Sunday, August 26, 2007

Does Perry really have the power? - He says yes, but orders clash with laws that make governor weak

By CHRISTY HOPPE / The Dallas Morning News - Thursday, February 22, 2007

AUSTIN – A lot of lawyers and legislators and some judges don't think Gov. Rick Perry is as powerful as he thinks he is. And basically, they have the absence of law on their side.

In three well-publicized executive orders, Mr. Perry has directed 65 percent of school districts' spending into the classroom, faster consideration of coal plant permits, and vaccinations against the cancer-causing and sexually spread human papillomavirus.

But barring a bona fide emergency, there is no language in state law that gives the governor authority to tell a state agency what to do, legal experts said. And Texas' constitution makes the governor one of the weakest in the nation.

As a result, a state district judge this week rescinded the coal plant order, a lawsuit to nullify the HPV vaccination order was filed Thursday, and lawmakers said they might craft legislation that will better define what the governor can do with executive orders. And it won't be much.

"The bottom line is that an executive order is a statement by the governor of Texas about what he thinks is in the best interest of the state. But he can't issue an order and tell that agency or hearing examiner that, 'You have to do this,' " said University of Texas law school professor Steve Bickerstaff, who has served as director of constitutional research for the Texas Legislative Council and is one of the foremost authorities on the Texas Constitution.

"Essentially, most or all executive orders are nothing more than the expression of the view of one citizen of the state," Mr. Bickerstaff said.

The governor disagrees; he argues that the Texas Constitution gives him the power by virtue of proclaiming him "the Chief Executive Officer of the State."

"People get really twisted up over process, and I understand that," said the governor's press secretary, Robert Black. "But state agencies have an awful lot of power. And it's the governor's job to provide leadership and direction for the executive branch of government.

"To ask the governor to stop directing agencies would be tantamount to asking him to stop leading."

Mr. Perry has only asked agencies to exercise their already-established powers to implement certain policies – such as adding or subtracting to the state list of required school immunizations, Mr. Black said.

"We can do that by executive order, by letter, or by a phone call to his appointees. But the governor's ability to lead this branch of government is inherent in the office," he said.

State District Judge Stephen Yelenosky disagreed. In his order signed Tuesday, the judge said it appears that the governor can't order state administrative judges to hasten hearings on coal plants.

The judge wrote in a letter to attorneys that the case presents "a pure question of law: whether the governor may constitutionally direct a hearing officer to hold a hearing and reach a decision by a particular deadline. I have concluded that ... the governor lacks that authority."

The governor's office dismissed the ruling as the musings of "a single liberal Austin judge."

But on Thursday, Dallas lawyer Kenneth Chaiken pursued much the same argument in a lawsuit filed in Austin that will attempt to nullify the governor's order to vaccinate sixth-grade girls against HPV.

The three Dallas-area families he represents object to the order and feel it subjects their daughters to a relatively untested vaccine. Mr. Perry has noted that his order allows parents to opt out of the vaccination, although many parents and lawmakers say he still went too far.

"He constitutionally and statutorily cannot do this," Mr. Chaiken said. "The notion that the governor, on a whim, can order that every teenage girl in our state has to get a vaccine is astounding."

In addition, the House's committee on public health has moved a bill that would rescind the governor's executive order, and it has 91 of the 150 House members as sponsors.

Rep. Brian McCall, R-Plano, signed on, not because a vaccine that prevents cervical cancer is a bad idea – it might be a very good one that every family should weigh, he said.

But Mr. McCall, who wrote his doctoral dissertation on gubernatorial power in Texas, said he has never seen another governor in the state's modern history try to exercise the kind of authority that Mr. Perry has.

"I'm not criticizing the governor one way or the other. But I and about 90-odd people have co-sponsored a piece of legislation saying that you didn't have the authority to do this," Mr. McCall said.

The Texas Constitution is designed to make the governor weak – drafters of the 1876 document recoiled at a strong military governor imposed by federal officials during Reconstruction. So state lawmakers can shape the governor's authority.

House Government Reform Committee Chairman Bill Callegari, R-Katy, said a bill better defining what the governor can accomplish with executive orders "needs to be discussed."

The majority of executive orders have been signed by governors to establish task forces or advisory committees to examine certain subjects.

Mr. Callegari said lawmakers have been waiting to hear from Attorney General Greg Abbott, who has been asked to address the legal parameters of executive orders.

"It's something we need to think more actively about," Mr. Callegari said.

James Blackburn Jr., the attorney who represented environmental groups and won the court order against the governor's coal plant order, said the governor is empowered to veto legislation and run his own office. Barring an emergency, there's not much else he or she can do, Mr. Blackburn said.

He said he's not surprised that other lawyers might be mounting court challenges against other executive orders by Mr. Perry.

"There are judges willing to take a hard look at these issues and do what they're supposed to do, and that is determine if one branch of government is asserting too much unilateral power," Mr. Blackburn said.

The governor is empowered to:
• Act as chief executive officer of the state
• Sign or veto bills approved by the Legislature, or allow them to become law without his signature. On budget bills, he can veto spending for specific items.
• Call the Legislature into special session to consider specific issues
• Appoint the secretary of state and members of state boards and commissions
• Fill vacancies in state and district courts and executive offices
• Commute criminal sentences and offer pardons, if the Texas Board of Pardons and Paroles recommends that the governor do so
• Act as commander in chief of state military forces
• Demand financial accounting information from managers of state institutions
• Conduct business with other states and the U.S. government
• Call elections to fill open legislative seats
Note: Does not include powers assigned in laws approved by the Legislature
SOURCE: Texas Constitution
NOTE: James Blackburn is representing the City of Frisco on the toll rates on SH121 and has recently been retained by the Highland Village Parents group in their opposition to the route for phase 4 of FM 2499.

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