Tue August 4, 2015 12:08 pm By Erica Grieder

I’m about to make one correction to yesterday’s post about Governor Abbott’s showdown with the Lege, and I don’t want this one to get lost in the shuffle so I decided to highlight it here also. There are TWO legislators who have publicly stood up for the Lege so far: Speaker Straus, as I mentioned yesterday, and Senator Juan Hinojosa, who issued a statement on the subject on July 22nd. Since Hinojosa is a Democrat, I imagine some “conservatives” will dismiss his views as ideologically motivated. Since I am a fiscal conservative and a journalist known to be preoccupied with arcane Texas budget battles, I can pre-emptively confirm that Hinojosa, who represents the most “purple” districts in the Texas Senate, is not coming at this from a partisan perspective. He is the vice-chair of Senate Finance, a member of the Legislative Budget Board, and one of the senators I respect and take seriously, despite my concerns about the Texas Senate as a chamber these days. His statement reflects his expertise and experience:

Allowing the Governor’s line-item vetoes of riders would significantly expand the power of the Governor by allowing not only legislative appropriations to be vetoed, but also non-appropriation provisions of legislative direction and intent. The issue is not one of spending, but the issue of protecting the Constitution and the separation of powers of our executive, judicial and legislative branches under our Constitution.

While I’m at it, let me call your attention to a point WUSRPH made in the comments section of the previous quote. I agree with virtually everything he says there, and want to highlight this point especially:

The fact that other members of the Legislature have not spoken out in defense of Ms. Parks and in support of the Speaker does not mean that they do not have the support of a large majority. One of the roles of the Speaker is to take the point in fights like this, but no speaker is going to take on the governor without knowing that a majority of his members agree with him. They would rather not have to declare themselves in public….but they have certainly let him know in private.

I may return to the subject this week, because I have some things I’d like to say about the Legislative Budget Board. But for now, I’ll just say that I agree, and that observers can safely proceed on the premise that there are plenty of legislators who quietly agree with Straus and Hinojosa, whether or not they’re willing to say so.

Mon August 3, 2015 6:11 pm By Erica Grieder

After puzzling over the legal arguments, I’ve come to some conclusions about the ongoing showdown between Governor Abbott and the Legislative Budget Board. The substantive debate is interesting and has potentially serious implications. But making sense of the respective legal arguments is not for the faint of heart, so I’ll summarize my conclusions before I lay out my reasoning:   

This is a separation of powers case. On the surface, the adversaries are Greg Abbott and Ursula Parks, the director of the Legislative Budget Board, and they’re tousling over the meaning of a phrase: “items of appropriation.” But the underlying issue is the balance of power between the legislative and executive branches of state government. Abbott is advocating for a broader interpretation of the governor’s line-item veto power. For him to prevail would mark an expansion of the governor’s power and an abridgment of the Legislature’s.

The governor’s interpretation is intuitively appealing, and his reasoning is analytically sound, in my view. Since the question may eventually be resolved in court, state law may eventually conform to his interpretation. After years of covering the Texas Attorney General’s Office as helmed by Greg Abbott, I think everyone should proceed on the assumption that facing off against the guy’s team in court is bringing a knife to a gunfight. Frankly, I’m a little bit nervous about publicly disagreeing with the governor’s analysis in this case, not because I fear retribution, but out of a slightly superstitious concern for being totally wrong in public. But it can’t be helped. The philosophical debate has been presented in the form of a legal question, which the comptroller, Glenn Hegar, has to answer. I can see why Parks’ analysis would strike the governor as obnoxious, but on closer inspection, the law she’s assessing is in fact obnoxious from a governor’s perspective, because it blatantly favors the Lege’s authority in the budget process. As it stands, in other words, she is correct.

And because this is a separation of powers case, I hope the Lege prevails if the question does end up in court. As the governor’s office has observed, citing Alexander Hamilton in the Federalist Papers, “legislatures are not infallible”; Lord, he wasn’t kidding. But governors aren’t infallible either. Candidly, I like Abbott. I think his gubernatorial administration is off to a strong start, and having been seriously spooked by the Texas Senate’s collective defection from the state’s core values, I want the governor to be as strong as possible: I’m counting on him and the Texas House to keep our great state on stable footing. At the same time, Abbott is among the top-flight Texas conservatives who have influenced my own thinking over the years in various ways. He really has only himself to blame for this example: I’m a sworn enemy of executive overreach. I’m relieved that Parks is right, because I’m rooting for the Lege. Nothing against Abbott, but any extension of his constitutional authority is an extension to all future governors of Texas, whoever they may be. And although Abbott is extremely popular among the legislators, they need to be careful here. Any power they concede now will be conceded permanently. They shouldn’t give the governor any power a Lege might want to use someday. And they shouldn’t give Abbott any power that they wouldn’t trust a Dan Patrick or Wendy Davis to wield; there came a pharaoh who knew not Joseph.

