87th LegislatureState SenateExpansion of Legislative Checks on Governor During Disasters Gets Bipartisan Support in Texas Senate

Authored by nearly half of the Texas Senate, a proposed constitutional amendment would require legislative approval for extending disaster declarations.
March 5, 2021
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With the proposition of a new constitutional amendment and enabling legislation from state Sen. Brian Birdwell (R-Granbury) and 14 other joint authors, appetite appears to be growing in the upper chamber for increased checks on the executive branch during disasters like the pandemic.

If passed by the legislature and approved by voters, the measure would require the legislature to approve the renewal of a disaster declaration beyond a 30-day limit imposed on the governor.

Under the authority of the Texas Disaster Act, Governor Greg Abbott has renewed the COVID-19 disaster declaration for the past year, giving him the authority to issue executive orders including the mask mandate that he recently announced he would be lifting.

But because the legislature cannot convene itself except for 140 days every other year, the first branch of government in the Texas constitution could not have any say in the matter until January.

“When out of session, the legislature’s prerogative factors into disaster planning only to the extent permitted by the governor,” said Birdwell in a press release.

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He added, “These pieces of legislation institute the legislative check originally contemplated by the disaster act without unnecessarily encumbering the governor’s response to more routinely recurring disasters that do not affect a substantial number of citizens of the state.”

Birdwell’s constitutional amendment, Senate Joint Resolution (SJR) 45, would require the governor to convene the legislature in a special session in order to renew any disaster that covers at least two-fifths of the state’s counties, half of the population, or two-thirds of counties in three or more of the state’s trauma service areas.

During that special session, the legislature could renew or extend the state of disaster, pass laws and resolutions related to the disaster, and “consider any other subject stated in the Governor’s proclamation convening the Legislature.”

The amendment would also prohibit the governor from vetoing any decision to terminate the disaster declaration and allow a lawmaker to file a suit against the governor directly with the Supreme Court of Texas in case the legislature is not convened.

If SJR 45 is passed by the legislature, Texans would need to vote in favor of it in November before it could become law.

Birdwell and his colleagues also filed enabling legislation for the constitutional amendment, Senate Bill (SB) 1025.

Only effective if passed by the legislature and if voters approve SJR 45 in the fall, the enabling legislation is a supplemental bill that would amend the Texas Disaster Act to clarify the powers of the legislature during a disaster.

Though the Texas constitution already gives the sole authority of suspending laws to the legislature, the bill would clarify that only the legislature would be authorized to “suspend a provision in the Code of Criminal Procedure, Election Code, or Penal Code to appropriately respond to the disaster.”

Furthermore, it states that only the legislature could “restrict or impair the operation or occupancy of businesses or places of worship in this state by category or region to appropriately respond to the disaster.”

Reiterating that only the legislative branch can renew a disaster declaration, the bill would also amend the Texas Disaster Act to specify that the governor could not “declare a new state of disaster based on the same or substantially similar findings” as a preceding order.

Similar amendments to the Texas constitution have been proposed by lawmakers, but so far in the slow-paced legislative session, Birdwell’s legislation has received the most support from other lawmakers.

Eleven Republicans and three Democrats joined Birdwell in authoring SJR 45 and SB 1025: Sens. Paul Bettencourt (R-Houston), Cesar Blanco (D-El Paso), Dawn Buckingham (R-Lakeway), Donna Campbell (R-New Braunfels), Brandon Creighton (R-Conroe), Bob Hall (R-Edgewood), Lois Kolkhorst (R-Brenham), Robert Nichols (R-Jacksonville), Angela Paxton (R-McKinney), Charles Perry (R-Lubbock), Beverly Powell (D-Burleson), Charles Schwertner (R-Georgetown), Drew Springer (R-Muenster), and John Whitmire (D-Houston).

“I’m honored to have fourteen joint authors on my legislation. In the weeks ahead, I look forward to working with my Senate and House colleagues to get this legislation passed and to put the constitutional amendment in front of the voters in November,” said Birdwell.

Notably, though many more Republicans were coauthors, Blanco, Powell, and Whitmire are not the first Democrats to push for a constitutional amendment that would expand the likelihood of a special session as a check on the governor.

Sen. Nathan Johnson (D-Dallas) — with Rep. Rafael Anchia (D-Dallas) filing a companion in the Texas House of Representatives — proposed a constitutional amendment that would allow two-thirds of each chamber to petition for a special session “for the purpose of responding to a fiscal crisis, war, natural disaster, or emergency.”

Likewise, Sen. Sarah Eckhardt (D-Austin) proposed a constitutional amendment that would permit the speaker of the house and the lieutenant governor “by joint proclamation convene the legislature in special session.”

The other similar constitutional amendment was filed by Springer and would require the governor to convene a special session if a disaster declaration extends beyond 21 days or if two-thirds of each chamber petitions for a review of the state of disaster or emergency.

The recent traction in the Senate with Birdwell’s legislation comes on the heels of House Speaker Dade Phelan (R-Beaumont) prioritizing House Bill (HB) 3 from Rep. Dustin Burrows (R-Lubbock), which would outline how the government is to respond specifically to a pandemic.

Though there is little overlap — and Springer, who joint-authored SJR 45, has sung praises of it — HB 3 contrasts with Birdwell’s legislation in that the former does not create any new checks and balances between the legislative and executive branches.

It remains to be seen whether the legislature will successfully pursue increased checks on the governor or pass a pandemic bill that sidesteps touching on legislative oversight — or it is quite possible that lawmakers may accomplish neither option or both.

To date, a companion bill for HB 3 has not been filed in the Senate, nor has Birdwell’s legislation yet been brought to the House.

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Daniel Friend

Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.