Supreme Court upholds Abbott’s power grab


The Texas Supreme Court on Monday denied a request from several Democratic House members and state employees asking the justices to overturn Gov. Greg Abbott’s veto of legislative funding in the upcoming two-year state budget.

Abbott vetoed the funding in June after House Democrats walked out during the final days of the regular legislative session in May, killing two of his priority bills on elections and changing the state’s bail system. Abbott then brought the Legislature back for a special session to get the bills passed, but more than 50 House Democrats again broke quorum — denying the lower chamber of the number of present members needed to move bills — by decamping to Washington, D.C., until the 30-day session ended Friday.

Democrats challenged Abbott’s veto in court, saying it stripped their power as a “co-equal branch of government.” But the Texas Supreme Court on Monday sided with Abbott on his veto that will effectively defund the Texas Legislature, its staffers and legislative agencies later this year.


In an unsigned opinion, the all-Republican court said the lack of funding for the legislative branch “continues to exist not because of a dispute between the Governor and the Legislature, nor even because of one between the Governor and a minority of House members. Rather, the principal dispute is among the members of the Legislature.”

“This political dispute within the legislative branch is not an issue of separation of powers that we can decide,” the court said in its opinion.


The court said House Democrats could have worked with other lawmakers during this year’s first special sessions to reinstate Article X of the state budget, which covers legislative funding, without having to pass any other bills. They also could have worked with their fellow lawmakers to pass the bill more than 10 days before adjournment, which would have made it veto-proof. But they chose not to do so.

“Relators argue that the Governor is unconstitutionally coercing them to vote for legislation that he favors. But the Governor has not forced the Legislature to enact his priorities before addressing its own funding,” the opinion read. “The Legislature was free to use the special session to reinstate Article X funding. It could have done so without addressing any of the other items listed in the Governor’s call.”

“[T]he Governor’s veto of Article X followed by his call of a special session neither prevents the Legislature from funding itself nor forces the Legislature to enact legislation of the Governor’s choosing,” the opinion read.

The court noted that Abbott was trying to advance his favored pieces of legislation but that a majority of lawmakers in the GOP-dominated Legislature also supported those bills.

The court said the Democrats’ alleged injury may have started with Abbott’s veto, but continued only because they could not agree with their fellow lawmakers “over the order in which to consider legislation.”

You can read the unsigned opinion – there’s a load of political courage, I tell you – here. I didn’t expect the Supreme Court to wade into this, when it would be so much easier to avoid it, but this is just sophistry. The only reason there was a special session is because Abbott called one, as he has the sole power to call them. Would the Supreme Court feel differently if he hadn’t, or if he hadn’t added Article X funding to the special session agenda, another thing he has control over? Or is it now the case that constitutional separation of powers is entirely dependent on the calendar?

It is what it is at this point. The Article X funding will get restored, likely pretty soon at this point, and we’ll all go on our merry voter-suppression way. Just don’t come crying to me when a future Governor zeroes out Supreme Court funding. The Chron has more.

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23 Responses to Supreme Court upholds Abbott’s power grab

  1. SocraticGadfly says:

    Wrong. And never understood why Texas Dems did this straw grasping. Ruling was right. Unsigned as a “per curium” just like the US Supreme Court did, also standard order of procedure. No “courage” sneering or whatever needed.

  2. Kibitzer Curiae says:

    This Kibitzer respectfully disagrees with Socrates.


    The judicial Republicans issued an opinion hurriedly on a Monday without a deadline looming such as was the case when they handed down their stay-in-jail opinion in the case involving GA-13 (Friday is regular opinion order day), and they had not even asked for full briefing on the merits beforehand. Or for an update of the factual record for that matter. 

    Instead, they took judicial notice of subsequent developments without saying so; – facts that cannot have any bearing on whether Abbott’s veto was constitutional when he issued it. Note that the disposition of the case wasn’t on the basis of mootness, which would have provided a justification for considering subsequent factual developments. They opted not to decide the pivotal legal issue in the case – the validity of Abbott’s veto of Article X of the appropriations bill passed in the regular session. This issue is obviously not moot because no money has been appropriated during the special session, though the SCOTX notes the temporary fix for funding lege staffers for an additional month from another source. (“In the meantime, the Governor and legislative leaders have announced that funding for continued legislative operations has been made available through the end of September.”). This is another example of a fact not found in the mandamus record, but invoked nonetheless in the court’s opinion in a bid to justify the outcome. 