And with that, let’s tackle some lawyering.

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Mon August 3, 2015 3:01 pm By Erica Grieder

Once again, the legal travails of Texas Attorney General Ken Paxton are dominating the state headlines. And once again, I’m feeling slightly disaffected: clearly, Texas Monthly should update its readers on the latest developments, but once again ,the developments are in tension with my concept of “news.” 

The charges against Paxton, which we already know about—two counts of securities fraud, plus the felony he admitted to more than a year ago—were unsealed this morning, so I guess we have more details on that front, but since we knew what the charges were and an indictment is not a verdict, I can’t summon that much curiosity, frankly. And many reporters in the capitol press corps were on the scene in Collin County, so we have some news about Paxton’s mornings errands: He surrended to authorities at the Collin County jail, posed for a mugshot, and was released on bond.

I guess my role is to offer some analysis, so here it is. The mugshot, clearly, is the most popular detail of today’s news among people following developments; within minutes of release half a dozen people had texted me about it. However, I disagree with the conventional wisdom. The best detail of the day is Patrick Svitek’s sober account of Paxton’s great escape: “Afterward, he apparently slipped out of the courthouse undetected, avoiding the throng of waiting media and Democratic protesters.” Classic Paxton. Thanks, Svitek.

We’ll continue to report on this story as it develops, or as pseudo-developments command the headlines, I guess. But why wait? As readers may recall, I correctly predicted that Paxton would be indicted. Since I have access to this magic time machine known as inductive reasoning, I’ll make another prediction now. Although he’s not legally obligated to do so, Paxton will step down as attorney general—not right away, but within the next year or so (SEE UPDATE). I don’t wish the guy any personal harm, and I don’t take pleasure in anyone’s misfortune, but that would probably be the best thing for his family, for the office of the attorney-general, and for the state of Texas. And more importantly, perhaps, I would guess that’s what Governor Abbott wants. And if so (for reasons I’ll explain in the second part of my post about the Legislative Budget Board, if I ever have a chance to finish that without getting interrupted by whatever is going on with Paxton) Abbott will win: the office may be weak, but a strong governor can get what he wants.  

UPDATE: I’m so exasperated by this story that I didn’t even bother to explain my reasoning on the timeline I predicted above, but I immediately received a follow-up question about that. That cheered me up, because it’s a good question, and one that reflects a heartening degree of civic engagement and concern for state government. So here’s the reasoning behind that prediction. If Paxton steps down, Abbott appoints the replacement, who serves until the next general election, unless the secretary of state’s office can’t make the necessary arrangements in time. And in general, Texas Republicans, prefer elections in non-presidential years; Abbott would probably prefer any appointee to serve through 2018. On the other hand, Abbott won by a 20-point margin in 2014; using my time machine, I say it’s a reasonably safe bet that any Republican running for statewide office in 2016 is going to win. (I mean, again: Texas Attorney General Ken Paxton). And the cost-benefit analysis here may be shaped by events yet to come. My prediction here is just a prediction, and may prove wrong—but that, in any case, is the reasoning about the timeline. 

Sun August 2, 2015 10:18 am By Erica Grieder

The showdown between Greg Abbott and the Legislative Budget Board can be summarized as follows: this is a separation of powers case. And it’s a substantive and provocative case, to boot. To give a quick summary, the debate concerns Abbott’s line-item vetos to the state’s biennial budget, which the governor signed June 20th, after whittling it down by about $300m, mostly by cutting appropriations for state facilities.

Last month Ursula Parks, the director of the Legislative Budget Board, sent a letter to Glenn Hegar, the comptroller, arguing that a number of Abbott’s line-item vetoes exceeded his constitutional authority, and therefore were invalid. Briefly put, LBB’s argument is that although the governor can veto items of appropriation, he can’t veto the budget riders that direct portions of those appropriations for, say, a new parking garage; those line-item vetoes should be ignored, Parks says, and the comptroller should go ahead and release the funds as appropriated by the Lege. The governor’s office, naturally, disagrees. Their reasoning, as summarized in a brief memo written prior to the vetoes and detailed in the 62-page brief I mentioned Friday, is that the aforementioned budget riders are functionally equivalent to items of appropriation, and that the Lege is trying to use “magic words” to protect its parking garages and whatnot from the governor’s veto pen.

