Most governors have broad authority to nominate officials to serve in state executive branch positions—many of whom will be included in the governor’s advisory committee, known as the “cabinet.” Governors may be empowered as well to make appointments to state judgeships. Frequently, these appointments are subject to confirmation by one or both houses of the state legislature. While often pro forma in nature, the confirmation process with respect to executive branch appointments can be used by legislatures to expand their influence on governors and their policies. Accordingly, many governors consult with key legislators before making formal nominations.
For state by state information on the methods of selecting state officials, see “Selected State Administrative Officials: Methods of Selection” (Table 4.10, The Book of the States 2019, source: The Council of State Governments).
Boards and Commissions
The roles played by boards and commissions vary considerably by state and by program. In some states appointed boards have the primary responsibility for individual programs and agencies and are responsible for the selection of department and agency heads. This is particularly true in the field of education, but boards still retain responsibility for a broad range of other programs in fields such as labor, transportation and health and human services.
In many states the members of these boards are named or nominated by the governor. And in many of these cases, board members are subject to confirmation by one or both houses of the legislature.
Other boards play more limited regulatory or advisory roles. In most states boards oversee the licensing and regulation of numerous professions and business areas. In other states they advise the governor on areas of importance such as the environment and economic development.
While the elimination and/or consolidation of boards and commissions is a common focus of government efficiency and government reorganization initiatives, they still play a prominent role in state government, providing opportunities to address the concerns of special interests and to reward political supporters.
Executive Branch Positions Independently Selected
A large number of states provide for the independent selection of certain executive branch positions. Most noteworthy among these positions are lieutenant governor, secretary of state, attorney general, and treasurer.
The position of lieutenant governor exists in the overwhelming majority of states, where the position is most often filled by popular statewide election and jointly with the governor, although in a small number of cases the role of lieutenant governor is assigned by state law to another position in either the executive or legislative branch (e.g., secretary of state or leader of the senate). The positions of secretary of state, attorney general, and treasurer are all subject to statewide popular election in the majority of states, and at least one of the three is elected in most of the remaining states.
Governors generally have limited authority in the appointment of state comptrollers and pre and post audit department heads. Governors’ appointment powers are also limited with regard to the heads of state education and higher education agencies. The education department head is independently elected statewide in 14 states and is appointed—independent of gubernatorial approval—by a board or agency head in 20 states and two territories. In most states and territories, the higher education head is appointed by a board independent of gubernatorial approval.
A number of states also provide for the statewide election of one or more other department heads, among them public utility regulators and the heads of agriculture, labor, and natural resources departments.
As with governors, other statewide elected positions may be subject to age, citizenship, and state residency requirements, as well as term limits.
For state by state data on the joint election of governors and lieutenant governors, see “The Governors” (Table 4.1, The Book of the States 2019, source: The Council of State Governments).
For state by state information on the methods of selecting state officials, see “Selected State Administrative Officials: Methods of Selection” (Table 4.10, The Book of the States 2019, source: The Council of State Governments).
For state by state information on eligibility requirements for state officials, see “Constitutional and Statutory Provisions for Number of Consecutive Terms of Elected State Officials” (Table 4.9, The Book of the States 2019, source: The Council of State Governments).
Cabinets
State cabinets, which serve as advisory councils to the nation’s governors, generally are made up of officials appointed by the governor to head state departments and agencies, and in some cases top-level staff in the governor’s immediate office. In most states the cabinet fulfills two functions:
- advises the governor on the development of policy; and
- serves as a vehicle for the governor or senior staff to convey priorities to gubernatorial appointees and address cross-agency issues or concerns.
In a number of states, governors have created sub-cabinets to bring together agencies to address issues such as the needs of children.
Forty-four states and all of the commonwealths and territories have cabinets and/or sub-cabinets. Cabinets themselves may have their origin in law, tradition, and/or the governor’s discretion. Cabinet membership may be a product of appointment to a specific office or be subject to selection by the governor. Cabinet size, and the frequency of cabinet meetings and formality and extent to which a governor uses his or her cabinet for advice and assistance, varies among the states, commonwealths, and territories.
For state by state information on cabinets, see “State Cabinet Systems” (Table 4.6, The Book of the States 2019, source: The Council of State Governments).
