and executive officials that oversee various state agencies and departments (Office of the Texas Governor, n.d.).  Most of these appointments are made on the basis of political philosophy, loyalty, and patronage.

Gubernatorial appointments must be approved by a two-thirds vote of the Texas Senate; however, because our legislature does not meet full-time, situations may arise between regular legislative sessions that require the governor to make a recess appointment.  Recess appointees assume responsibility for the executive office until the next regular legislative session convenes; once the regular session begins, the Texas Senate has ten days to vote on whether to approve the recess appointment.

The governor’s appointment power is limited by the fact that most of the appointed offices have staggered six-year terms, meaning the governor can appoint 1/3 of these executive officers every two years (or 2/3 in one four-year term).  However, as Rick Perry demonstrated, governors can work around this limitation and use their appointment power to grow the office’s political influence by being reelected to more than one consecutive term:

After six years of Perry being in the governor’s office, virtually every appointee had him to thank for their post. And over his first decade in office, the governor seeded the executive branch with his former aides and their like-minded peers . . . turning what was designed as a weak office into a strong one. (Ramsey, 2013)

There is also an informal limit on the governor’s appointment power known as senatorial courtesy, which is the informal requirement that a gubernatorial appointee has the approval of his or her own state senator in order to obtain support within the Texas Senate.

A governor’s removal power limits an appointee’s ability to exercise autonomy and helps to promote accountability to the governor’s policy agenda.  In Texas, the governor’s removal powers are limited – the governor may only remove his or her appointees, and doing so requires the consent of two-thirds of the Texas Senate.  As Ramsey (2013) put it, appointees generally “can’t be fired — they can be made pretty uncomfortable, but that takes a lot of work — and they often behave as if they have their own brain sand their own goals and ways of doing things.”

Military Powers

Under the office’s military powers, the governor:

• appoints the Adjutant General, which is the commander and chief executive officer of the Texas Military Department
• serves as commander-in-chief of the National Guard, which includes the power to order mobilization of the National Guard in response to disasters/emergencies or for peacekeeping purposes
• may declare martial law
• may direct the Texas Rangers to take action

Emergency Powers

Our governor serves as the state’s crisis manager, with the responsibility to act as policymaker, coordinator of resources, and point person in the wake of natural or manmade disasters.  The Texas legislature has granted the governor “expansive and far-reaching power to deal with emergencies” (Lindell, 2020) through the Texas Disaster Act, which defines a disaster as:

“the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, extreme heat, cybersecurity event, other public calamity requiring emergency action, or energy emergency.”

Under this law, the governor can declare a disaster for up to thirty days (and can renew the declaration upon expiration at his or her discretion) when faced with an “imminent threat.”  The Texas legislature has the authority to cancel an emergency declaration if they are in session.

Prior to 2020, the governor’s emergency powers under the Texas Disaster Act had been primarily applied to “specific, isolated areas directly affected by severe weather”; however, in response to COVID-19, Governor Abbott issued a statewide disaster declaration that was renewed several times and, in doing so, “exercised near-unchecked authority over the state” because the legislature was not in session and, as such, did not have the ability to respond to the declaration (Johnson, 2020).  The Texas legislature responded during the 87th regular session with HB3.

Even though this was a legislative priority during the 87th regular session, the bill did not make it to the governor’s desk for action:

The House and Senate passed competing legislation to give themselves more oversight in public health disasters, but failed to hammer out a compromise by Saturday’s deadline. A big sticking point was whether to curb the governor’s authority only during future pandemics or in natural disasters too. (Morris, 2021)

State of the State Address

The Texas Constitution requires the governor to address the state legislature about the condition of the state; this address is referred to as the state of the state address.  The state of the state address occurs at the beginning of each regular legislative session and at the end of a governor’s term.  The state of the state address can be an opportunity for the governor to exert informal, political powers to influence the state’s legislative agenda.

Line-Item Veto

The governor has the power to veto specific appropriations items from bills – in other words, the governor has the ability to cut spending without having to veto the bill in full and send it back to the Texas legislature to be revised.

Recently, the line-item veto has become an area of dispute between the governor’s office and the Texas legislature.  Governor Abbott expanded the application of the line-item veto to strike descriptive riders, or provisions “inserted by the Legislature to provide direction or information to state agencies”, in the state’s budget for the 2016-2017 biennium (Fikac, 2015 opens in new window).  As with any other perceived expansion of gubernatorial powers, tensions arose between the legislature and the governor’s office: the Legislative Budget Board argued that this was an expansion of the governor’s line-item veto power and was improper because it did not actually reduce spending on those items, and Abbott responded by asserting that the LBB was trying to restrict his constitutional authority.

Budget Powers

The budgeting process in Texas is dominated by the Legislative Budget Board.  The governor is required to submit a proposed budget at the beginning of each regular legislative session; however, the Texas legislature generally ignores the Governor’s budget.  The governor may attempt to influence the budgetary process through informal powers.

Emergency Legislation

The Texas Constitution grants the governor the power to identify emergency legislation items.  Emergency legislation items are moved to the beginning of the regular legislative session and can be voted on during the first 60 days of the session.  Despite how detailed our state constitution is when it comes to government power, it fails to define what constitutes an emergency.  As such, governors have broad discretion in making this determination.  Governors can increase the chances of their legislative agenda passing the legislature by declaring their legislative priorities “emergency legislation.”

Emergency Legislation Items, 2021

The video below identifies Governor Abbott’s emergency items for the 87th regular legislative session.