    A per curiam opinion is supposedly issued for routine error correction when there are no hard or novel issues, or when the key legal issue in the case is the same as decided in a contemporaneous case that was fully briefed and orally argued (or a recently decided one). There is no error correction involved here as seen in the fact that the SCOTX denied the Democrats’ request for extraordinary relief. More importantly still, this lawsuit was filed in the supreme court directly. There is no lower court ruling to correct because none exists as no lower-court case even exists. That’s because the Dems went straight to the Supreme Court to invoke its original jurisdiction.  

    This original mandamus case is unprecedented, as is Abbott’s veto of funding for the entire legislative branch. Also note the references to out-of-state veto cases in the absence of Texas precedent. They are not binding on the SCOTX.

    Given these circumstances, and given that the Court didn’t dismiss the Dems’ petition on jurisdictional grounds – or even address them — it should have been fully argued and shouldn’t have been disposed of in the precipitous manner that it was.  

    It looks much rather that the judicial Republicans on the SCOTX rushed to the aid of their former colleague and Governor, to shore him up as his de facto ability to bully the opposition party, and local governments, is eroding, and a rebellion against his autocratic ways is brewing.

    See Monday’s temporary restraining order against Abbott enjoining him from taking any action to arrest Democratic lawmakers returning from exile in Washington, D.C., and moves by the City of Houston and large school districts to implement mask policies irrespective of Abbott’s GA-38, a head-scratcher of a disaster order that purports to prohibit local government officials from fighting the very disaster Abbott himself has declared.

    Instead of taking appropriate emergency action to mitigate the spread of Delta COVID himself on a statewide basis, Abbott is using emergency powers under the Disaster Act to stop other government officials from fighting the disaster.

    How much crazier can governance get?

  3. C.L. says:

    Could this end up in the US Supreme Court ?

  4. Jason Hochman says:

    I just saw a video that claims to show NY Gov. Cuomo resigning. It was all in good fun, and he didn’t realize that the lines had changed. Back in grade school, he useta chase little girls on the playground and kiss them. He never changed. He’s just friendly.

    He should also do some time in prison for his actions and for moving the Covid patients to care homes, creating a huge number of deaths.

    Good to see that he won’t be running for president any time soon. He’s like Trump, but not as effective. Trump at least paid off the women he harassed.

  5. Kibitzer Curiae says:

    Jason … and what does Cuomo’s soon to be legendary skirt-chasing, midriff strafing, manual cup-sizing, and hands-on derriere appreciation have to do with the subject matter of Kuff’s post?

    Turning back from the groping & griping beat to Abbott’s cross-branch power grab — and his judicial brethren & sistren’s per-curiam nods of approval — here is the legal cite:

    In re Chris Turner, No. 21-0538 (Tex. Aug. 9, 2021)(per curiam denial of petition for writ of mandamus).

    and the docket link:

    Meanwhile, the Trib. has it that Abbott’s just got another opportunity to rally ’round their former colleague, and assist him in rounding up and cabining fugitive Democrats.

    Orders Pronounced August 10, 2021


    relators’ emergency motion for temporary relief granted
    stay order issued
    response requested due by 4:00 p.m., August 12, 2021

    [Note: The petition for writ of mandamus remains pending before this Court.]

  6. Jason Hochman says:

    It has only to do with some governors have their grabs upheld, and others get in trouble for their grabs.

    Careful what you grab.

  7. Kibitzer Curiae says:


    The hearing in J.J. Koch v. Dallas County Judge Clay Jenkins (v. Greg Abbott) has just concluded. At issue is the validity and enforcability of the mask-mandate ban imposed on local governments by Abbott in GA-38.

    No ruling yet. Nor will it matter. This case is on the way to the Supremes.

