Texplainer: Is the AG Legally Required to Defend a State Law?

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Hey, Texplainer: Could Texas Attorney General Greg Abbott choose not to defend a state law? 

Last week, Fort Worth state Sen. Wendy Davis, a Democratic gubernatorial candidate, criticized Republican attorney general Greg Abbott, who is also running for governor, for defending in court the state’s $5.4 billion budget cuts to public schools.

Davis, an advocate of increased public education funding, slammed Abbott for representing the state against a lawsuit filed by more than 150 school districts as a result of cuts to public education enacted by the Legislature in 2011. The coalition of school districts claims the state’s school finance system and the Legislature’s cuts violated the Texas Constitution, which mandates that schools be funded appropriately.

While some of this funding was restored in this year’s legislative session, Abbott is expected to continue defending the state against the lawsuit. Court hearings are set to begin early next year.

In response to Davis’ challenge, Abbott said he defended the state’s laws as he’s required to do as Texas' chief legal officer.

The Texas Constitution charges the attorney general, the state's top lawyer, with defending state laws and the state’s constitution. The attorney general is also charged with representing the state in litigation that challenges state laws or in lawsuits against state agencies or state employees, according to the attorney general's office website.

Lauren Bean, a spokeswoman for the attorney general's office, said the elected officer is obligated to defend the state and its laws and cannot “pick and choose” which ones he or she is willing to defend based on political views.

"The AG is not empowered to second-guess the wisdom or policy implications of a duly enacted Texas law," Bean said.

Bean said that the state's founders "did not envision a state where the AG could simply collude with a handful of litigants who might oppose a given state law and then unilaterally undo a statute that was duly enacted by the Legislature and signed by the Governor."

Texas Constitution expert Brandon Rottinghaus, a political scientist at the University of Houston, agreed with the attorney general’s office and said the constitution does not allow the attorney general “any mechanism for noncompliance” when it comes to his or her role in defending the state. But the constitution is vague and provides a “tremendous amount of discretion," Rottinghaus added.

“There’s all sorts of different ways the law is unclear,” Rottinghaus said, adding that the state constitution allows the attorney general to choose how “effectively” to defend a law.

Had Abbott chosen not to defend the law or to not defend it aggressively, it wouldn’t have been unprecedented. Jim Mattox, who served as attorney general from 1983 to 1991, withdrew an appeal in the U.S. 5th Circuit Court of Appeals that his predecessor had filed after Texas’ anti-sodomy law was deemed unconstitutional. Mattox refused to continue with his office's defense of the anti-sodomy law because Mattox also believed it was unconstitutional.

Rottinghaus said that was an example of the discretion an attorney general can exercise in fulfilling the minimal legal responsibility of the office.

“They have a lot of authority to aggressively pursue something or moderately pursue something,” Rottinghaus said. “The difference between that is a political choice.”

The cuts to education could become a more prevalent issue in the general election, when Davis and Abbott are expected to face off as the nominees for their respective parties.

Before her famed filibuster against abortion regulation, Davis filibustered proposed education cuts in 2011. It’s an issue Davis emphasized in her campaign from the start. During the speech announcing her candidacy, Davis mentioned the education filibuster, and not the abortion filibuster that catapulted her to the national spotlight.

The education funding questions come on the heels of Abbott’s recently launched education policy proposals. He spent last week touring the state promoting his proposals during a series of roundtable conversations with local educators. While in San Antonio on Wednesday, Abbott declined to criticize the cuts enacted by the Legislature and said his responsibilities as attorney general prevented him from commenting on whether current funding to public education is sufficient.

Bottom line: The state’s attorney general is charged with defending state laws and cannot choose whether to defend a law that the Texas Legislature enacts if it is challenged in court. But he or she has some discretion over how aggressively to defend a law.

Got a question for Texplainer? Email us at texplainer@texastribune.org.