March 12, 2007
Abbott says Perry's HPV order "does not carry the weight of law"

I'm trying to make sense of this, but the more I read, the more confused I'm becoming.

Gov. Rick Perry exceeded his authority in ordering middle-school girls receive a new vaccine against cervical cancer, Attorney General Greg Abbott has told lawmakers.

Sen. Jane Nelson said today that Abbott met with her and Rep. Jim Keffer last week and told them that Health and Human Services Commissioner Albert Hawkins does not have to follow Perry's order. Hawkins, however, has legal authority on his own to add the vaccine to the list of shots required for school.

"It appears that (the executive order) is, in effect, an advisory order and does not carry the weight of law," said Nelson and Keffer in a joint statement.

In an interview, Nelson added that Abbott said he could not predict what the courts might say about Perry's authority because the issue has never been litigated.


The House takes up a bill Tuesday to overturn Perry's order and prevent Hawkins from adding the HPV vaccine as a school requirement. A similar bill is pending in the Senate.

"We know now what authority the commissioner has regarding immunizations, and laws can change or define that authority," said Nelson.

OK, so, basically if Rick Perry had said to Albert Hawkins - you know, just making conversation, that kind of thing - "Albert, I think it'd be a spiffy idea to require 11- and 12-year-old girls to get this HPV vaccine", and Hawkins had said "Sure thing, Rick, I'll get right on it", then it would have been kosher, because Hawkins would have retained the option of telling Perry to get bent instead. But because Perry ordered Hawkins to do it, he overstepped his authority. Hawkins had the power to do this all along, but he may lose it for this specific vaccine because Rick Perry butted in. Sound about right to you?

But then there's this.

"It doesn't sound like it" needs to be overturned, Nelson said of the executive order. "I think it's viewed like more of a suggestion to the agency director."

Nelson and Rep. Jim Keffer, R-Eastland, had asked Abbott for an opinion on the constitutionality of Perry's order. Nelson said Abbott told them that the governor cannot, through an executive order, require an agency to do something that it is not already authorized to do. State health officials are authorized by the Legislature to decide which vaccines are required.

But if Hawkins was authorized to require the HPV vaccine, then why isn't Perry allowed to order him to require it? That makes no sense to me.

Maybe this is all just a little confusion resulting from the short period of time since Abbott issued his informal opinion. I'll check the writeups tomorrow to see if it's any clearer to me. Meanwhile, we'll see if HB1098 goes forward or not tomorrow. Stay tuned.

Posted by Charles Kuffner on March 12, 2007 to That's our Lege

Perry created one of the largest teacher incentive programs using his executive order power by telling TEA to do it. And this was after the legislature voted it down 6 times. Now we have an incentive system the teachers do not even want while other areas of public education go under/un-funded. Is it just that Neely didn't have the guts to say no? Or is it that nobody cares as much as they do about shots for girls? The teachers said they didn't want this in place, yet they got it anyway. Perry just does not know when no means no.

Posted by: Scott S. Floyd on March 12, 2007 4:20 PM

I know lawyers who've worked with the AG who say he is a hold his finger to the wind kind of guy. There seem to be cross-currents on this issue.

Posted by: Jeff N. on March 12, 2007 4:33 PM

If you don't follow Perrys orders, he will send the troopers after you and lock you in your chamber if you haven't already crossed state lines. If he cannot locate you he will initiate homeland security measures to find you.

Posted by: Charles Hixon on March 12, 2007 6:07 PM