Updated: May 14, 2020
It is time that we talked about executive orders in Texas. What is a legitimate executive order under our Texas Constitution and what is not?
Governor Abbott has been issuing executive orders (numbering 22 as of today) related to the COVID-19 scare, and has cited the Texas Disaster Act, passed in 1975, as his authorization for the issuance of such.
So what executive orders are lawful in Texas and what are not?
Most fundamentally, what executive orders are unconstitutional and what executive orders are constitutional?
In our system of government, an executive order used to communicate to the employees of the executive branch what policy or procedures to use in implementing the laws is perfectly legitimate and part of good governance. Executive orders can also be used to exercise discretion over powers delegated by the legislature to the executive under certain conditions. For example, the legislature authorizes the governor to use an executive order to declare a state of emergency when he deems the circumstances appropriate according to law.
What is not legitimate use of executive orders under our Texas Constitution is the definition of a new prohibited act that is prohibited by criminal penalty. Such action is the quintessential role of the legislature.
Article 2, Section 1 of the Texas Constitution says:
SEPARATION OF POWERS OF GOVERNMENT AMONG THREE DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
In implementing this strongly worded provision, the Texas framers of 1876 surely had James Madison’s idea about the reason for separation of powers in mind:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
If an executive can create a definition of an act having the “force of law” that invokes criminal penalties, the executive that creates them is issuing illegitimate, unlawful, null and void dictates or edicts, not law. Under the Texas Constitution, only the legislature can create law.
It is common wisdom taught in many schools in Texas that the governorship in Texas is weak. That wisdom also says the excesses of the Republican governors installed by the occupying U.S. Army during Reconstruction, especially by the last Reconstruction Republican governor, E.J. Davis, that caused the framers of the current Texas Constitution, created in in 1876, to reduce the powers of the governor.
One of the most significant changes in the 1876 Constitution was the change in the habeas corpus provision that previously had been modeled after the U.S. Constitution, allowing the suspension of habeas corpus for rebellion or invasion. The 1876 Constitution that we live under in Texas today has no exceptions of any kind to the speedy and effectual application of the writ of habeas corpus.
And the 1876 framers also kept this provision of previous Texas Bills of Rights:
Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
Given all this, does anyone seriously think that the framers of the 1876 Texas Constitution ever thought that a Texas governor would be allowed to create executive orders to force people by criminal penalty to stop earning a living, peaceably assembling, or presuming everyone without proof or process to be guilty of threatening others and therefore having their liberty denied?
So what kind of executive order does the Texas Disaster Act allow? The ones that communicate proper policy or procedure to executive branch employees or allow triggering of certain powers upon certain conditions? Or the executive orders that usurp the legislative function?
The Texas Disaster Act is codified in the Texas Government Code, Chapter 418. The section that the governor has been citing in his COVID-19 orders was not added to the code until 1987. It says:
Sec. 418.012. EXECUTIVE ORDERS. Under this chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations have the force and effect of law.
The Texas legislature created a whole chapter in the Texas Government Code called the “Code Construction Act.” Its purpose is to aid the judiciary and others in determining the meaning of statutes when there is a question about meaning. In Section 311.021 of that code, we find the following guidance:
"In enacting a statute, it is presumed that . . . compliance with the constitutions of this state and the United States is intended."
Given the prohibition on lawmaking by the executive in Article 2, Section 1 and the code construction act’s guidance, we have to conclude that the Texas Disaster Act is not intended to allow the governor to legislate/dictate the way he has with his COVID-19 orders.
Section 418.041 creates the Texas Division of Emergency Management and in 418.042 tasks the division with preparing “a comprehensive emergency management plan.” It later says, “All or part of the state emergency management plan may be incorporated into regulations of the division or executive orders that have the force and effect of law.”
In another section of Chapter 418, we find that there are criminal penalties for violating the plan:
Sec. 418.173. PENALTY FOR VIOLATION OF EMERGENCY MANAGEMENT PLAN.
(a) A state, local, or interjurisdictional emergency management plan may provide that failure to comply with the plan or with a rule, order, or ordinance adopted under the plan is an offense.
(b) The plan may prescribe a punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.
In other words, according to the statute, the governor may implement the emergency management plan by executive order if he so chooses.
What the statute does NOT say is that all of the governor’s executive orders may be implemented by the threat of criminal punishment. Only orders implementing the plan developed by the TDEM can do so.
Yet, in Governor Abbott’s 18th executive order (GA-18) and others, he improperly conflated his executive order authority and the criminal penalties for violating the emergency management plan by saying:
"under Section 418.173, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement."
After the governor saw the beginning of the implementation of his orders via criminal (and civil) enforcement that were leading to jail for Texans who just wanted to earn an honest living by providing needed, honest services, he back-pedaled. In GA-22, saying:
“No jurisdiction can confine a person in jail as a penalty for violating any executive order, or any order issued by local officials, in response to the COVID-19 disaster.”
That still begs the question about the legitimacy of the use of fines to enforce his orders. Remember that the people most likely to be fined under his orders are those who have been impoverished by his edicts. Is the governor planning to put the government in the line of creditors for the thousands of bankruptcies coming to small business in Texas? Does he realize that the Texas Constitution also prohibits imprisonment for debt? Does he realize that you can’t get blood out of a turnip?
Texans need to do two things. We need to throw off the remaining unlawful and unconstitutional edicts by the governor and get back to work using our own judgment about the risk we are individually willing to take. And, we need to take action in many ways to make sure that we never allow such usurpatious edicts to destroy the liberty and prosperity of Texans ever again.
Tom Glass lives in Northwest Harris County. Click here to reach his email. He is also on Facebook as Tom G Glass. He leads a group called Texas Constitutional Enforcement which can be explored at its website or Facebook group.