One quixotic casualty of Sine Die was Prof. Ron Beal’s one-man campaign to persuade Gov. Greg Abbott to honor the Texas Constitution. The Baylor Law professor and authority on Texas administrative law wrote the governor, “I wanted to let you know that you have won.”
Beal had sent a sequence of letters to the governor and members of the Senate Committee on Nominations, demanding some defense of Abbott’s now engrained habit of maintaining “holdover appointees” in dozens of state agency offices with officially limited terms. By the Governor’s Office own mid-session accounting, there were 418 ongoing officeholders whose terms had previously expired (ranging from one to eight years ago). That total has undoubtedly changed in the rushing wind of legislative appointments – submitted to assembly-line review by Nominations followed by reflexive Senate confirmations – but as Beal sees it, the question of executive authority remains open.
In his letters and newspaper op-eds, Beal argued that “holdover officers are blatantly unconstitutional,” not only because they exceed their statutorily defined terms, but because they continue in office at the pleasure of the governor, who thereby “totally controls their actions related to the agency they serve.” Beal has repeatedly requested either a gubernatorial defense of the practice or an attorney general’s opinion on its constitutionality. He has received no response from either the governor’s office or other officials.
Accordingly, on May 18 he wrote to Abbott: “I wanted to let you know that you have won. The code of silence has wholly defeated me. I am throwing down the pick and going on my way.” Beal says that his inevitable inference is that the officials involved recognize that the holdover practice is unconstitutional, but simply refuse to rectify the situation. He also deplores another recent gubernatorial practice: since May of 2018, requiring agencies to submit proposed rules first to the governor’s office for a “second opinion.” According to Beal, “No Governor in the history of Texas has ever asserted that he or she had such power to preliminarily review agency rules.” In combination, suggests Beal, Abbott is indirectly attempting to convert Texas to a “strong governor” state.
“I am not necessarily against a powerful governor state,” writes Beal, “but our Constitution does not provide for it.” In his letter of “surrender,” he concludes, “I have done everything possible to convince you to follow the law, but that clearly is not going to happen.” Beal imagines a future attorney defending his client by challenging the authority of an agency led by a “holdover” official – until then, governors will presumably act “in violation of [their] legal duty.”
This article appears in May 31 • 2019.