    The hearing (with 400+ watchers on Zoom) focused mostly on statutory construction of multiple provisions of the Texas Disaster Act, and whether or how the Governor has preemption power in the absence of an express preemption clause. There is one to resolve conflicts between mayors and county judges in how to handle disasters in the shared local area, but not one for governor-county-judge disagreements.

    The AG argues that the Governor can override disaster-coping measures adopted by the County Judge as local emergency manager merely because he is the governor responsible for emergency response for the State as a whole, and that he can use his own Disaster Act powers to thwart local measures that he disagrees with, even if they are based on considerations such as implications on “liberty” or other values that do not further the disaster response, and do *not* mitigating the damage caused by a declared disaster.

    The AG pushed the preposterous proposition that the Governor is within his powers and right to stop local officials from fighting disasters and adopt mitigation measures at the local level so as to address local conditions as they best can, even when the Governor himself has failed to adopt pro-active measures to cope with the disaster. As the AG’s would have it, the law given Abbott the power to thwart the core purpose of the Disaster Act: to cope with and mitigate disasters. No matter if it puts the local officials into a legal straight-jacket and raises the death toll.

    The AG’s office relies primarily on State v. El Paso, in which a loyal appointee of Governor Abbott annunciated in a similary type of case involving a local COVID measures the self-evident truth – self-evident apparently to said appointee — that the people of Texas can have only one master; that sole master being Greg Abbott, and that co-operation between different levels of government when disaster strikes is best assured by recognizing that the Governor is the master, and that his will is the law.

    See State v. El Paso County, 618 SW 3d 812 (Tex.App.- El Paso, 2020) (“Just as a servant cannot have two masters, the public cannot have two sets of rules to live by.”),44

    No doubt, the judicial branch of the Republican party will find the notion that Abbott must be able to run his plantation as he sees fit appealing.

    Not to mention that the district judge here is a black woman — not to mention a Democrat — who must be put in her place should she dare rule against Abbott and enjoin enforcement of his anti-mask prohibition.

  8. Bill Daniels says:


    When government discovers it can trample on the rights of the citizenry in an emergency… will never allow the emergency to end. This sentiment was perfectly encapsulated by this (in)famous quote:

    “You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.”

    ~Rahm Emanuel

    The Texas and US Constitutions were written to protect the citizens FROM the government, from the very type of fascism and totalitarianism Rahm promulgates. Abbott certainly has made his share of missteps and bone headed decisions, but here he is honoring the spirit of both documents.

    And here’s what Jefferson had to say on the subject:

    “In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

    ~Thomas Jefferson

    For a real life example of how government uses a crisis to attack citizen’s rights, look no further than the “temporary” US income tax.

  9. Joel says:

    “For a real life example of how government uses a crisis to attack citizen’s rights, look no further than the “temporary” US income tax.”

    interesting that taxes are the example you offer, rather than, say, internment camps, bill.

    there’s no point in bothering, but i will also observe that abbott is not preventing tyranny, he is engaging in it. he is not protecting private entities from (state) government overreach, which is one purpose of the texas/us constitutions, but rather he is using the power of the state government to unilaterally interfere with the actions of citizens, localities, and private entities. (usually such action on the part of the executive branch would be justified on the basis of public safety; here, um, not.)

    but you knew that. and that.

  10. Kibitzer Curiae says:


    Paxton intervened in the name of the State of Texas on the Plaintiff’s side, and also moved for injunctive relief, but the district judge granted Jenkins’ application for a temporary restraining order against the Govenor this evening. Based on his own pleading for affirmative relief, Jenkins is a counter-plaintiff as to Governor Abbott and the original Plaintiff, County Commissioner Koch.

    The signed TRO, containing reasoning and factual findings, and the required date for an evidentiary hearing on the temporary injunction request is here: (8 pages)

    J.J. Koch, Plaintiff, and State of Texas, Intervenor-Plaintiff v. Clay Jenkins, in his Official Capacity as County Judge of Dallas County, Defendant and Counter-Plaintiff v. Greg Abbott, in his Official Capacity as Governor of Texas, Counter-Defendant. Case No. DC-21-10101, pending in the 116th District Court of Dallas County, Texas.

