This originally appeared in the Fort Worth Star Telegram. It is reprinted here with the permission of the author.
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 5 years, and they had not been reappointed by the Governor. The Governor’s office stated they were working on the backlog and it would soon be taken care of.
Pursuant to a PIA document request of the Governor’s office last week, it was established that there are now 418 State Officers who are serving in their offices and exercising their statutory powers even though their terms have expired, some up to 9 years, and they have not been reappointed by the Governor. Clearly, the number of State Officers, commonly called “Holdover Officers,” is growing every year in the Abbott administration and their “terms” are lasting longer and longer.
This situation is clearly 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 2/3s of the Senate, they serve a 2 or 6 year term, and they may currently, only be removed by 2/3s of the Senate. Thus, they are called “independent officers” for the governor has no direct control over their actions.
However, “Holdover Officers” 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 may directly control their actions and the agencies that they have power to direct. That makes the governor very powerful and in essence, allows him/her to create a fiefdom of Officers that do what he/she says and they act pursuant to his/her wishes.
It appears that Governor Abbott believes he has 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. We do not know his exact interpretation for despite repeated requests, he has remained silent. If this is his interpretation, it is grossly wrong and could not withstand judicial review. This interpretation simply guts the meaning of the Constitution.
After several appeals to the Attorney General, the Lieutenant Governor, and the Senate Nominating Committee, nothing has been done. They appear to not have the wherewithal to stand up to Governor Abbott and declare his acts unconstitutional and demand that he remove these Officers immediately.
Governor Abbott has recently 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 Governor Abbott 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. His concern for his own power and his ability to control the Executive Branch Officers in the way he desires, should not be at a cost of violating the Texas Constitution.
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Professor Ron Beal of Baylor Law School is an expert in administrative law. He has written the definitive treatise, Texas Administrative Practice and Procedure, which is in its 22nd year of publication and routinely cited by the Texas Supreme Court. In his 36 years of practice, he deals with officers of state agencies appointed by the governor who obtain “holdover status” as discussed herein.