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As To Governor Abbott’s Powers, He Has Defiantly Ignored The Law And The Court Has Intentionally, Knowingly, And Willingly Allowed Him To Do So: This Is A Constitutional Crisis

Did we not all learn in our Texas Government Class that the Legislature writes and adopts the words of a statute, the Governor has the authority to faithfully execute those words as set forth in the statute, and the Courts exist to make sure and insist that the Governor interpreted the words of the statute correctly and applied them legally? 

The key in all three is the word “statute.” Only our Legislature, whom we directly elect, has the power to decide what laws will govern us and in what manner. 

 The separate jobs of the three branches are guaranteed by the Texas Constitution Separation of Powers provision that prohibits one branch from exercising the powers of another. 

This governmental set-up is the essence of a democracy. The short-hand label is that we all must comply with the Rule of Law as created by the Legislature. If we do not like the existing laws, we elect new representatives to amend and/or adopt new laws. 

Governor Abbott and the Texas Supreme Court have intentionally, deliberately, and knowingly shredded these fundamental concepts during the first three and a half years of the ongoing covid pandemic. 

Only a handful of people, including lawyers and judges, have complained. No one has listened or seemed to care. Abbott and the Court have been directly confronted about their unconstitutional acts, and they have proceeded to act illegally, by even asserting the Constitution that they have violated actually legally allowed them to act in that manner. Such bold disdain for the rights of the people!

And seemingly, with absolutely no fear of being “caught” and having to explain such blatantly illegal actions. 

For example, at the beginning of the pandemic in March of 2020, Governor Abbott decided since criminal trials were being delayed by the Supreme Court, citizens who had been arrested for a crime, but not convicted, should not be able to secure bail and be free to commit other criminal acts until the pandemic subsided. 

In the Disaster Act, the Supreme Court had the exclusive power to suspend such laws and no other officer could assert a statute gave them such power. Governor Abbott wholly ignored the statute and issued GA-13 suspending bail for unconvicted, but incarcerated citizens, ordered all judges to comply with his order and threatened to convict the judges if they did not.

The Supreme Court knew the day GA-13 was issued it was illegal and they knew they had the administrative power to nullify it immediately. For three years, they did nothing. Houston Judges sued the Governor to have the Court judicially nullify the order. The Court held the judges did not have “standing,” meaning injury in fact, and dismissed the entire lawsuit. 

How is it literally possible one does not have injury in fact as a Judge when the Governor violates separation of powers by ordering them how to do their job, and if the judges acted legally by ignoring his illegal order, they could be prosecuted for doing so? 

Even if you wanted these people in jail, are you not petrified by how these officers acted, particularly when there was a legal way to do it?

How would you like to be illegally held in jail by your government when they had absolutely no legal basis to do so?

The second example is very controversial, but just as much a gross violation of the law by the Governor and Court. The issue: Mandatory Masking in Schools. 

Governor Abbott in fact mandated masks in schools during the first year of the pandemic. There was a huge citizen outcry and he backed down in the summer of 2021. He issued GA-34, GA-36 and GA-38 that not only banned masks in schools but prohibited school officials from doing the same. Many schools, most of the largest, refused to give up their current mask orders for all students, staff and teachers and four lawsuits were commenced against the Governor.

Not only did the Disaster Act vest power in the Governor, the Act was amended by the Legislature to allow schools, cities and counties to have all the powers vested in the Governor. What this clearly meant was if the Governor during a disaster decided he did not need to act or he required a few things, but left it up to citizens alone to do more, the Legislature amended the Act to let the local government officials to act on their own and provide more protection.

The Disaster Act placed absolutely no restrictions on the local government powers, and it gave no power to the Governor to repeal, amend or simply prohibit any local government order. 

Despite the wording of the Disaster Act, Governor Abbott blatantly declared the school mask mandates were void and he ordered the local officials to cease and desist from so requiring them. 

The four lawsuits were recently decided by the Supreme Court and they declared the provision vesting power in local governments to be a nullity, to have no legal effect. 

Oh, so many parents and children were overjoyed, and many others could not believe their children would be forced to be exposed to everyone sick with covid when they were mandated to be in school.

Despite which way you reacted, should this controversy be determined by a Governor with no power to do so and by the Supreme Court who pledge to uphold the law of the Legislature? What if next time it is an issue you really care about and the Court rules against you? 

Was the pandemic something special and surely the Governor and Court will quit ignoring the law? Why should they? Has it not been a power trip for them to unilaterally decide what the law is and ignore the Legislature? And no one has been complaining about it!

Worst of all, they are all lawyers. What are we the people doing electing government officers that are willing for whatever reason to blatantly reject our form of government and the ethics and rules of their chosen profession? It is very scary. So scary we should all do something about it before it is too late.

Ron Beal
Ron Beal
Ron Beal, Professor of Law at Baylor Law School, has taught, practiced and written on Texas Administrative Law for 37 years. He has written a two-volume treatise, Texas Administrative Practice and Procedure (Lexis, 23rd ed. 2020) and 17 law review articles that have been routinely cited by the Texas Supreme Court and Austin Court of Appeals as an authoritative source.


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