After puzzling over these documents, I think the LBB is correct, and also that I wouldn’t want to get caught in a courtroom fight with these Abbott attorneys. (I’ll explain why in a separate post, though.) First I’d like to deal with the side drama that was spurred by the substantive dispute. Ultimately, Dan Patrick’s adverse reaction to Parks’s memo tells us nothing about the constitutional question. But it does tell us something about Patrick.

Necessary context first: Per the Texas Constitution, the lieutenant governor is a statewide elected official, elected separately from the governor, whose office is part of the executive branch. In addition, Texas’s lieutenant governor is the president of the state senate. In some contexts, his role corresponds directly to that of the Speaker of the Texas House; Patrick and Joe Straus are, for example, the joint chairs of the Legislative Budget Board.  In some respects, however, the lieutenant governor’s control over the upper chamber exceeds the speaker’s control over the lower one. In the House, for example, a pair of committees—Calendars and Local & Consent—schedule bills to be heard on the floor; Straus appoints the members of these committees, and can exert some pressure on them, but not to a despotic degree. The Senate has a quasi-corresponding intent calendar, but the lieutenant governor decides the order in which bills are heard on the floor, or whether they are heard on the floor at all.

This hybrid legislative-executive role helps explain why the lieutenant governor is sometimes described as the most powerful statewide official in Texas. It does not help explain Patrick’s inexplicable response to the LBB memo.

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Sat August 1, 2015 2:54 pm By Erica Grieder

WFAA reports that a Collin County grand jury has indicted Ken Paxton on several felony charges. The charges, per WFAA, will be unsealed on Monday, so it’s unclear what he’ll be charged with, but we can make some educated guesses (SEE UPDATE, BELOW):

Special prosecutors in the Paxton case told News 8 they planned to present a third-degree charge of failing to register with the state securities board, as the law requires. They also said they planned to present a first degree felony charge against Paxton accusing him of securities fraud. All indications are that charge is related to Servergy, a McKinney-based company that has been under investigation by the Securities and Exchange Commission.

As WFAA notes, Paxton can continue to serve under indictment, as his predecessor Jim Mattox did back in the 1980s, and as Rick Perry did more recently. Like all indicted people, Paxton should be considered innocent until proven guilty, and the Perry example illustrates why Texas law is so sanguine about indicted officials. Our former governor was indicted on charges of coercion and abuse of power in 2014; the former charge was thrown out by a state appeals court last week, and I would be shocked if a jury finds him guilty of the latter. Paxton, however, is unlikely to be so lucky. 

Will the public pay attention, though? The potential third-degree felony charge they mention is, again, the one that Paxton admitted to more than a year ago. Here, again, is what I wrote about it at the time. Here’s what Jay Root wrote about it at the time, May 2014, for the Texas Tribune. Here’s Christy Hoppe, with the Dallas Morning News, on how the McKinney police reacted to the news, more than a year ago. Here’s Joshua Fechter, San Antonio Express-News, writing in May 2014 about a complaint filed with the national Securities and Exchange Commission, days after Paxton was reprimanded by the state Securities Board.

I could go on, but I think the point is clear enough. Paxton admitted to a felony before he was elected attorney general—before he even won the Republican nomination, in fact. This was widely documented in the Texas press at the time. That didn’t stop Paxton from winning the primary runoff in late May, buoyed by a pseudo-endorsement from Ted Cruz and the Texas conservative grassroots’ unhinged animus against anyone—in this case, state representative Dan Branch—with a known professional or personal association with Joe Straus. 

In other words, our attorney general isn’t the political equivalent of a lemon. It was a matter of public record, during his campaign for statewide office, that Paxton could easily face felony charges while serving as Texas’s top law enforcement official, or—best case scenario, if you believe his spokesman, Anthony Holm—that Paxton’s election would leave Texas with an attorney general who commits the occasional felony by accident, and gets away with nothing more than a formal reprimand from the state Securities Board because no one bothers to follow up with the prosecutors.

The good news is that, as far as anyone knows, Paxton’s travails are Paxton’s alone; the charges relate to his private legal practice. Texas still has a competent attorney general’s office, with plenty of talent in critical roles, including Scott Keller as solicitor general; Bernard McNamee as chief of staff; Chip Roy as first assistant attorney general; and David Maxwell as director of law enforcement, among others, not to mention countless attorneys and other professionals who work for the office, rather than whoever happens to be the attorney general at the time. The bad news? We get the elected officials we deserve. I’d like to think Texas deserves better. In 2014, a majority of voters decided we did not. 

UPDATE: Manny Fernandez, at the New York Times, reports that Paxton will face three charges: one for the aforementioned failure to register as an investment advisor representative, which is a third-degree felony, and two for securities fraud, a first-degree felony.

(AP Images | Eric Gay)