Perry challenged again
March 20, 2007
A simmering backroom political dispute about whether Gov. Rick Perry had the authority to appoint a special master in the Texas Youth Commission scandal exploded publicly Monday as a House committee initiated an inquiry to answer growing legal questions.
Written by Mike Ward, Austin American-Statesman
A simmering backroom political dispute about whether Gov. Rick Perry had the authority to appoint a special master in the Texas Youth Commission scandal exploded publicly Monday as a House committee initiated an inquiry to answer growing legal questions.
The controversy was the latest over whether Perry has overstepped his authority in issuing executive orders. An earlier order, to expedite coal-plant permit reviews, was blocked by a judge, and an order requiring sixth-grade girls to be vaccinated against a virus that can cause cervical cancer is being challenged by lawmakers.
The new issue promises to further strain relations between Perry's office and some legislative leaders in both houses.
At issue in the Youth Commission case is an executive order issued March 2 in which Perry appointed a special master to investigate allegations of wrongdoing at youth prisons run by the agency and to help develop and implement a rehabilitation plan.
In the order, Perry said he acted "by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas."
But several officials told the House Corrections Committee on Monday that they could find no specific authority for a special master, only for a conservatorship, a forced management takeover of an agency, an option approved by the Senate but rejected by Perry.
"We are unable to find any express authority for a special master," said the legal division director for the Texas Legislative Council, Mark Brown. He also concluded that the commission's board members who resigned Friday technically continue serving until replacements are named.
Committee members questioned whether the ongoing investigations could be tainted and whether Jay Kimbrough, a former top Perry aide whom the governor appointed special master, could be making decisions without legal authority.
Rep. René Oliveira, D-Brownsville, expressed concern that the questions could be "creating another obstacle to prosecution" of those accused of crimes during the ongoing sexual-assault and cover-up investigations at the Youth Commission.
On Monday, the committee was considering two bills that would mandate a conservatorship to replace Perry's special master, one sponsored by Democrats and the other by mostly Republicans. Both bills were left pending until today to allow the attorney general's office time to research the authority question.
"We've got two executive orders already in doubt, and now, we've got an executive order where we have the same questions," said Rep. Jim McReynolds, D-Lufkin.
Under House Bill 2686 and HB 2340, Perry would have 10 days to appoint a conservator. If he did not, Lt. Gov. David Dewhurst would have five days to do so. If he did not, any member of the Legislature could petition the Texas Supreme Court to force an appointment.
Perry aides declined an invitation to appear before the committee Monday to explain the legal basis of the order, legislative aides said. Even so, Ted Royer, Perry's deputy press secretary, insisted there is no legal problem with the appointment of Kimbrough.
Kimbrough could not be reached for comment Monday.
A conservator or a conservatorship board could do much the same thing as Kimbrough, only with specific authority granted in state law. It could make personnel changes now being undertaken by Acting Executive Director Ed Owens, a top official of the adult prison system whom Perry brought in two weeks ago to run the Youth Commission.
Questions about Kimbrough's legal authority surfaced two weeks ago in a heated, closed-door meeting with senators, who pushed Perry to put the Texas Rangers in charge of the investigations and move Kimbrough to a position helping Owens with the rehabilitation plan. Perry declined.
Since then, some Senate and House leaders have criticized the lack of a management shake-up at the Youth Commission. More than three weeks into the scandal, most top agency officials remain in their jobs even though Kimbrough and Owens have promised
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