TX. LAWS ON CONFIRMATION — GOV. PERRY, SBOE CHAIR

Feb 15, 2013 by

2.15.13 – While we are waiting breathlessly for Monday and for the confirmation of Barbara Cargill by the Senate Nominating Committee to continue to be the Chair of the Texas State Board of Education, I decided I needed to check on the laws surrounding confirmations.  Further on down the page, I have posted what I was able to find.

While I was looking in the Texas Education Code, I once again captured the section that says Thomas Ratliff is ineligible to be on the SBOE because of his being a registered lobbyist who works for Microsoft.

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THOMAS RATLIFF INELIGIBLE TO SERVE:

http://www.statutes.legis.state.tx.us/?link=ED

Texas Education Code EDUCATION CODE

TITLE 2. PUBLIC EDUCATION

SUBTITLE B. STATE AND REGIONAL ORGANIZATION AND GOVERNANCE

CHAPTER 7. STATE ORGANIZATION

(Page 38) — Sec. 7.103.  ELIGIBILITY FOR MEMBERSHIP. 

(c)  A person who is required to register as a lobbyist under Chapter 305, Government Code, by virtue of the person’s activities for compensation in or on behalf of a profession, business, or association related to the operation of the board, may not serve as a member of the board or act as the general counsel to the board.

Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.

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I also went back to Texas Attorney General Greg Abbott’s original ruling on the matter on 8.12.11:

 

Opinion No.  GA-0876

Go to: http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2011/htm/ga-0876.htm

Re: Construction of section 7.103(c), Education Code, regarding the eligibility of a registered lobbyist for membership on the State Board of Education (RQ-0948-GA)

https://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2011/pdf/rq0948ga.pdf

 

 

Summary: Subsection 7.103(c), Texas Education Code, precludes certain registered lobbyists from serving on the State Board of Education (“Board”). A person who has been retained to communicate directly with the legislative or executive branch to influence legislation or administrative action in or on behalf of a profession, business, or association on a matter that pertains to or is associated or connected with any of the statutorily enumerated powers or duties of the Board is not eligible to serve on the Board. Thus, a registered lobbyist who has been paid to lobby the legislative or executive branch on a matter relating to Board business is ineligible to serve on the Board. The question of whether any person engaged in lobbying activity is ineligible under subsection 7.103(c) is a fact question that is inappropriate to an attorney general opinion.

 

Absent a mechanism to cure a violation in subsection 7.103(c), we cannot advise that a member of the Board may cure his or her ineligibility under the subsection.

 

[As soon as the TAG issued this ruling, I had two well-known lawyers who immediately called me and explained that the “cure” statement meant that there was nothing Ratliff can do to fix his situation. He is what he is – a registered lobbyist who lobbies the legislature and also whose client(s) do business with the SBOE (e.g., Microsoft).

 

 

When Ratliff testified glowingly before the Senate Education Committee on 3.29.11 about SB 6 – HB 6, which he said he just “loves,” he did not bother to mention the fact that he had been a registered lobbyist for Microsoft for 12 years.  He introduced himself as a member of the Texas State Board of Education which gave the legislators the distinct impression that he was representing the SBOE at the hearing which he certainly was not.  SB 6/HB 6 contained language that transformed the payout of the Permanent School Fund, and Microsoft has derived millions of dollars from these changes. – Donna Garner]

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In my research, I then found the section in the Texas Government Code (Section 665.001, Impeachment Proceeding, and Section 665.004) that tells how a person who is a member of  a “state institution” can be impeached: http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.665.htm

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I finally located the information I originally started out to find concerning the appointment of the SBOE Chair by the Governor:

http://www.statutes.legis.state.tx.us/?link=ED

Texas Education Code EDUCATION CODE

TITLE 2. PUBLIC EDUCATION

SUBTITLE B. STATE AND REGIONAL ORGANIZATION AND GOVERNANCE

CHAPTER 7. STATE ORGANIZATION

(Page 40) — Sec. 7.107.  OFFICERS.  (a)  The governor, with the advice and consent of the senate, shall appoint the chair from among the membership of the board.  The chair serves a term of two years.

(b)  At the board’s first regular meeting after the election and qualification of new members, the board shall organize, adopt rules of procedure, and elect by separate votes a vice chair and a secretary.

(c)  A person who serves two consecutive terms as chair is ineligible to again serve as chair until four years have elapsed since the expiration of the second term.

Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.