For more than a century, journalists and academics have proclaimed that the lieutenant governor of Texas is the most powerful statewide elected official. Governors got the glory, but the Texas Constitution and control of the Senate allowed the second-in-command to direct every aspect of the state government and set major policy agendas. Bill Hobby held the office for eighteen years through the seventies and eighties and shaped the state under three different governors, overhauling public education and bringing water to the colonias of South Texas. The irascible Bob Bullock, who served as lieutenant governor in the nineties, commanded the Senate often through a type of intimidation so sudden and fierce that one lawmaker described it as a “drive-by ass chewing.”
The governor, by contrast, has historically wielded little authority. In the wake of Reconstruction, former Confederates who regained power in Texas wanted a government with restricted reach, so they sought to rewrite state laws. At an 1876 constitutional convention, lawmakers limited the governor’s main powers to the administration of a weakened government, the calling of special legislative sessions, and the vetoing of bills. The hottest debate about the top office concerned whether to even pay the governor a full-time salary.
Throughout the next century, governors and those pursuing the office routinely discovered the limits of its reach. In 1893, when Governor James S. Hogg sent telegrams ordering officials in North Texas to halt the lynching of Henry Smith, a Black man accused of murder, his missives were ignored and local news reported they were “looked upon as a joke.” A mob burned Smith at the stake. During a 1998 election debate when Democratic nominee Garry Mauro said he would tell state environmental regulators that a nuclear waste dump would be too hazardous to build in Texas, his opponent, incumbent George W. Bush, replied that governors are not supposed to tell state agencies what to do.
But after more than a century of a relatively neutered governorship, Greg Abbott has shifted the center of gravity in state government. By adroit manipulation of the system, by law and fiat, and, most recently, by disaster orders during the pandemic, Abbott has become an imperial governor. He routinely has stifled the wishes of local officials, most of them Democrats. Early in his tenure, he sought to override the authority of cities to pass everything from tree ordinances to bans on natural gas drilling and on plastic grocery bags. During the pandemic, he nullified local orders mandating mask wearing and restrictions on business capacity. He has also snubbed tea party activists and the Legislature alike, implementing disaster measures such as extended early voting without calling a special session to approve them. Abbott’s authority has grown so great that lawmakers are now seeking to curtail the powers of the office.
If anyone still thinks the lieutenant governor is the most powerful statewide elected official, consider the 2017 debate over a bathroom bill, which would have regulated which restrooms could be used by the 0.7 percent of Texans who are transgender. After the legislation consumed much of the focus of the regular session and died in the House, lieutenant governor Dan Patrick tried to outsmart his opponents: he refused to allowed passage of bills to renew the Texas Medical Board and the Texas Department of Transportation, thus forcing a special legislative session during which he hoped discussion on the bathroom bill would reopen. Abbott, who never publicly embraced the bill and reportedly opposed it in private because corporate executives feared it would harm their businesses, agreed to add Patrick’s legislation to the special session agenda only after the Senate passed a laundry list of his pet legislation. Abbott got much of what he wanted. Then Patrick’s bathroom bill died again.
This year, when Patrick pushed legislation to claw back billions in electricity overcharges to utility companies during the failure of the Texas grid, Abbott refused to join him. At a March press conference after the bill passed in the Senate but was all but certain to die in the House, Patrick attempted to shame the governor into lending his support. In a meandering plea, he also acknowledged the shift that Abbott has wrought. “The governor of Texas is a very powerful person,” Patrick said. “He can do anything he wants.”
Texas’s most successful governors have typically been those who overcame the office’s weakness through force of personality and the art of persuasion. Abbott, unlike Bush, has never been particularly charismatic or even genuine. Days after lax state oversight of the power grid caused it to fail, during a microphone check, he was recorded practicing sincerity and modulating his tone, rather than relying on true emotion to comfort Texans who had been freezing in the dark. He also has never exhibited the showmanship of the raucous and sometimes raunchy Ann Richards. (When Richards lost her re-election bid in 1994, her personal popularity stood at 67 percent, prompting a politico to remark to me that, while Texans didn’t want to see her in the governor’s mansion, they did want to watch her on the Tonight Show.)
Richards had also tried to expand the governor’s authority. After officials with the state Department of Commerce took a junket to Germany with a three-day layover in France in September 1990, Richards learned she could fire almost no bureaucrat. She told the Legislature she wanted a cabinet-style government in which she could appoint secretaries, likening trying to control the vast system of governing boards she inherited to trying to saddle a wild horse. But her effort to consolidate fifty small state agencies into one licensing board under the governor’s control failed in the state House.
