Abbott's bid to review rules is questioned
Some doubt governor can formally insert office in rule-making process.
A Republican leader in the Texas House is questioning the wisdom of a new policy, revealed in late June, that requires two dozen state regulatory agencies to send all proposed rules and regulations to Gov. Greg Abbott’s office to be reviewed before they’re disclosed to the public.
In a letter sent Monday to Abbott, state Rep. Byron Cook — chairman of the House committee that oversees the governor’s office — asked Abbott for more details about the directive, saying some lawmakers have questioned whether the governor has the authority to formally insert his office into the state’s rule-making process.
Cook also said the review process could introduce a bureaucratic logjam for hundreds of proposed rules, adding that he was told only one person in Abbott’s office
is responsible for reviewing the proposed regulations.
“It is important to underscore that nothing in our state’s constitution or statutes gives the Office of the Governor the power to veto or delay the proposal of a rule, whether by act or omission,” wrote Cook, a Republican from Corsicana who did not seek re-election and is in the final five months of a 16-year career in the House.
An Abbott spokeswoman said the policy “is well within” the governor’s authority as established by the Texas Constitution.
“As the chief executive of the state, Gov. Abbott has a constitutional duty to faithfully execute the law and ensure that all state agencies under his direction approach the regulatory process in adherence with these laws as written and passed by the Legislature,” spokeswoman Ciara Matthews said.
“Additionally, a preliminary review of proposed rules and regulations allows for a thorough assessment of the effectiveness, cost, benefit or potential harm these ideas might have on the state as required by law,” Matthews said in a written statement.
Proposed rules, published weekly, are frequently the result of new state laws and can range from the controversial to the mundane. Regulations published June 1, for example, included heightened sanctions against low-performing schools and a rule clarifying when property “for sale” signs are considered an advertisement.
‘Eliminate redundancies’
Abbott has not publicly discussed the directive, but the governor frequently praises the state’s light regulatory footprint as a primary reason for Texas’ strong economy and its ability to attract new businesses and residents.
The three-paragraph letter from Luis Saenz, Abbott’s chief of staff, directs the agencies to submit all proposed rules and regulations to Abbott’s office for review before they are published in the Texas Register, a weekly compilation of state business.
Publication initiates a public-comment period that must take place before a final version of the regulations are published prior to enforcement.
The June 22 letter gave no reasons for the policy change beyond noting that U.S. presidents have reviewed new regulations since 1981 “to coordinate policy among agencies, eliminate redundancies and inefficiencies, and provide a dispassionate second opinion on the costs and benefits of proposed agency actions.”
“In light of the success of regulatory review at the federal level, Gov. Abbott is clarifying the process for review of new rules proposed by state agencies,” Saenz wrote in the letter.
The letter was not sent to agencies run by elected officials but to more than two dozen boards and commissions overseen by the governor. The letter directed agencies to include an economic-impact statement, cost estimate and cost-benefit analysis.
Cook told the American-Statesman that he sees the potential for problems.
“Think of the scale of this thing. So one person in the governor’s office is going to suddenly be reviewing hundreds of proposed rule changes in any given month?” Cook said. “I don’t know how one person can do it, how one person can be an expert on all the different rules that can be changed, and how you can do that in a timely fashion.”
In late July, the Statesman asked the governor’s office to provide copies of correspondence to and from the state agencies regarding the review process. The request, made under the Texas Public Information Act, is still under review, with Abbott’s office arguing that the information is exempt from public release because of attorney-client privilege and because the documents include information about the deliberative process behind a policy that is not yet final.
Attorney General Ken Paxton’s office is reviewing the Statesman’s request and Abbott’s response, as required by the open-records law.
Power grab?
Baylor Law professor Ron Beal, who has studied and written about the state’s rule-making process, said Abbott is making an unprecedented bid to increase the power of Texas governors.
“He’s trying to do what no governor before has tried to do: control rule-making, which is a very significant power. If an agency lawfully adopts a rule, that rule has the force and effect of a statute, so it’s a lot of power,” Beal said. “He is setting it up for direct intervention as to what rules are getting adopted.”
When a rule or regulation is proposed in the Texas Register, public comments are part of the public record. But Abbott wants to have a say over the regulations before that process begins, Beal said, adding, “I think there’s a big potential for abuse.”
“He wants to see them before notice and comment starts. If he tells an agency, ‘Don’t adopt or change a rule,’ no one will ever know,” said Beal, a frequent critic of Abbott who also is the author of the two-volume “Texas Administrative Practice and Procedures.”
While state law is silent on Abbott’s right to review proposed rules before they’re published, a Texas Supreme Court ruling from the 1800s appears to support the governor’s initiative — to a point, Beal said. According to the court, a Texas governor has the right to request or order agency officers to do something under the constitutional power to faithfully execute the law, “but — and this is a big but — the officers don’t have to comply,” Beal said.
“I think Abbott clearly has the authority to say, ‘I want to get involved in the rule-making process, and I want to advise you in the process,’” he said. “I think he can absolutely do that, but I think every one of these agencies can all say no. And he couldn’t do anything about it.”
At least, not immediately, Beal said. Agency heads who refuse to comply cannot be fired by Abbott — only the Legislature has that power — but the governor could choose not to reappoint agency leaders when their two- or six-year terms expire, he said.