Good. And necessary.
A group of Texas House Democrats and legislative staffers is asking the Texas Supreme Court to override Gov. Greg Abbott’s recent veto of a portion of the state budget that funds the Legislature, staffers there and legislative agencies.
More than 50 Democrats, a number of state employees and the Texas AFL-CIO have signed on to a petition for a writ of mandamus, which was filed Friday morning.
“The state is in a constitutional crisis at this moment,” said Chad Dunn, an attorney involved with the petition, during a briefing with reporters Thursday.
[…]
The petition argues that Abbott exceeded his executive authority and violated the state’s separation of powers doctrine. The parties involved with the petition are asking the all-Republican court to find Abbott’s veto unconstitutional, which would allow Article X of the state budget, the section at issue, to become law later this year.
State Rep. Chris Turner, a Grand Prairie Democrat who chairs his party’s caucus in the lower chamber, told reporters Thursday there are roughly 2,000 employees in the state’s legislative branch that would be affected by Abbott’s veto if it stands.
Lawmakers receive $600 a month in addition to a per diem of $221 every day the Legislature is in session for both regular and session sessions.
“This isn’t about [lawmakers’] paychecks,” Turner said during the briefing. “What he’s doing is hurting our staff and hurting our constituents.”
See here for the background, and here for a Twitter thread from Rep. James Talarico explaining the reasons behind the petition. Rep. Talarico notes that the effect of the veto “also includes nonpolitical staff like the custodians, cafeteria workers, landscapers, and parking attendants…[who] will also lose their pay and their health insurance on September 1”, which is the end of the fiscal year. The special session for July will almost certainly include action to restore this funding, but only if Abbott puts it on the agenda, which gives him quite a bit of leverage. Way too much, if you believe what the state constitution says.
The plaintiffs have asked the Supreme Court for a ruling before September 1. I have no idea what they will do, but consider this for a moment. Beto beats Abbott in November 2022. After taking office, he issues an executive order of some kind, maybe to kill the Abbott border wall. Doesn’t really matter, whatever it is he gets sued by Jared Woodfill, who gets a writ of mandamus from SCOTX blocking the order. And then, a few months later after the Lege passes its budget, Governor Beto uses his line item veto authority to defund the Supreme Court, which he says is payback for their dumb and disrespectful ruling against him.
You may say that’s ridiculous. I would agree, but the real question is what (other than a respect for norms and not being a petty tyrant like Greg Abbott) would stop Governor Beto if it came to that? If the Supreme Court says there are no limits on what a Governor can do to exert influence over another branch of government, then surely this too is fair game.
Those of you with memories that extend past last week may remember the precursor to all this, when Rick Perry threatened to veto funding for the Public Integrity Unit of the Travis County DA’s office if then-DA Rosemary Lehmberg didn’t resign following a drunk driving arrest. Lehmberg, whatever her faults, was an elected official who did not answer to the Governor, but Perry felt it was within his power to attempt to force her out and to use the threat of cutting off funding for a division of her office as the stick. Perry was subsequently indicted by a grand jury for an abuse of office charge, but the Court of Criminal Appeals came to his rescue and tossed the indictment, buying his argument that he was being arrested for exercising veto power. But it wasn’t that – indeed, he never did veto any PUI funding – it was the threat and the coercion. Abbott’s veto, done as retaliation against a legitimate legislative action that he just didn’t like, is the next step of this progression. It’s autocratic, it’s a huge abuse of power, it’s dangerous, and it must be stopped by the one branch of government that can stop it. If SCOTX doesn’t recognize the need to do this, they will have truly failed us all.
UPDATE: A statement from Abbott about the lawsuit can be found here.
The SCOTX promptly requested a response, which is due July 5, 2021
The docket is here:
https://search.txcourts.gov/Case.aspx?cn=21-0538&coa=cossup
I haven’t had a chance to read the full petition yet, but it seems like the argument is voidness, so the respondents (the Governor himself is not being sued) could presumably just ignore the veto if they were to agree.
It will be interesting to see what legal position they will take in their response, and whether the Governor files an amicus brief. He did so in another case in which he was not a party that the SCOTX just decided yesterday. See In re Facebook, Inc. No. 20-0434 (Tex. June 25, 2021)(conditionally mandamus granted in part). Amicus Curiae Brief of The Governor of Texas submitted by James P. Sullivan of The Office of the Governor in Austin, Texas, filed March 5, 2021.
The statement by Abbott’s spox implies as much regarding legal ineffectiveness, at least as to the Legislators’ salaries. Kudos for Kuff for supplementing the link.
One would also expect AG Paxton/Solicitor General to weigh in since there is a constitutional question, not to mention a serious one. But they will likely appear on behalf of the respondents anyhow, so an amicus brief by the AG in the name of the State might be redundant or merely duplicative.
BUT IS THIS COMPLAINT EVEN RIPE?
It would seem that the SCOTX could dispose of this mandamus petition by ruling that the request for judicial relief is not yet ripe because nobody’s salary has yet been cut off and because bad effect will not occur until the end of the fiscal year, or that the Lege funding dispute is a political question to be decided (or “re”decided) by the Lege when they come back for the special session.
Alternatively, it’s conceivable that they might just drag their feet and let the thing go moot, assuming the Texas Lege give the governor what he wants in the interim and also passes another appropriation.
The case is styled as follows: IN RE CHRIS TURNER, IN HIS CAPACITY AS A MEMBER OF THE TEXAS HOUSE OF REPRESENTATIVES AND HIS CAPACITY AS CHAIR OF THE HOUSE DEMOCRATIC CAUCUS, ET AL.
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