Attorney General's Office: Abbott's Budget Vetoes Should Stand

Gov. Greg Abbott was well within his powers when he vetoed more than $200 million in funds approved by the Texas Legislature this year, Texas Attorney General Ken Paxton’s office wrote in an opinion issued Monday.

Abbott’s line-item vetoes have been part of a political tug-of-war since July, when the state’s Legislative Budget Board argued that Abbott had overstepped his authority because the vetoes targeted budget riders — directives to state agencies that are included in the budget but do not actually make any appropriations. The budget board cited previous court opinions to contend that a governor has the power to veto appropriations, but not riders. Abbott’s office claimed “unelected bureaucrats” were interfering with the governor’s constitutional power to strike spending items from the budget.

The debate threw into limbo $227.6 million in spending in a $209.4 billion two-year state budget. Comptroller Glenn Hegar, the state’s chief financial officer, announced in August that he would hold off on awarding the vetoed funding and that he was requesting that Paxton's office settle the issue. Paxton recused himself, explaining in a letter released with the opinion that “some of the questions to be addressed may raise actual or perceived conflicts of interest for the Attorney General and his staff." 

The nonbinding opinion, written by First Assistant Attorney General Chip Roy, has the potential to shore up the governor's power over the budget-writing process if Roy's interpretation ultimately held up in a court of law.

“The provisions vetoed by the Governor each designate a specific purpose and the amount to be used therefor, and they are items of appropriations subject to the Governor’s veto” Roy wrote.

Abbott's office praised the opinion Monday evening.

“The Attorney General’s opinion upholds the governor’s constitutional authority to limit unnecessary spending and ensure fiscal solvency,” spokesman John Wittman said.

The Budget Board is co-chaired by Lt. Gov. Dan Patrick and House Speaker Joe Straus, and its members include the chairs of the House Appropriations and Senate Finance committees who write the budget. Like Abbott, Patrick also publicly criticized the board’s argument — so much so that he wanted a special committee to review the budget board and other legislative agencies. Email traffic between his office, the board and the House speaker’s office made it clear that a top Patrick aide had seen the board document in advance and approved sending it to Hegar.

The vetoes covered funding for projects at several state agencies and higher education institutions.

The largest funding item at issue was for $132 million from the Texas Facilities Commission’s budget to build a state office building in San Antonio to replace the G.J. Sutton State Complex. State Rep. Trey Martinez Fischer, D-San Antonio, has previously urged the city of San Antonio to consider legally challenging Abbott's veto, noting that the new building is expected to play a key role in the revitalization of the city’s East Side area.

Roy left some wiggle room for Hegar and the Legislature’s budget writers to potentially fund some of the projects, depending on how the rest of a state agency’s budget was written.

“If additional funds apart from what was vetoed by the Governor are available, and if authority outside of the veto permits expenditure of those funds for a given purpose, an agency is likely authorized to spend its other funds accordingly,” Roy wrote.

Roy’s opinion also leaves unanswered how some of the vetoes will be implemented, such as $386,000 in the Texas Education Agency’s budget meant for the Southern Regional Education Board, a nonprofit that helps states develop education policies. Abbott has boasted that he vetoed the funding because it was to be used "to finance the promotion of Common Core," a charge the board has denied. Roy’s opinion lets Abbott’s veto stand but directs “the Comptroller in consultation with the Texas Education Agency and the Legislative Budget Board” to determine what part of the agency’s budget should have to absorb the cut in funds.