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When Texas lawmakers return for a regular legislative session in January, two big things will be different: The governor will have a stronger hand in state law and policy than ever before, and the state’s financial condition will be better than expected.
Take the second bit first: Texas Comptroller Glenn Hegar revised the official estimate of how much money is available to the state, adding $2.8 billion to his previous estimate and crediting the state’s robust retail economy for the boost. That’s a partial relief to budget-writing legislators who have been fretting over a projected $7.9 billion hole in the next budget — a difference between what it would take to continue current programs and cover deficits in the current budget and what the state is expected to collect in future taxes.
They’re not out of trouble, but they’re in a shallower hole than they feared.
The other big change comes from Gov. Greg Abbott’s quiet assertion of power over rule-making in the state’s executive branch — a letter to state agencies that essentially tells them to ask his office for approval before making new rules and regulations or changing old ones.
Passing laws is only the first part of exercising state control. Much of the implementation happens at the state agency level, as the unelected professionals in state government interpret the laws passed by the elected ones.
They’re usually quieter about it, but the state government operates, in this regard, the same way the federal government does. Administrative rulings and regulations have at least as much impact on Texans as anything the more closely watched Legislature does.
The change is in the governor’s decision to pick up what was designed to be a loose leash. Texas governors appoint the boards that hire the agency heads who make the rules that describe which behaviors are lawful and which ones are not. But they can’t easily fire the people they appoint; this isn’t like a presidential cabinet where the secretaries of various government divisions can be fired for getting out of line.
Abbott's letter raises a question: Who should care? (Looking at you, state legislators). Time was, agency officials were very fast to return calls from lawmakers in charge of appropriations and in charge of substantive committees. Also, sometimes, governors. But legislators’ hold on the purse strings was generally more persuasive than the pleas of a relatively weak (by design) chief executive.
Perry, whose strengthening of the state's executive branch — and his stealthy 14-year theft of power from legislators — has gone largely unheralded, started this when he became governor in 2000. Only a former legislator, budget writer, executive agency head and lieutenant governor had the right tool set for this. He actually did know where the bodies were buried in state government, where the power points were and how to move them around. And he took power slowly, gradually seeding state agency offices with former employees, loyalists and others who shared his view of how government should work. It amounted to a subtle but very real shift in power.
Now Abbott, his successor, is putting a lawyer's touch on that grab, most recently telling executive branch agencies their proposed rules and rule changes need to go through his office before they're published for public comment. Rules are the things that put laws into effect — an "interpretation" of what the Legislature was trying to do when it wrote a particular statute. What better way to rewire a piece of legislation that doesn't quite suit the executive branch than to take control of the rules?
Abbott can’t force the agencies to do that, but he can make it uncomfortable if they don’t — especially if the Legislature isn’t offering any resistance.
This isn't the first round of this, either. Abbott successfully weathered a legislative challenge to some of his budget vetoes in 2015, winning — with the support of one of the legislative leaders whose pocket he was picking — a battle his predecessors had regularly lost. Budget-writers regularly hide some state spending in “informational items” they say are outside a governor’s line-item veto authority. To cut to the ending, Abbott took away one of the Legislature’s favored tricks for working around the state’s chief executive.
With his rules letter to state agencies, he’s eroding legislative authority again — putting his office in place to interpret how the statutes passed by the House and the Senate should be put into operation by the agencies in his branch of government.
It’s subtle, because we’re all accustomed to watching presidents work this way and because a lot of people think Texas governors have similar powers.
They do, but only if they assert themselves — and legislators let them.