Sunday, February 05, 2023

On the Texas State Constitution

 I've been a bit behind this past week on a number of things because of our winter freeze here last week. I was not one of the people who lost power, although that seems to be almost a fluke, since neighborhoods only a few blocks away on every side had outages for at least some of the time, but internet has occasionally been very inconsistent, and, of course, there was both preparation before and during the storm and a lot of catch-up on everything afterward, as errands that would ordinarily have been spread over the week had to be done all at once toward the end. It should be noted, as I have seen many false claims about this, that there was no problem at all with Texas's electrical grid. The winter storm, while not very cold, occurred at the mushy, sleety border right around freezing that coated everything with ice. The result was that tree branches everywhere broke under the weight. (Toward the end of the storm, you could hear, every so often, a loud CRACK as yet another one went down. I was out on a long walk Friday, and everywhere I went there were broken tree branches that people were still trying to clean up.) A large number of such broken branches kept taking out power lines. The ice also made repair difficult and dangerous. Thus the real issue was a maintenance problem. It's unclear to me whether it was the utility company or the city that fell down so badly in this department. My bet is on the city; around here, you are usually not completely wrong if you blame Austin City Council. The city receives very large sums of money from the utilities and is notorious for wasting most of it, and since COVID a lot of the city's maintenance has been at least inconsistent. Regardless, someone needed to be out doing a lot more tree trimming.

One thing I find somewhat interesting is the repeated attempt by a lot of parties to pin the problem on Abbott. This happened over the last winter freeze, too, and occurs for political reasons, of course. But Governor Abbott has no direct authority over most of these matters. As the most visible state politician, he can put a lot of political pressure on particular points, and he has some powers under various laws that can increase such pressure, but he is not directly in charge of any of it. One of the things that often seems to confuse people about Texas -- I've known Texas residents who get confused about it -- is its somewhat peculiar state constitution. Texas was built very clearly and explicitly on principles of legislative primacy. This is why, for instance, at least as I was told growing up, if you look at a map of Texas, this huge state is divided into lots of little tiny counties -- 254 of them, more than any other state even accounting for size. The borders of the counties also often don't make much sense in terms of what they divide. This is a designed feature, one that was put into the system in order to guarantee that there would be no way for counties to mount any kind of effective resistance against state laws. It's also why the state fathers originally attempted to have Governors serve two-year terms (which was eventually changed because it wasn't really workable, although people still try to reinstate every so often).

In any case, this is likewise the reason why the Governor of Texas is the weakest state governor in the United States. One might naturally expect that the Governor has more authority and power than the Lieutenant Governor, just as one might naturally assume that the New York Supreme Court is New York's supreme court, but in the one case as in the other, this is wrong for historical reasons. Practically speaking, the most powerful position in Texas is the Office of the Lieutenant Governor. This is because the Lieutenant Governorship is both an executive and a legislative position; he can exercise some powers of the Governor as the Governor's deputy, but primarily serves as president of the Texas Senate, where he has considerable influence over legislative committees. In addition, executive authority is deliberately broken up in what is known as the plural executive system --several of the most important positions that technically answer to the Governor's office are not appointed by the Governor but are independently elected. The Governor also has only very limited power to remove anyone from office. There are a few things over which the Governor is directly in charge as a constitutional matter, and he has further powers under various statutes, but Texas is deliberately and undeniably designed so that the buck always ultimately stops at the Texas State Legislature, which is balanced only by the people, although it is also deliberately restricted in ways that guarantee that that has some bite. (The Constitution of Texas is famously long and complicated, and the reason is that the legislature cannot do anything that the constitution does not explicitly allow, so every time something new comes up, an amendment has to be put forward to the people. The result is that the document is filled with exceptions to limitations to grants of authority, as well as things like a very long section about what debts the legislature can allow that has two subsections that are accidentally numbered the same.)

The electrical grid (officially known as the Texas Interconnection) is directly under the authority of ERCOT, the Electric Reliability Council of Texas. ERCOT is a nonprofit organization whose members are the electrical utilities. ERCOT is regulated as far as fees and customer rights are concerned by the Public Utility Commission of Texas. This is an executive agency whose board is appointed by the Governor, and its Chair is a non-voting member of ERCOT's governing board. But ERCOT itself, in its primary operations, answers only to the relevant committees in the state legislature. And, likewise, failures at the city-level, like the recent one, are not directly under the Governor's authority, either. This sort of thing is quite common for almost everything in Texas -- authority is divided up, when there is any relevant authority at all, but usually in such a way as to give primary responsibility to the legislature.

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