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http://governor.state.tx.us/appointments/process/

5. Senate Confirmation

The appointments process for the majority of boards and commissions, by virtue of the procedure prescribed in the Constitution of the State of Texas, requires that the nomination of a person by the Governor be confirmed by the Texas Senate. The Senate considers the confirmation of an appointment when they are in session, which is every odd-numbered year, or when the Governor calls a Special Session.

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Texas Senator Tommy Williams (District 4 – The Woodlands) has already spoken favorably about Barbara Cargill at the Senate Nominating Committee:

 

http://texaspolitics.laits.utexas.edu/1_4_1.html

 

The governor’s appointment power is limited by the requirement that two-thirds of the Senate confirm appointments. The confirmation process is also shaped by the unwritten tradition of senatorial courtesy. This custom allows the senator of the district in which a nominee lives to effectively veto the appointment. If a senator objects to a nomination, his or her colleagues in the Senate respect the objection and will not vote to confirm. However, the Legislature must be in session to effectively exercise this veto. If a vacancy occurs while the Legislature is not in session (and it regularly meets for less than six months every two years), appointees can serve in the position until the Senate convenes and takes up confirmations. So a governor may make an interim appointment even knowing the nominee will later be rejected. The nominee gets to serve for a limited period of time and perhaps can even use the opportunity to convince enough senators that he or she should keep the post.

 

 

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http://www.constitution.legis.state.tx.us/

THE TEXAS CONSTITUTION

ARTICLE 4. EXECUTIVE DEPARTMENT

(Pages 7 – 8)

Sec. 12.  VACANCIES IN STATE OR DISTRICT OFFICES.  (a) All vacancies in State or district offices, except members of the Legislature, shall be filled unless otherwise provided by law by appointment of the Governor.

(b)  An appointment of the Governor made during a session of the Senate shall be with the advice and consent of two-thirds of the Senate present.

(c)  In accordance with this section, the Senate may give its advice and consent on an appointment of the Governor made during a recess of the Senate.  To be confirmed, the appointment must be with the advice and consent of two-thirds of the Senate present.  If an appointment of the Governor is made during the recess of the Senate, the Governor shall nominate the appointee, or some other person to fill the vacancy, to the Senate during the first ten days of its next session following the appointment.  If the Senate does not confirm a person under this subsection, the Governor shall nominate in accordance with this section the recess appointee or another person to fill the vacancy during the first ten days of each subsequent session of the Senate until a confirmation occurs.  If the Governor does not nominate a person to the Senate during the first ten days of a session of the Senate as required by this subsection, the Senate at that session may consider the recess appointee as if the Governor had nominated the appointee.

(d)  If the Senate, at any special session, does not take final action to confirm or reject a previously unconfirmed recess appointee or another person nominated to fill the vacancy for which the appointment was made:

(1)  the Governor after the session may appoint another person to fill the vacancy; and

(2)  the appointee, if otherwise qualified and if not removed as provided by law, is entitled to continue in office until the earlier of the following occurs:

(A)  the Senate rejects the appointee at a subsequent session; or

(B)  the Governor appoints another person to fill the vacancy under Subdivision (1) of this subsection.

(e)  If the Senate, at a regular session, does not take final action to confirm or reject a previously unconfirmed recess appointee or another person nominated to fill the vacancy for which the appointment was made, the appointee or other person, as appropriate, is considered to be rejected by the Senate when the Senate session ends.

(f)  If an appointee is rejected, the office shall immediately become vacant, and the Governor shall, without delay, make further nominations, until a confirmation takes place.  If a person has been rejected by the Senate to fill a vacancy, the Governor may not appoint the person to fill the vacancy or, during the term of the vacancy for which the person was rejected, to fill another vacancy in the same office or on the same board, commission, or other body.

(g)  Appointments to vacancies in offices elective by the people shall only continue until the next general election.

(h)  The Legislature by general law may limit the term to be served by a person appointed by the Governor to fill a vacancy in a state or district office to a period that ends before the vacant term otherwise expires or, for an elective office, before the next election at which the vacancy is to be filled, if the appointment is made on or after November 1 preceding the general election for the succeeding term of the office of Governor and the Governor is not elected at that election to the succeeding term.

(i)  For purposes of this section, the expiration of a term of office or the creation of a new office constitutes a vacancy.

(j)  Expired.

(Amended Nov. 3, 1987, and Nov. 6, 1990; Subsec. (j) added Nov. 6, 1990, and expired Jan. 1, 1991.)

 

Donna Garner

Wgarner1@hot.rr.com

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