December 20, 2014
by Anna Tinsley
Instant-gambling machines at racetracks in Texas. Alcohol sales at certain gun shows. A move to prevent dentists from using support organizations that might handle scheduling or marketing.
These are among the issues that state lawmakers say should have been left up to them. But state agencies stepped in anyway and, in the view of some elected officials, may have overstepped their limits.
Now lawmakers are on the verge of heading back to the Texas Capitol for 140 days, and some say they are ready to take control back from the very agencies appointed to help them.
“This is one of the biggest abuses we have in Texas government,” said Rep. Jonathan Stickland, R-Bedford. State agencies and boards “are taking legislation and writing their own in conjunction with it, way far and beyond what the Legislature intended. It’s way out of control here.”
In a year when a state representative went so far as to go to court to stop an agency from acting, at least one measure has already been filed to rein in state agencies.
Political observers say this battle has gone on for a long time.
“There are always disputes about the flexibility and right to interpret laws,” said Cal Jillson, a political science professor at Southern Methodist University. “Generally, laws are written fairly broadly, giving some administrative state discretion to state agencies.
“When individual state legislators look at the use of that discretion, they realize it’s not what they intended,” he said. “This is just a normal tugging and hauling of government authority.”
Lawmakers say they need state agencies to help them and to keep day-to-day operations going since the Legislature meets for only 140 days every other year, barring special sessions.
“We have to give a lot of responsibility to agencies,” said Rep. Giovanni Capriglione, R-Southlake. “During the interim, they don’t go totally haywire. But sometimes, some do overstep their bounds.”
Generally, when lawmakers are concerned that an agency is overreaching, they write letters asking it to scale back.
This year, lawmakers have written letters, asked for attorney general opinions, even filed lawsuits.
But it doesn’t always work.
“There’s a concern with agency creep,” said Rep. Matt Krause, R-Fort Worth, who sued a state agency this year. “They seem to be taking more and more powers or privileges with the constitutional authority they’ve been given, trying to expand their powers.”
There’s a simple way to stop the agencies, according to the conservativeTexas Public Policy Foundation, which has studied the issue for years.
“They need to stop giving them so much money,” said Bill Peacock, vice president of research at the Austin-based foundation. “If they don’t have money, they can’t take all these actions.”
This year, the Texas Lottery Commission considered a proposal to let the outcome of pull-tab bingo games “have electronic, video or digital representation.”
The plan quickly became controversial when opponents said it would expand gambling in Texas, a decision that belongs solely to the Legislature. Three dozen conservative lawmakers signed a letter urging officials to reject the proposal.
“The Texas Lottery Commission should not adopt rules that would be so patently unconstitutional and so clearly contrary to the collective will of the Legislature and opinions rendered by the Attorney General,” the letter stated.
The commission delayed a decision, and the proposal has not come up again for a vote.
“We are very aware of what our charge is here,” Commissioner Mary Ann Williamson said in April. “We have no desire to expand gaming of any kind. … That is not our charge.”
Then came a proposal to introduce “historical racing” — replaying old horse races on slot-machine-like devices. As the issue drew more attention, several Republicans sent letters to the Texas Racing Commission.
“The Texas Legislature is the proper arena in which to make such changes to public policy, not via an agency rule,” according to one letter signed by GOP nominees for the state Senate, including Paul Bettencourt of Houston, Konni Burton of Colleyville and Van Taylor of Plano, all of whom were elected.
As the Racing Commission appeared poised to vote on the issue, Krause filed for a temporary restraining order. Shortly after that was denied, the commission approved allowing the machines at horse and dog tracks statewide.
Krause pursued the issue in court. “They were overstepping their constitutional authority,” he said. “We asked them not to go ahead, and they passed it.”
Ultimately, Judge David Evans of the 48th District Court agreed with Krause that commissioners don’t have the authority to allow the machines. But hedismissed the case because he said the lawmaker had no right to intervene.
Another judge later ruled that the machines cannot be added at tracks. An appeal is expected.
Best left to the Legislature?
The idea of mixing guns and alcohol concerned many Texans this year when the Texas Alcoholic Beverage Commission began reviewing a plan to permit alcohol sales at some gun shows.
Officials, inundated for weeks with negative feedback, chose not to weigh in on the issue.
“The agency feels that this issue involves policy issues that are best left to the Legislature,” agency spokeswoman Carolyn Beck said in September. “We are hoping if it comes up again that it will be addressed by the Legislature.”
Most recently, lawmakers have been looking at the Texas State Board of Dental Examiners, asking it to scale back proposed rules that would affect the use of dental support organizations. Some dentists use the groups for tasks including marketing, accounting and scheduling.
Several lawmakers sent letters of concern to the board, saying they worry how the new rules could affect the overall dental industry.
Krause was among them.
“My concern is that the board is circumventing the Legislature’s intent in enacting these new rules and trying to go outside their bounds set by the Legislature,” his letter stated. “With the 84th Legislative Session [so close], I strongly recommend the Board refrain from its current course of action.”
Sometimes, expressing concerns to state agencies works, legislators say.
But when it doesn’t, Capriglione said, lawmakers have options: “We can come back and file legislation on that individual topic.”
Taylor, the senator-elect from Plano, decided to take a broader approach.
He filed Senate Joint Resolution 9, the Texas REINS Act (Rules from the Executive In Need of Scrutiny), geared toward letting lawmakers review and reject regulations proposed by agencies that don’t follow legislative intent.
“The Legislature gives rulemaking authority to agencies to handle largely administrative issues,” Taylor said. “There’s a rising concern they are using that authority to create new policy and effectively act as legislators.”
He said his proposal will add a level of scrutiny.
“I have talked to legislators, and the longer they serve in office, the more concern about this they have,” he said.