While Richards did not get her cabinet government, she planted the idea that a rapidly growing state with an equally burgeoning bureaucracy needed more executive control. During the past two decades, the Lege’s routine rewriting of state agency authorizing laws turned the governor’s title of chief executive into more of a reality. In his fourteen years in office, Rick Perry grew to command the bureaucracy through appointments like no governor before him.
Abbott inherited those new powers and sought to expand them. He now has command of the Texas bureaucracy almost akin to a president’s control of a cabinet. Abbott appoints the presiding officers of the governing boards or the executive heads of 64 state agencies, overseeing everything from the environment to public utilities to the prison system. The two men most closely advising Abbott during the COVID-19 pandemic, the state health commissioner and director of emergency management, owe their jobs to him. Four of the nine Texas Supreme Court justices do, too.
Abbott has taken a heavy hand with those appointees. In June 2018, he sent a memo ordering all state agencies to submit proposed rule changes to his office before making them public. He justified the move by saying it would allow him to deliver a “dispassionate ‘second opinion’ on the costs and benefits” of proposed action, but it also gave him the ability to intercept new policies he or his campaign contributors might not like before they were enacted. Abbott then also began to take credit those agency heads would typically receive for the work they do. In February, Abbott took the lead in announcing an extension of $300 million in food stamp benefits, rather than ceding that role to the head of the Texas Health and Human Services Commission. In March, Abbott declared the state would fund schools despite a COVID-caused decline in enrollment, pushing aside Education Commissioner Mike Morath. Richards wanted a cabinet government; Abbott has created a cabinet public relations machine.
His steady expansion of gubernatorial power accelerated after the coronavirus hit. During the pandemic, the Texas Lege was the last state assembly in the nation to convene. In lieu of the House and Senate, Abbott made himself the sole authority on control of the economy and health response, by executive order. He suspended parts of the penal code to deny release from jail without bail of Texans accused of violent crime, overruling county governments. He set aside the alcoholic beverage code to allow bars and restaurants to serve mixed drinks to go. And he ignored the election code to extend early in-person voting while simultaneously limiting access to mail-in ballots. Democrats and urban leaders whose orders Abbott overruled thought his COVID proclamations catered too heavily to business interests, while far-right conservatives believed he was exceeding his authority under the state Constitution.
The disaster declarations became lawyer heaven. The state Constitution awards the Legislature the sole power to suspend laws. But the Texas Disaster Act of 1975, which Abbott relied on in issuing his mandates, gives the governor the power to suspend provisions of law to deal with disasters. Lawsuits challenging Abbott’s executive orders and the constitutionality of the Disaster Act ensued.
In August, five legislators from the tea-party wing of the GOP sued to halt a state virus contact-tracing contract that Abbott’s administration had unilaterally awarded without a bidding process. They claimed the Legislature should have been called into special session to approve the funds. (The case is still pending in federal court.) Then in September, Texas GOP Chairman Allen West, Agriculture Commissioner Sid Miller, three state senators, seven current and former members of the House, and a group of tea-party activists sued to overturn Abbott’s order to extend in-person early voting by a week. The Texas Supreme Court rejected the election lawsuit, saying the plaintiffs were tardy in filing it.
“Clearly, he has acted as a king,” Jared Woodfill, a conservative lawyer from Houston who has represented plaintiffs in many of the suits against Abbott told me. “I don’t think we’ve had a governor in our history who has abused his authority the way governor Abbott has during the pandemic.”
Now, the Legislature is moving to clip Abbott’s wings. Proposed legislation would rein in a governor’s authority to suspend laws during a disaster. A bill in the House would set up an oversight committee in times of emergency. A similar bill and proposed constitutional amendment that the Senate sent to the House on Tuesday would require a special session to be called to approve a governor’s suspension of the penal code or election laws for more than thirty days, and would grant the Legislature the sole authority to restrict the occupancy of businesses. Abbott, whose office declined to make him available for an interview, told the Texas Tribune that he is working with lawmakers to roll back some of his sweeping powers while retaining the “flexibility to move swiftly.” He provided no details of which powers he was willing to curtail.
While proposing to put handcuffs on Abbott, legislators are careful to say the bills are directed at the office, not at him. Senator Brian Birdwell, a Granbury Republican, said he believes Abbott acted within current law, but that the Legislature, not the governor, is closest to knowing the will of Texans and should be the primary rule-making authority. “The people’s will was generally silenced during some of our most turbulent trials our state has endured in recent history,” Birdwell said at a Senate State Affairs Committee meeting on March 31. After years of ceding control to the governor, it was time for the Legislature, he said, to “reassert itself.”