What Vetoing Article X Really Means for the Texas Legislature

What exactly is Article X, and why did Gov. Abbott veto it?

Article X of the state budget, the General Appropriations Act, funds the legislative branch. This includes all the staff of state Senate and House of Representatives offices, as well as nonpartisan agencies that do the day-to-day, year-round work of the legislative branch of state government. 

On May 31, the last day of the regular session, the governor tweeted, “I will veto Article 10 of the budget passed by the Legislature. Article 10 funds the legislative branch. No pay for those who abandon their responsibilities.” This was his response to the quorum break by House Democrats a day earlier that ran out the clock on his priority bills to change elections and the bail system. 

The June 18 veto proclamation issued a few weeks later gave a similar reason for the governor’s line-item vetoes: “Funding should not be provided for those who quit their job early.” However, a June 25 statement by the governor’s office said “the Constitution protects the legislative branch, and as the Democrats well know, their positions, their powers, and their salaries are protected by the Constitution. They can continue to legislate despite the veto.” 

Some Capitol watchers labeled it an empty threat, as legislators’ $600 monthly pay and per diem are constitutionally required and therefore unaffected. Besides, the governor would be breaking with a long-standing tradition of mutual noninterference where Article X and the governor’s office budget are concerned.

If salaries are constitutionally protected, what’s the point of the veto?

The highlighted language above indicates the governor’s awareness that his veto did not, in fact, affect the pay of House members who broke quorum, making his stated reasons for the veto either completely nonsensical or a threat to hold hostage more than 2,300 dedicated, hard-working state employees whose salaries are funded by Article X. It is unclear how Representatives, whether Democrat or Republican, “can continue to legislate” with no support staff whatsoever. The veto does include the Legislative Council lawyers who draft bills; the Legislative Budget Board staff, who prepare cost estimates for proposed legislation; and the House, Senate, and other Capitol staff who carry out all the work needed for public committee hearings, floor deliberations, and other essential activities to take place. 

That sounds awful for those 2,300 employees. But does this impact people who don’t work for and with legislators?

Yes! This has the potential to impact all Texans. The implications of a functioning democracy can’t be overstated. If the governor cancels the funding of the Legislature every time he doesn’t get his way, the underlying principles of co-equal branches and checks and balances that are the building blocks of democracy are destroyed. If the Legislature had provided absolutely no funding for the governor or Supreme Court, all sorts of crucial responsibilities of those state officials would have been endangered. 

Without funding, House and Senate staff cannot provide constituent services and help folks navigate state agencies or be the people’s advocate. The ability of legislators to enact laws becomes nearly impossible. In the short term, this includes deciding how to spend the federal funds, redistricting, and the 13th check for retired teachers, but in the long term it includes everything from school finance to health care to highway funding. Lawmaking impacts every facet of our lives, and a non-functioning Legislature would be a failed state.

How did we get here? How is the state government supposed to work?

The Texas Constitution calls for three branches of government: an executive branch headed by an elected governor; the legislative branch, including elected members of the Senate and House of Representatives; and a judiciary branch, headed by elected members of the State Supreme Court. Only the Legislature and the Constitution itself can create “appropriations” — the legal permission needed for money to be taken out of the State Treasury. 

The governor can veto specific items that the Legislature has included in the budget. Under some circumstances, he can also transfer money from one appropriation to another. But when the governor vetoes almost all the funds intended for the continued, normal functioning of legislative agencies, and says he will call special session after special session until all of his priorities are addressed, he directly violates the checks and balances between the three branches of state government. 

Threatening the legislative branch with the possibility that funding for all staff and office expenses could suddenly run out also discourages anyone who isn’t independently wealthy from working for the legislative branch. 

What is the way out of this mess?

The Texas Supreme Court could have ruled that the governor’s line-item veto of Article X is unconstitutional and invalidated the veto, restoring legislative branch funding. Instead, on August 9, the Court declined to rule on the issue, saying that as long as the governor was calling special sessions and including Article X funding on the agenda, it was within the Legislature’s power to resolve the issue. Notably, the Court’s opinion did say, “had the governor refused to include Article X funding in the special session call — or refused to do so until the Legislature enacted legislation of his choosing — the tension between the branches would be more pronounced, and the burden on the separation of powers more severe.” 

The Legislature, with the needed quorum present, can approve another appropriations bill for Article X agencies, but the governor must first (1) call them into special session, and (2) specifically put that item on the agenda. If the House and Senate passed such a bill early enough in a special called session, they would have enough time to override another potential veto by the governor.

Is there any Article X funding available?

The 2022-2023 state budget provided $410 million in funding for legislative agencies. All but $94 million was vetoed by the governor. He also vetoed legislative agencies’ ability to carry over any unused funding that they might have had by the end of this fiscal year (August 31). That amount was estimated at somewhere between $40 to $50 million. 

Initially, September 1st was seen as the deadline after which legislative agencies would lose all existing and newly authorized funding (except employee benefit costs). However, August 20th had been identified as an earlier potential deadline, because of the lead time needed by the State Comptroller to process payments and legal obligations incurred by legislative agencies before state fiscal year 2021 ended. 

Then, on August 6th, the afternoon before the Second Called Session started, the governor approved an emergency proposal by the Legislative Budget Board that continues funding through September 30 by transferring $13 million from the budget of the state prison system. The transfer cited the authority provided by Chapter 317 of the Texas Government Code, which allows for what’s called “budget execution” when the Legislature is not in regular or special session.

What happens if funding is not restored beyond September 30?

Funding can be continued by the Legislature — ideally, through August 2023 with another appropriations bill that isn’t vetoed, or by the governor himself — who can continue to approve transfers proposed by the Legislative Budget Board (LBB), as he did on August 6th. (The Government Code also allows the governor to initiate such a proposal, which the LBB would then approve.) Either one of these options creates the legal authority needed for legislative staff to get paid and for any other legislative expenses to be funded with general revenue. Some legislators could pay staff through their campaign funds, but this is not an option for staff who don’t work directly for a state senator or representative. Some House and Senate staff could presumably volunteer without pay, but a break in employment could endanger any benefits (for example, overtime leave) they had earned. Legislative elected officials will continue to receive their $600/month salaries and per diem while in session because it is constitutionally protected. 

Sen. Seliger filed a resolution in the First Called Session to amend the Texas Constitution and remove the governor’s line-item veto power completely. That or a scaled-down proposal — to prevent a line-item veto of the legislative or judiciary branch budgets — could prevent this situation altogether in the future, but it cannot go to the voters until it passes the House and Senate in a regular session. Future legislatures could also consider appropriating money for Article X agencies in a bill separate from the rest of the state budget so that it could go to the governor in plenty of time to override any vetoes.

Bottom line: playing political games should not be done with an entire branch of government. The veto turned a tough political situation into a constitutional crisis that may result in hundreds of true public servants losing their paychecks or choosing to find other jobs where they won’t be used as pawns. The clerks, cleaning staff, and administrative staff did not instigate this battle, and the governor crossed the line by using them as collateral damage. 

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