Is acting governor rule out of date?
Provision seems unnecessary due to technology, high-speed travel
AUSTIN — Lt. Gov. Dan Patrick, long rumored to be interested in Texas’ top job, has tried on the title more than 40 times since taking office last year.
He’s not muscling in on Gov. Greg Abbott, whom he has said he’ll never challenge.
Instead, Patrick serves as acting governor when Abbott is out of state because the Texas Constitution requires the designation. When both are out of state, the Senate president pro tem is acting governor.
The constitutional provision, which dates back to 1845, can look like an unnecessary relic of the days before technology and high-speed travel.
But the issue of whether it’s important to have an acting governor within Texas at all times divides experts, former governors and others close to the process.
“You absolutely need the provision,” said Sen. Kevin Eltife, R-Tyler, who as Senate president pro tem has been acting governor more than seven days under Abbott and noted that two executions took place under his watch.
“Even in this day and age of technology — and we can get the governor back to the state very quickly — you still need someone in the position.”
Former Gov. Mark White agreed, and Patrick’s chief of staff said the provision works well. Former Gov. Rick Perry, however, advised doing away with it when he was in office.
Patrick hasn’t presided over an execution as acting governor, but he held the title during a tragedy that made national headlines — the slaying of Dallas officers by a sniper in July. Patrick rushed to the stricken city that night, and the next day, he ordered Texas flags to be flown at half-staff to honor the fallen officers.
Abbott, who was in Wyoming on a family vacation, was quickly briefed. He cut short his trip to return to Texas the day after the shooting, despite having been scalded by hot water in an accident. ‘Definitely outdated’
After returning to Texas, Abbott took part in a Dallas news conference, did national interviews and had a telephone call with President Obama. Several days after his return, he was admitted to San Antonio Military Medical Center, also known as Brooke Army Medical Center, and underwent skin grafts for burns on his feet.
Rice University political scientist Mark Jones, calling the acting-governor provision a good candidate for a constitutional cleanup, said the flag order is an example of the “weird dynamic” it creates.
“Greg Abbott could have made that decision from outside the state just easily as Dan Patrick could make it from inside the state,” Jones said.
University of Texas Law School professor Sanford Levinson called the provision “definitely outdated.”
“Presidents go literally thousands and thousands of miles away, and they continue to be president, and have all the power of the presidency,” Levinson said. “If we don’t find that problematic, then why is it problematic for a governor to be in New Orleans or wherever he or she might be rather than in Austin?”
University of Texas political scientist Bruce Buchanan, however, said the possibility of a crisis warrants the constitutional provision.
“I think there needs to be an acting governor on the ground in case more needs to be done than somebody can do via telephone or other communication from afar,” he said.
Along with the constitutional charge to “exercise the powers and authority” of the governor’s office, the title comes with a boost in pay. Patrick has been paid $17,334 as acting governor since January 2015, according to state records, covering 41 days and part of another. Eltife had been paid another $3,050, according to the records, covering seven days and part of an eighth.
The pay for a day as acting governor is $421, reflecting the governor’s annual salary, which tops $153,000. Patrick and Eltife otherwise get the legislative salary of $7,200 a year.
George W. Bush, who ran for president while Texas governor, didn’t take his gubernatorial salary when he was out-of-state campaigning. Abbott’s office didn’t respond when asked if Abbott has ever skipped his pay.
Perry told the San Antonio Express-News af- ter his first failed White House run that he’d like to do away with the constitutional provision.
“I’d change the constitution,” Perry said in the 2012 interview. “You don’t need to switch powers over. When the president of the United States leaves the country, he’s still the president. The vice president doesn’t go, ‘All right everybody. I’m in charge now.’”
Perry, who didn’t respond to a request for comment last week, was out of state for 81 days in 2011. He left Texas for 72 days — and for part of another 10 days — in his last full year in office in 2014, before his second White House run in 2015. From 2010 until he left office in January 2015, the cost of paying an acting governor totaled more than $107,000.
Amending the constitution would require a twothirds vote of the Legislature and Texans’ approval on a statewide ballot. No one has taken up Perry’s proposal.
“There’s not much political capital to be gained from trying to shepherd this,” Jones said. “All other things being equal, the lieutenant governor is probably not going to look all that favorably on it, and neither is the president pro tem.” Not broken; Don’t fix it
28 other states have provisions in which the lieutenant governor serves as acting governor when the governor is out of state. Arkansas voters in November will decide whether to do away with their provision.
Like the governors before him, Abbott travels for state business, political appearances and personal trips. Abbott didn’t respond to a request for comment about the constitutional provision.
Eltife was acting governor during the executions of convicted murderers Raphael Holiday on Nov. 18 and Richard Masterson on Jan. 20. He said Abbott’s office detailed the facts of the cases ahead of time and that both men had exhausted their appeals, making it unlikely any action would be needed.
Still, an execution has been stayed in the past by an acting governor. Sen. Rodney Ellis, D-Houston, was filling in for then-Gov. Bush in 2000 when death row inmate Ricky McGinn sought a delay to allow for DNA testing. Bush agreed that Ellis should grant the 30-day stay; the testing ended up proving McGinn’s guilt.
Eltife said he views himself as a “caretaker” when he is acting governor, but that it’s a necessary designation in case there’s an emergency and the governor can’t take a call or quickly get back to Texas.
Former Gov. White agreed. “You might say, well, we’ve got great technology, but there’s a lot to be said for boots on the ground and eyes on the problem,” White said. “It’s not broken. … Let it operate.”
In the case of the July 7 shooting, Abbott’s staff said he was quickly alerted and kept abreast of developments, and that his office and Patrick’s were in close communication. Spence said Patrick coordinated his trip to Dallas with the governor’s office.
Frederick Frazier, of the Dallas Police Association, said it was “extremely important” for Patrick to be on the scene.
“He came there leading from the front. He wanted to know what was going on. You can’t figure that out on a phone call,” Frazier said.