Texplainer: Can the Lege Override a Veto After the Session Ends?

Texplainer

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Hey, Texplainer: Can the Lege override a governor's veto after a regular session has ended?  

The governor of Texas is the only person with the constitutional authority to veto a bill passed by the state House and the Senate. That authority can be used within 10 days after legislation reaches the governor’s desk during the regular session, or within 20 days of the Legislature’s adjournment. This year, the veto deadline is June 19.

If the governor uses the red stamp during the session, then he or she is required to send that bill, including his or her objections, to the chamber in which the bill originated. Legislators can override the chief executive’s veto with a two-thirds vote in each chamber. If the governor's veto happens after lawmakers adjourn sine die, the bill is sent to the secretary of state, where it essentially dies and never becomes law.

This year, there are some questions about whether lawmakers might be able to override Gov. Rick Perry’s May 31 veto of HB 2403, a bill that would have allowed the state to collect online sales taxes (from retailers like Amazon). After all, they never had a break and started a special session the day right after the regular session ended.

The question is open to interpretation, but officials in the governor’s office tell the Tribune they do not believe the Legislature can defy Perry’s veto during this special session. Why? The officials say the bill was filed and passed during the regular session. Since that regular session is over, the governor sent the vetoed measure straight to the secretary of state’s office rather than the House, where the bill was created. In a special session, lawmakers can only vote on issues that are included in the governor’s call. In this case, Perry sets the agenda, and lawmakers can’t address issues he leaves out of the call.  

Hugh L. Brady, director of the Legislative Lawyering Clinic at the University of Texas School of Law and author of Texas House Practice, which is considered the authoritative text on House Rules, said the issue is murkier. 

“I don’t think anybody knows what the answer is," Brady said. "I’ve looked at it.” In his view, the state Constitution is clear only in that the Legislature may not override a veto if it is not in session — it doesn't specify whether legislators can only override a veto in the session in which the bill originated.  

“Anybody who says they know the answer probably doesn’t know what they’re talking about," he said. "Nobody really knows.”

But a 1990 report from the Texas Legislative Council, the nonpartisan legislative agency that helps draft bills and provides guidance to the Legislature and state agencies, considered the question and concluded that the Lege does not appear to have the authority to override a veto of a bill passed in a previous session.

"Since the Texas Constitution does not affirmatively grant the legislature the authority to reconsider post-adjournment vetoes at a subsequent session," it wrote in the report, "it appears that the legislature does not have the power to reconsider and override the governor's veto of a bill passed during an immediately preceding session. A strong argument could be made that such legislative action would be unconstitutional."

Bottom line: A real stumper, but it would appear that the governor's view is most likely correct: The Legislature cannot overrule his veto of legislation passed during the regular session once the session is over. And should the Lege do so in this special session, you can bet your Kindle that Amazon will challenge it in court. 

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