Despite critics’ concerns, more oversight of state agencies is a good thing

Photo by Bob Daemmrich for The Texas Tribune

As chief executive officer of the State of Texas, Gov. Greg Abbott has decided to increase oversight of several executive branch state agencies. In a June 22 letter to agency heads, the governor’s office informed each agency that proposed rules and regulations must now be submitted to the governor’s office for review before publication in the Texas Register. Included with the draft rule must be a copy of the analysis used to craft any description of the rule required by statute, such as an economic impact statement (Tex. Gov. Code § 2006.002). As someone who has spent time perusing the Texas Register, I support the governor’s efforts to “provide a ‘dispassionate’ second opinion on the costs and benefits of proposed agency actions.”

Not everyone agrees. A recent Austin-American Statesman article featured several negative quotes from prominent individuals opposed to the Governor’s new interest in rulemaking. State Rep. Byron Cook reminded readers that the governor does not have “the power to veto or delay the proposal of a rule, whether by act or omission.” Cook also expressed confusion in terms of how the governor’s office will review so many rules. The same article mentions Baylor Law professor Ron Beal as describing the governor’s actions as “an unprecedented bid to increase the power of Texas governors.” Ross Ramsey at The Texas Tribune essentially argues that the governor is playing on the Legislature’s turf. Rules written by state agencies are supposed to be “an ‘interpretation’ of what the Legislature was trying to do when it wrote a particular statute,” Ramsey explains. By making such an interpretation in the governor’s office, Abbott is “eroding legislative authority.”

Section 2001.003(6)(A) of the Government Code, in part, defines a “rule” as a state agency action that “implements, interprets, or prescribes law or policy.” Working with the legislators of the Texas Conservative Coalition, I know there is frustration at times with state agencies that do too much “interpretation.” Within the last five years, members of the coalition have taken issue with numerous state agency rules that appeared to be aggressively interpreting the laws on the books. Examples that come to mind include rules on historical racing by the Texas Racing Commission, rules on dental service organizations by the Texas State Board of Dental Examiners, and rules on “pull-tab” bingo by the Texas Lottery Commission. The “pull-tab” bingo example is apropos of the current debate, as that resulted in Gov. Abbott sending a letter in November 2015 ordering the commission to cease its efforts with respect to the rule. In response, Texas Lottery Commission spokeswoman Kelly Cripe reluctantly stated in a one-sentence email to the Dallas Morning News, “We will adhere to what has been expressed in the governor’s letter.”

These examples are exceptions to the norm, and Texas’s agencies generally do a good job crafting rules and regulations but that’s no reason to be complacent. The Texas Register typically publishes between 100 and 150 pages of new and revised rules every week. These are rules that affect the lives and businesses of Texans, and they have the force of law behind them. It is not unreasonable for the head of the executive branch of government to ensure that those rules are focused on properly implementing the laws passed by the Legislature and allowed to become law by the governor. Indeed, Article IV, Section 10 of the Texas Constitution requires the governor to “cause the laws to be faithfully executed.”

Much has been said about the administrative state — often called the fourth branch of government — at the federal level. Philip Hamburger of Columbia Law School argues in his book, Is Administrative Law Unlawful?, that "almost all government agencies, ranging from the IRS to the FDA, attempt to bind Americans through administrative rules and adjudications–that is, not through law, but through extralegal edicts." He describes an administrative state in which “agencies frequently strain their powers beyond their delegated authority, and thus, even if delegation really could justify administrative power, it often does not justify it in particular instances.”

Thankfully, Mr. Hamburger is describing Washington D.C., and not Texas. Gov. Abbott would like to keep it that way. His letter to agency heads does not indicate that his approval is required or that he might try to “veto” proposed rules, as Rep. Cook speculates. The face of the letter indicates that the governor’s office wants to be aware of what state agencies are doing with respect to rulemaking. To me, it looks a lot like he’s protecting the Legislature’s turf.

Disclosure: Baylor University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

Russell Withers

General counsel and policy analyst, Texas Conservative Coalition Research Institute