Editor's note: This story has been updated throughout.
The director of the LBB said the governor’s veto proclamation, listing line items he chose to excise from the new budget, doesn’t have the effect Abbott apparently intended.
“The Proclamation from June 20, 2015 seeks to veto the appropriation for a number of purposes and programs contained in House Bill 1,” LBB Director Ursula Parks wrote. “However, in nearly all instances the Proclamation does not veto the actual appropriation but rather seeks either to veto non-appropriating rider language or informational items. As it is the case that the Governor may only veto items of appropriation, for the reasons outlined below I believe that many of the items in HB 1 referenced in the Proclamation remain valid provisions.”
That letter amounts to a rebuke of sorts from the leaders of the Legislature to the new governor. The LBB is co-chaired by Lt. Gov. Dan Patrick and House Speaker Joe Straus, and its members include the chairs of the House Appropriations and Senate Finance committees who write the budget, along with six other legislative leaders from both chambers.
“In our analysis, most of the actions in the Proclamation have the effect neither of actually reducing agency or institution appropriations, nor indeed of eliminating legislative direction on the use of funds,” Parks wrote. “The Proclamation seeks to go beyond what is authorized in the Texas Constitution, is in many respects unprecedented, and is contrary to both practice and expectation since adoption of the Texas Constitution in 1876.”
Abbott’s office received the letter Tuesday afternoon and did not have an immediate comment, but argued in a memo last month that the governor's vetoes were within the law. Lauren Willis, a spokeswoman for Hegar, said the comptroller's office is still reviewing the LBB letter.
It says, in effect, that the governor vetoed items in the budget that he doesn't have the power to veto, an assertion Parks sourced back to Abbott himself. In his proposed budget earlier this year, Abbott said that he wanted to expand the governor's line-item veto authority and suggested amending the state constitution to take care of that. The Legislature made no such amendment.
“The implication in this statement supports the analysis that the Constitution currently provides limited and specific authority in this area; authority that the Proclamation seeks to extend,” Parks wrote.
At issue are budget "riders" — directions to state agencies that are included in the budget but that do not actually make any appropriations. The LBB cited a 1975 opinion from the Texas Supreme Court that said governors have the power to veto appropriations, but not riders. And it cited an opinion from the Texas attorney general that recalled that court decision and that concluded that a particular rider was not an appropriation. Abbott was the AG at the time.
“Appropriations may be made by the Legislature and may also be vetoed by the Governor; the power of the veto is to prohibit a withdrawal of funds from the Treasury,” Parks wrote. “It does not extend to vetoing the Legislature’s intent and direction.”
The LBB questioned specific Abbott vetoes that included riders for the state Commission on the Arts, Commission on State Emergency Communications, the Facilities Commission, the Department of State Health Services, the Texas Education Agency, Institutions of Higher Education, Water Development Board and the Securities Board.
For instance, Abbott's veto of the Facilities Commission rider would kill building projects for the Department of Motor Vehicles and a replacement for the G.J. Sutton State Office Building in San Antonio. The rider he vetoed for the education agency is for an unspecified amount of dues to be paid to the Southern Regional Education Board.
The governor's office argued in an informal June memo that his vetoes were well within the bounds of that Supreme Court decision and said the Legislature cannot conjure language to protect its spending plans from his consideration. "It does not matter whether the Legislature used magic words to label an item of appropriation a 'rider,' a 'goal,' a 'strategy,' or anything else," they wrote.
"The Legislature cannot simultaneously claim that it required agencies to use specific sums for specific purposes, but that magic words like 'rider' or 'capital budget' nonetheless insulate the item of appropriation from a veto," they wrote.