Governor’s Veto of Legislature’s Budget Exposes Constitutional Flaw

It’s a long-time truism in Texas politics that the governorship is relatively weak. Some would go as far as to say that the lieutenant governor holds the more important position.

Compared to some other states, Texas vests relatively more power in the legislature. And unlike the federal government, Texas has a plural executive, in which multiple officers are directly elected rather than appointed by the chief executive.

Battles between the governor and the legislature do happen, but throughout most of Texas history the governorship and legislature have been controlled by the same party.

That’s resulted in few serious constitutional crises—fewer tests of the strength and clarity of the constitutional architecture—despite the fact that Texas has one of the most complex, most-amended, and longest constitutions of all the U.S. states. 

But Governor Greg Abbott earlier this week made a threat that exposes a potentially serious constitutional flaw. “I will veto Article 10 of the budget passed by the legislature,” he wrote to his 600,000 Twitter followers. “Article 10 funds the legislative branch. No pay for those who abandon their responsibilities. Stay tuned.”

[Editor’s Note: Abbott later made good on the threat, issuing the veto].

What’s noteworthy about this threat is that it doesn’t appear there’s any way for the legislature to counteract it. Under the checks and balances of the Texas Constitution, the legislature can override a governor’s veto by a two-thirds majority—same as the U.S. constitution—but only when they’re in session. For any bills passed in the last 10 days of session, the governor can avoid an override vote by vetoing them after the session ends. And only the governor can call the legislature back into session, apart from the next regular session a year and a half later.

So far this hasn’t led to any kind of constitutional crisis because governors tend to use the post-session veto only to nix a handful of bills or budget items—not the entire budget of the legislative branch. 

But Abbott is now essentially claiming a way to super-charge the veto power of the governorship to extract concessions from the legislature on priority bills that he wants passed. If he carried out his threat, he could hypothetically deny the legislative branch funding for the entire upcoming biennium (September 1, 2021 through August 31, 2023). 

That would mean lights out at the Capitol. There’d be no pay for the state’s budget agency, the state auditor, or for Sunset personnel who carry out scheduled reviews of executive agencies. When the legislature did convene in January 2023, there’d be no paid staff to draft and print bills and a budget, and no public website where citizens could read draft legislation under discussion. The governor could turn the legislature into a decrepit, demoralized, defunded institution even as he accumulated more power over the course of a two-year period. 

“This would eliminate the branch of government that represents the people and basically create a monarchy,” wrote one Austin state representative in response to Abbot’s tweet.

It’s not even clear that the legislature could override the governor’s veto during special sessions planned for later this year, because the Texas Constitution doesn’t spell out whether the legislature has power to reconsider and override a veto of a bill passed during a preceding session. It’s an unsettled matter of law.

The best way to clear this up and forestall a future governance crisis would be to adopt a constitutional amendment. But that might not happen now because it’d make Abbott look bad. Too many lawmakers would hesitate to cross him, and the proposal would go nowhere.

Short of a constitutional amendment, future legislatures might simply adopt a practice of passing the budget and other priority bills earlier in the session. However, that would leave the legislature with a very narrow window for action. Regular sessions are already only 140 days, scheduled every two years, and bills can’t actually be acted upon until 60 days in. 

Letting this kind of threat hang over the legislature would neuter it for all but 90 days of the biennium.

That said, there’s no real danger to the constitutional order in the near term. The threat is mostly bluster: Abbott stands to gain from threatening the legislature because he’s looking ahead to a Republican primary in which anti-Austin, anti-establishment rhetoric will play well. 

The veto threat came after Democrat lawmakers staged a walkout last Sunday to deny the Texas House quorum for passage of Senate Bill 7, the governor’s priority election legislation. Abbott, by threatening the legislature’s budget in retaliation, casts himself as a tough-on-liberals fighter.

But it’s worth pointing out that Abbott almost certainly didn’t need to threaten to defund the entire legislative branch in order to achieve his legislative goal. That’s because majorities in both the House and Senate favor passing SB 7 (or a bill that looks a lot like it), and the Democrat walkout has only delayed consideration of SB 7 until a special session.

So perhaps the real reason for the threat was that the governor didn’t like the look of Democrats running roughshod over an election bill that he had declared to be a priority. Not coincidentally, too, it appears, Abbott won the endorsement of former President Donald Trump on June 1—one day after the veto threat and a vow by Abbott that he would get the election bill passed. 

Trump, of course, has claimed that the 2020 election was “stolen” and fraudulent. He has called for “comprehensive election reforms” nationwide, and in his endorsement of Abbott he said that the Texas governor “is all in on Election Integrity.” The former president, it seems, still casts a long shadow over Republican politics in Texas.