Analysis: A Legislative Body In Motion Can Do Whatever It Wants

A Texas governor can tell lawmakers what subjects to work on in a special session but can’t tell them exactly what to do. The session that started this week is now in the hands of the Texas Legislature — not the governor.

By Ross Ramsey

The special session of the Texas Legislature is moving at the No-B.S. pace you’d like to see in a regular legislative session. The show started Tuesday, and the first bills could be on the governor’s desk for signature early next week.

The Senate acted quickly on legislation to keep five small but important agencies in operation, meeting the condition set for opening consideration of other issues dear to the lieutenant governor and some legislators, including school vouchers, restroom regulations, property taxes and local control.

Here’s another way to look at it: The governor has opened the pantry to a legislative swarm. He was the boss of setting the game, but now the game is in the legislative branch and out of his executive branch. In some ways, Greg Abbott is just another spectator now.

Sure, he’d like to keep some control. You can tell by the way he and the other lawyers in his office put the special session proclamation together. It’s not just a list of subjects open for consideration, but a list that includes invisible fences.

Like this: “Legislation adjusting the scheduling of Sunset Commission review of state agencies.” The governor wants lawmakers to delay those sunset reviews for two years by rescheduling them. He’d like to avoid the traps of opening full sunset reviews of the Texas Medical Board and four other departments (he’s not alone in that, by the way).

State Rep. Matt Schaefer, R-Tyler, said this week that he would welcome the chance to bring that legislation to the floor, in part because it is a ready vehicle for anti-abortion legislation he would like to pass. That’s exactly why it had a hard time in the regular session — lots of members didn’t want to do all of that — and why it ended up in the “safety net” for failed sunset attempts.

But here’s the deal about the governor’s nudges and winks: He can’t really control what the Legislature does — or doesn’t do — with a subject once he has added it to the agenda.

In a 1972 opinion issued at the request of then-Gov. Preston Smith, Crawford Martin — the state’s attorney general at the time — said the Legislature could consider and pass a constitutional amendment during a special session whether it was on the list of the governor’s subjects or not.

It’s not the governor’s branch of government. None of his beeswax.

This current bunch of legislators isn’t trying to amend the state Constitution. But they have a tendency to wander off of the governor’s intended trail. Lt. Gov. Dan Patrick gave us all a little preview before the session started, presenting his own plan for teacher pay and school finance.

This governor — and probably any one of his predecessors — would like to give legislators their coloring books, their crayons and their orders to stay in side the lines. But that’s not the way it works.

The state Constitution lets the governor name the subjects that’ll be considered, but it doesn’t give a governor the power to keep lawmakers from interpreting that broadly. In Abbott’s early-morning proclamation adding 19 more issues for consideration during the current special session, his folks accidentally left off an item and added it before lunch the next day: “Legislation reforming the authority of municipalities to annex territory, to exert control over territory, or to regulate the use of annexed land or land in a municipality’s extraterritorial jurisdiction.”

Oops.

But if you ask around, lots of smart people on the legislative side will tell you the oversight didn’t make any difference. There are other items that were included — like one that says, “Legislation protecting the private property rights of land owners from political subdivision rules, regulations, or ordinances that interfere with, delay, or restrict private property owners’ ability to use or enjoy their property.”

Annexation would fit comfortably under that umbrella, if legislators said so — even if the governor hadn’t included it. Makes one wonder what else might fit.

Abbott doesn’t want to just sit in his office and wait to see what happens in the Senate and the House, though many lawmakers said he did just that during the regular session that concluded in May. He’d like to have some say — and he might get it if he follows through on a threat to keep a naughty-and-nice list of which lawmakers were with him and which ones were against.

A scorecard from a party leader with a $41 million political bank account and no serious opponent so far could be a big burr in the saddle of any incumbent legislator seeking re-election.

But this is the Texas Legislature, a body famous for its schemers, plotters, gamers and sneaks. It’s a hard place to keep an elaborate plan on track.

This story was originally published by The Texas Tribune.