Will Perry Appeal the Executive Order Ruling?
Fri February 23, 2007 12:16 pm

Governor Perry’s spokesman Robert Black reacted to Austin judge Stephen Yelenosky’s issuance of a temporary injunction against the governor’s executive order speeding up the permitting procedure for new coal plants with a typically intemperate statement: “No one should be surprised that a single liberal Austin judge would rule against Governor Perry and his efforts to increase energy capacity in Texas,” he said in a statement. “We will take a close look at the ruling and make a determination on how we will proceed.”

If I were advising the governor–and, lucky for him and lucky for me that I’m not–I would suggest that “we” not proceed with an appeal. I haven’t seen the language in Yelenosky’s order, which was expected to be issued today, but I have read the plaintiffs’ “Motion with Points of Law.” Their argument appears to rest on solid ground in statutory law concerning the State Office of Administrative Hearings (SOAH), which was created in 1991 as a “neutral, independent forum to resolve legal disputes involving state agencies.” This isn’t a liberal activist judicial action. It’s plain-as-day law.

In the passages below, the statutory language is in italicized:

Section 6 of the Motion reads, “SOAH was ‘created to serve as an independent forum for the conduct of adjudicative hearings in the executive branch of state government. TEX. GOV’T CODE 2003.021(2).’ The enabling legislation unquestionably contemplates an agency independent of the Governor as well as executive agencies (such as the TCEQ) that refer matters for adjudication.”

Section 7 of the Motion reads, “The governor has no authority to interfere with SOAH’s judicial function, and no authority to eliminate the discretion of administrative law judges when setting hearing schedules. To the contrary, SOAH enabling legislation establishes that ‘(t)he purpose of the office is to separate the adjudicative function from the investigative, prosecutorial, and policymaking functions in the executive branch. in relation to hearings that the office is authorized to conduct’ [also citing TEX. GOV’T CODE 2003.021(a)].”

Section 39 says, “SOAH judges cannot be ‘responsible or subject to the supervision, direction, or indirect influence of any person other than the chief administrative law judge or a senior or master administrative law judge….’ [citing TEX. GOV’T CODE 2003.04].

Section 41, without quoting statutory law directly, says, ” With respect to SOAH, the Governor has the power to (a) appoint the chief administrative law judge, and (2) [sic] approve the amount of the biannual fixed fee charged for services by SOAH.” (These are the only powers explicitly granted by the statute.)

I have requested information from the governor’s office concerning their arguments for Perry’s authority to issue binding executive orders, but the earliest I can expect a response is next week.

The statutory language appears to be quite clear in its intent to establish SOAH as an independent agency. The governor’s order to accelerate the hearings for coal-plant permits was an attempt to intervene in a contested case hearing to the detriment of one side. It is clearly contrary to both the letter and the spirit of the law. This is why I think the governor will not appeal, unless he is confident that he owns the Supreme Court. He is very likely to end up with an adverse precedent. His executive order to Albert Hawkins, the commissioner of Health and Human Services, to administer the HPV vaccine to young girls is far easier to defend, both on policy and procedural grounds. Hawkins is the head of a major state agency. The program has clear policy benefits. No statutory language is an impediment. I’m confident that the governor’s action violates the spirit of the law, but not so confident about the letter of the law. If the case ever gets to court, much of the battle will be over the intent of ancient state constitutional provisions.

The entire text of the plaintiffs’ Motion and Points of Law can be found at this link. This represents the first 21 pages of a 67-page document, the remainder of which is exhibits and boilerplate.

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