    A TRO cannot be appealed, so the next thing to watch for is whether AG Paxton / Solicitor General will seek a writ of mandamus against Judge Parker. The Assistant AGs assigned to the case are Todd Dickerson and Benjamin Dower. Dickerson signed the pleading. Both presented legal argument during the hearing held on Zoom.

  11. League city says:

    So I have a question about subrogation…. at what point do the health insurance companies decide this nonsense is getting expensive and decide that some one else should be responsible for the costs of all this illness? Can it even be a thing?

  12. Bill Daniels says:

    League City:

    Excellent thought. China needs to be sued for the damage they have inflicted on the world…..a class action suit by every other country on the globe. This wasn’t an act of God….this was a man made disaster, a bioweapon. We are entitled to war reparations.

  13. League city says:

    @bill – fair point about the challenge determining the “ultimate responsibility” that would be raised; but at the same time, parents still get criminally charged for putting their children in harm’s way even if they didn’t cause that harmful thing to exist in the first place.
    At what point do the insurance companies (who, let’s face it, don’t make all their decisions based on the science, but on the $) decide that someone is needlessly incurring lots of ICU (read $$) costs by preventing preventative measures?
    and does anyone have cause to bring some sort of civil wrongful death suit if their loved one dies after doing everything right but catching it from someone at school? Just a thought anyway.

  14. Kibitzer Curiae says:

    Bill, League City:

    You guys should read up on sovereign immunity. PRC is a sovereign nation-state, so what court are you going to sue them in on a mass tort claim, assuming arguendo that there is any basis to blame their national government? The International Court of Justice in The Hague?


    Second, Greg Abbott is immune too. Along with the State of Texas and its bureauractic apparatus. How does failure to contain the virus fit into the Tort Claims Act? That’s why they are suing him for declaratory and injunctive (“equitable”) relief.

    No money damages available unless you can find a statutory immunity waiver or get a legislative resolution to waive sovereign immunity for a specific calamity or incident – like an Aggie bonfire collapse with student bodies in the pile.

  15. Bill Daniels says:


    I get your point, but there is precedent for suing sovereign countries. Example:

    “Monday, Sep. 08, 2003

    Last month, lawyers and diplomats from the U.S. and Libya finally settled the outstanding lawsuits surrounding the destruction of Pan Am Flight 103 over Lockerbie, Scotland, in 1988.

    The deal guarantees between $5 and $10 million to each of the families of the victims. It also brings to a close a long and painful campaign by plaintiffs who had filed suit against Libya.

    The settlement raises a few questions, however, which cannot be ignored.

    The History of Earlier Lockerbie Litigation and Diplomacy

    First, American law – in particular, the Foreign Sovereign Immunities Act (FSIA) – protected Libya from civil suit in American courts. Second, because Libya would not extradite the suspected terrorist mastermind behind the bombing, no court had yet concluded that there was a Libyan connection in the first place.

    By 2003, the landscape had changed dramatically. The U.S. Congress, under pressure from families of victims of state-sponsored murder around the world, amended the FSIA to permit civil suits against a handful of states that “sponsored” terrorism (such as Cuba, Iran, and Libya). And, in 2001, a Scottish court sitting in the Netherlands convicted a Libyan secret servant agent for the terrorist act (the Libyan government, under intense pressure from the world community, sent him to be tried).”

    Whatever metric you want to use, body count, economic damage, whatever, the Chinese Communist Party, and thus China, is the largest state sponsor of terrorism in the world right now. Obviously China bought Joe isn’t going to list China as a state sponsor of terrorism, but I bet Trump or other America First president would.

    The US could seek its reparations in a two fold manner, first, repudiate the national debt held by China, as reparations. Next, we could nationalize property, equipment, and capital owned by China in the United States, and auction it off to Americans.

    This doesn’t mean the US and the many nations of the Earth shouldn’t ALSO seek justice at the World Court in Den Hague as well.

    Fun fact: When I toured that building, I got chastised by the docent for sitting in one of the chairs. I didn’t realize that was verboten. I apologized profusely and was allowed to continue the tour. Apparently my faux pas was pretty common among the tired traveler set.

