Senator Eliot Shapleigh - El Paso, Texas

Gov. Rick Perry

Emphasizing the slight authority given Texas governors by history, two Austin lawyers say Gov. Rick Perry lacked the power to issue last week's order requiring girls to be vaccinated against a virus that causes cervical cancer.

Perry's office counters that as the state's chief official, he can guide executive branch agencies.

"No amount of carping, complaining or yelling and screaming is going to change that," Perry spokesman Robert Black said. "If they want to challenge it, my guess is, they both know a trial lawyer or two to do their bidding. We'd be happy to take the governor's constitutional authority to court."

Perry's order directs the Texas Department of State Health Services to make available the vaccine against the cancer-causing human papilloma- virus to women up to age 18as well as to Medicaid-eligible women to age 21.

Perry mandated shots for all girls before they enter the sixth grade, with parents permitted to request forms excusing their children.

Buck Wood, a lawyer whose career included work in Gov. John Connally's office in the 1960s, criticized the order. "This isn't even arguable. The governor doesn't have any power to dictate to any agency about what rules it makes."

Scott McCown, who served 14 years as a Democratic state district judge in Travis County, voiced similar concerns. Although state law permits governors to issue orders in emergencies, he said, Perry's move to protect young women doesn't clear that hurdle.

"It's a judgment call," said McCown, who initially commented in a column in Wednesday's American-Statesman. "But there is no way this is even close. There is no way this even qualifies" as an emergency.

Black said Perry draws his authority from a constitutional provision designating the governor the state's chief executive officer.

"As the head of the executive branch," he said, "he has the authority to issue directions to agencies to act in a prescribed manner."

Black said lawmakers can propose, debate and approve related legislation. If that happens and the governor signs a resulting proposal into law, the law prevails, he said.

Wood and McCown, the executive director of the Center for Public Policy Priorities, conceded that the governor is the state's CEO. But they said that doesn't mean a lot.

McCown said that being the CEO "means that you are the chief administrator, not the chief lawmaker."

Besides appointing some agency heads and agency board members, Wood said, Texas governors have always lacked day-to-day clout — a purposeful aspect of the post-Reconstruction constitution.

"The governor has the power of persuasion," Wood said. "That's it."

Wood said affected agencies can choose not to carry out the order, though a spokeswoman for the Health and Human Services Commission said that an implementation plan for the order and timeline are under development.

Perry's order, issued Friday, touched off conflicting reactions. Some lawmakers hailed Perry for making Texas the first state to require the vaccinations. Others, including 26 senators, urged him to reconsider, saying he had overstepped his authority.

"This is nuclear," said Rep. Dianne White Delisi, R-Temple. She spoke Wednesday as Rep. Carl Isett, R-Lubbock, circulated a letter to House colleagues to be sent to Perry, asking him to rescind the order.

"Regardless of whether it is a wise idea to vaccinate a child to prevent a sexually transmitted virus," Isett's letter says, "the legislative process is robust enough to give voice to every side of this issue."

Sen. Jane Nelson, R-Lewisville, asked Attorney General Greg Abbott for an expedited opinion on whether governors can issue executive orders.

"If so, does the law provide broad powers to grant executive orders, or are those powers limited to specific circumstances?" her letter asks.

Since 1951, governors have issued 464 executive orders. Perry, a Republican in his seventh year as governor, has issued 65 since 2001.

Predecessors George W. Bush and Ann Richards issued more than 40 each. Bush served nearly six years, Richards four.

About a third of Perry's orders launched or continued about 20 advisory committees or task forces on topics including physical fitness, clean coal technology, state taxes and base closures. Others were more ceremonial, requiring agencies to lower flags to half-staff or honoring deceased heroes.

Perry has also issued sweeping edicts ordering agencies to reform programs that investigate the abuse and neglect of adults and children and, separately, telling the Texas Education Agency to write rules requiring school districts to spend 65 percent of their money on classroom instruction. McCown said Perry has demonstrated that he's a strong governor.

"That's why I spoke out," he said. "That's why this is growing problem."

wgselby@statesman.com; 445-3644

Additional material from staff writers Laylan Copelin and Corrie MacLaggan.

Ceremonial orders, sweeping edicts

Gov. Rick Perry has issued 65 executive orders since 2001. They include:

•Creating Governor's Task Force on Homeland Security.

•Ordering the Health and Human Services Commission to review policies impeding community-based alternatives for people with disabilities.

•Creating a statewide alert network in case of child kidnappings.

•Creating Governor's Clean Coal Technology Council.

•Ordering improvements in child immunization rate.

•Directing reforms in investigating the abuse and neglect of adults and children.

•Requesting rules requiring school districts to earmark 65 percent of spending for classroom instruction.

•Creating Texas Tax Reform Commission.

•Directing the state health services department to adopt rules mandating the age-appropriate vaccination of all female children for the human papillomavirus before entering sixth grade.

Source: Office of Governor