In June of 2016, the Texas Tribune reported that there were 336 state officers who were serving in their offices and exercising their statutory powers even though their terms had expired, some up to five years, and they had not been reappointed by the governor nor approved by the Texas Senate. The governor’s office stated he was working on the backlog and it would soon be taken care of.
Pursuant to a Public Information Act document request of the governor’s office in April of 2019, it was established that there are 418 state officers who are serving in their offices and exercising their statutory powers even though their terms had expired, some up to nine years, and they had not been reappointed by the governor and the Texas Senate.
On May 1, 2020, pursuant to another PIA request, the governor has 265 unappointed officers who have remained in their offices even though their terms have expired, some up to seven years. It can only be assumed that the governor’s “track record” establishes that he prefers to maintain this cadre of officers. In the current group, the officers work at 17 major regulatory agencies, and in a number of agencies, these unappointed officers constitute a majority, giving them control over the formal decisions of the agency.
This situation is blatantly unconstitutional, and these officers should be removed immediately.
The Texas Constitution creates a weak governor state. All of the major executive officers are directly elected by the people: the attorney general, the lieutenant governor, the speaker of the House, and the comptroller. State officers are appointed by the governor, but they must be confirmed by two-thirds of the Senate. They serve a set two- or six-year term, and they may currently only be removed during their specified term by two-thirds of the Senate. Thus, they are called “independent officers” for the governor has no direct control over their actions for he has no power to remove them if they displease him.
However, “holdover officers” as set forth above, who continue to serve after their term has expired, serve at the governor’s pleasure, are not confirmed by the Senate, have no set term, and may be removed by the governor at any time. Therefore, the governor is able to directly control their actions and the agencies that they have power to direct. That makes the governor a very powerful leader and in essence, allows him to maintain a fiefdom of officers who do what he says and act pursuant to his wishes.
We all have heard from the governor and the governor’s office many times that he has excelled in attracting new businesses to the state of Texas. Is part of his presentation that he has control over the regulatory structure of the state, and he will work hard to have those agencies “do the right thing” for new businesses in the state?
It appears that the governor and his office believe they have the legal authority to allow these officers to remain in office and to exercise their powers due to Article XVI, Section 17(a) of the Constitution that allows an existing, appointed officer to serve beyond his/her term until one’s successor is qualified. However, no one knows his exact interpretation for despite repeated requests, he and his office have remained silent. If this is his interpretation, it is grossly wrong and could not withstand judicial review. His interpretation simply guts the meaning of the Constitution and vests powers in him that the framers of the Constitution not only did not intend to give him, but run blatantly counter to the restrictions set forth in the Constitution.
After several direct and specific appeals to the attorney general, the lieutenant governor, the Senate Committee on Nominations, and the comptroller, who may only use state funds to pay lawful state officers, no response has been offered nor any action taken. They appear to not have the wherewithal to stand up to the governor, to declare his acts unconstitutional and to demand that he remove these officers immediately.
The governor has sworn to uphold the Texas Constitution and to do what is best for the citizens of the state of Texas. It is now time for him to stand up and do what is right, to stop acting in an unconstitutional manner and to remove these officers and the illegal authority he has over them. The governor’s own power and his ability to control the executive branch officers in a manner in which he desires, should not be at a cost of violating the Texas Constitution.
Ron Beal is a professor of law at Baylor Law School.