  16. League city says:

    To be clear, *I* wasn’t the one suggesting we sue China.
    Where i was headed was the analogy is the (tragic) instances where parent forgets kid in the car and goes into the office for the day: No one tries to sue or charge the sun for making the car hot during the day – the parent that left the kid there is held responsible. Or choose any other child endangerment scenario.
    [and if you want to put PRC in the place of the sun for the purpose of the analogy, well, that’s up to you – wasn’t my idea].

    anyhoo, you have a structure (in this case Governor) that is actively preventing you from not-endangering your children:
    – send your kid who is too young to be vaccinated,
    – to school in a riskier-than-normal environment where folks that want to be unmasked will be unmasked
    – that are *more likely than everyone else to be sick* with a more communicable variant
    … All under threat of truancy violations (i guess…?) and more significant threats to the school officials in this equation.
    Should, God-forbid, one of these kids gets seriously ill – or gets an immunocompromised family member ill – and they die – what obscure remedy is available?
    More Than Not A Lawyer, the only remedies i have heard of is criminal negligent manslaughter sorts of things, with a high bar of proof required; or a civil wrongful death, with a lower bar of proof required.

    All that to say, i was wondering 1) if those remedies exist and 2) if/how the Guv and his rules are exempted from those remedies (answered upwards by Kibitzer)

    Thanks so much yall.

  17. League city says:

    Edit: … or where i started this, health insurance companies wanting to subrogate the financial costs of paying for all this ICU care. They don’t like paying lots of (any?) money if they can get the “responsible party” to pay for it instead.

    If you can prove that the kid in ICU bed #5 got it from going to school where unmasked classmates were actively spreading disease, to whom will the insurance companies to go be reimbursed? … should they decide they want to.

    [also thought this about the winter storm – home insurance companies might turn to ERCOT for subrogation of all these busted pipe damage claims, but … alas].

  18. Bill Daniels says:

    League City,

    Since the Sun isn’t a malevolent bad actor (and also, the Sun, having no assets to seize or attach, is judgement proof), the more appropriate analogy you should be making is, a parent leaves the child in the car, say to get a pack of smokes at the local Quickie Mart, and subsequently, a car thief steals the car with the child in it.

    So now we’re looking at a comparative negligence situation. Who all is responsible for the harm to the child, and in what percentages? At least with this scenario, we can categorically say who the bad actors are, and how and where the harm occurred.

    As far as I know, there’s no testing to determine exactly who transmitted the Wu flu to who, like we can in testing for certain venereal diseases. In other words, let’s say we suspect your masked, vaccinated child contracted the virus from an unmasked child at school. Can you prove that? Can you prove that my unmasked child, for example, absolutely infected your child? What if it was the other way around? Can you prove your child didn’t catch it somewhere else and infect my unmasked child?

    But let’s just assume that you can absolutely prove that my unmasked child not only 1) came to school infected, and 2) was THE person that infected your masked child, I’m assuming you want to hold Greg Abbott partially responsible for my child having the freedom to not wear a mask at school.

    How are you going to assign the comparative negligence? And can you prove that your child never removed HIS mask once during the period your child might have been infected? Can you prove he never drew a breath through his nose when his mask may have slipped down? Proving that your child contracted the virus at school vs. somewhere else is one challenge, but even if you surmount that hurdle, how much, if any, comparative negligence does your child have? Was your child respirator fit tested and wearing an N-95 mask or better? Was your child wearing a face shield and other hazmat gear? How did you, as the parent, mitigate KNOWN risk?

  19. Kibitzer Curiae says:


    Regarding China, duly noted. Didn’t mean to attribute that idea to you, League.

    Some would call it “crazy” to sue China, though that would be too simplistic too. But it would force us to digress into the realm of international law, or international anarchy, if you will. — Anarchy as in absence of a global government lording over what would no longer be sovereign entities.

    Domestically, we do have governments lording over us, and courts of general jurisdiction to adjudicate claims, including claims against the government.

    But not so fast …


    As for Texas, the State is not truly sovereign because it is part of the U.S. – which takes the form of a federation — and is subject to national supremacy. But the State nevertheless asserts sovereignty vis-a-vis its citizens.

    Of course, the topic cannot be done justice here. All we can do is scratch the surface and discuss general principles.

