March 13, 2007
More on Abbott's HPV opinion

Yesterday, after AG Greg Abbott issued an opinion regarding Governor Perry's HPV vaccine executive order, I was a little puzzled by what it all meant. I'm still a little confused today.

Attorney General Greg Abbott has informally told two top lawmakers that Gov. Rick Perry exceeded his authority in ordering middle-school girls to be vaccinated against cervical cancer.

The message was delivered behind closed doors last week to two lawmakers who had asked for Abbott's advice. Those legislators -- Sen. Jane Nelson and Rep. Jim Keffer -- issued a statement Monday making the issue public.


Nelson, chairman of the Senate Health and Human Services Committee, and Keffer, chairman of House Ways and Means, were determined to get the message out.

"The attorney general met with both of us, and he answered questions we had regarding the executive order," the lawmakers said in a joint statement. "It appears that (the executive order) is, in effect, an advisory order and does not carry the weight of law. The Health and Human Services Commissioner is not required to follow the order."

As I said yesterday, what this suggests to me is that if Perry had simply picked up the phone and asked HHSC Commissioner Albert Hawkins to require the HPV vaccine for girls, then we wouldn't have had all this fuss. Hawkins apparently had this power already, and as Burka notes, appointed officials usually do what their Governor asks them to do. The difference is that in the scenario I've proposed, it'd be Hawkins feeling the heat, not Perry. If this was an exercise to demonstrate Perry's real power as Governor, I'd say it backfired spectacularly.

But what's the deal with this "informal" opinion? What'd Abbott do, write it on a cocktail napkin?

Abbott avoided having to make a formal, written ruling when Keffer, R-Eastland, and Nelson, R-Lewisville, quietly rescinded a Feb. 7 request for a formal written opinion. The following day they sent a brief letter to Abbott saying their "intention was to seek guidance from your office in the form of an informal response."

Okay, scratch the napkin. Whatever Nelson and Keffer may have requested, I think Burka is right to say that Abbott ducked the issue here. There was a real question about the Governor's office appropriating funds, which conveniently got swept under the rug by Abbott's "I'll whisper it in your ear" opinion.

Of course, had he done that, he'd have opened a bigger can of worms:

Perry has not been challenged on other executive orders, such as his 2005 directive to the Texas Education Agency requiring school districts to use 65 percent of their budgets for classroom instruction. While that order was unpopular with school administrators, many Republican legislators were supportive.

"The difference here was that he stepped on the toes of people in power," said [Scott McCown, a former state district judge and assistant attorney general].

While it's nice to see a meme I've been pushing get a mention in the mainstream press, it also shows that Abbott's lack of conviction means there's still been no legislative pushback on Perry's first boundary-overstepping executive order. Perhaps Nelson and Keffer were aware of the possible implications when they told Abbott to skip the formality and just tell them what he thought. Either way, I think Abbott should have stuck with their initial request and done this right.

UPDATE: The House has passed HB1098, which would overturn Perry's order.

Posted by Charles Kuffner on March 13, 2007 to That's our Lege