    In that vein, we might say that in Texas, the rule of law — including the rules governing immunity — is whatever the all-Republican state supreme court says it is (in case of a disagreement).

    Note that sovereign immunity is a “common law” judge-made doctrine, which has been refurbished and elaborated by the Texas Supreme Court through its judicial opinions. It’s a Republican version of “the King can do no wrong” inherited from England and repudiated only selectively. TEX. CONST. OF 1836, art. IV, § 13 (directing Congress to adopt the common law of England as rule of decision). There is some academic disagreement on the matter of incorporation of English common law into Texas law, but that’s for the law reviews.


    The current Texas constitution actually says this: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

    Alas, this constitutional guarantee doesn’t mean a whole lot when the wrongdoing is committed by the goverment itself, i.e., officials, officers, or public employees. Why? – Because the state supreme court routinely protects state actors from lawsuits.

    The basic idea – elevated to the status of a jurisprudential doctrine – is this: If we (the state supreme court) allowed people to sue the state or its agents, the state might lose and that would cost the state money. We can’t have that. And since defending lawsuit would also cost money (most notably, the salaries of the litigators in the Attorney General’s Office), we can’t have that either. Therefore, lawsuits by individuals against the state and state officials must be dismissed at the outset to protect the state.

    Let the plaintiffs suck it up.

    The State of Texas can’t even be sued for breach of contract unless it agrees to be sued. Leading case is Tooke v. Mexia, proudly pertetrated by our still-Chief Nathan Hecht.

    There was dissent at the time, including by conservative Phil Johnson, but that no longer matters.

    You can read it here:,44

    Tooke doesn’t deal with tort claims, but does address the question of immunity waivers by the legislature. Even when a statute says that a governmental agency may be sued, it doesn’t mean that the entity may actually be sued. Thanks to this Hecht and five of his brethren. (The only Lady Justice at the time, Harriet O’Neill, dissented).

    The jurisprudence on the state’s immunity is vast. You can try search terms such as Tort Claims Act, plea to the jurisdiction, sovereign immunity, governmental immunity on Google Scholar, selecting the Case law / Texas search option.

  20. C.L. says:

    I want to sue a couple of frequent (like a couple times/day) posters/posers on this blog for making my brain (and areas much lower than my brain) hurt.

    Kibitzer, who can I get to take THAT case ?

  21. Bill Daniels says:

    LOL, C.L.

    First, can you prove that the frequent posters who annoy you here are the proximate cause of your injury? Can you prove actual injury? Did you seek treatment? Do you have specials? Assuming that you can prove injury, and prove that it was received here, and who, particularly, injured you, what, if anything, did you do to mitigate the known risk of injury? Then there’s the matter of which other defendants you should also sue.

    When a crazed gunman shoots up a school, the gun manufacturer gets sued, even though the crazed gunman obtained the firearm by committing a murder/robbery.

    So who else will be enjoined in your suit? The school districts that taught logic and language skills? Maybe sue the federal government for that pesky 1st Amendment that protects both free speech AND a free and open press, perfectly personified by Kuff’s blog?

  22. Kibitzer Curiae says:

    Q: Kibitzer, who can I get to take THAT case ?

    Thanks, but no thanks. Not making any recommendations. And what attorney in his right mind would take such a cutting-edge case of a crap/moon shot? Craig Washington perhaps?

    But see TRCP 7 (providing for the right to self-representation for folks who can’t afford a lawyer, or don’t trust them, or just instist on having a fool for a lawyer and ditto for a client). The said, many a fair generalization has its provable exception. Not to mention unfair ones.

    Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.

    The other 329 pages of the civil court rules are here, for starters:

    Not that anyone should enourage it.

    Come to think of it, Kibitzer and sidekick Kibitzer Curiae are notorious and serial comment contributors here, and either one might make a more suitable defendant. Might even spice things up with a frivolous-suit counterclaim, or a TCPA motion to dismiss predicated on lack of legal or factual basis (or both), and for sanctions. (grin)

  23. League city says:

    this has been perfect yall. just what i wanted, a mostly troll-free discussion on the finer points around the idea. i have learned things today.

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