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HomeMy WebLinkAboutHistory of Texas Action on Continuity of State and Local Government HISTORY OF TEXAS ACTION ON CONTINUITY OF STATE AND LOCAL GOVERNMENT BY BILL HOLLOWELL The present Constitution of the State of Texas was adopted February 15, 1876. Like the previous Constitution of the Republic of Texas and the several subsequent Constitutions of the State of Texas it was written in a time when things were simple and nuclear war did not exist as a possibility. As a result of the 1957 Governor's Conference and the 1959 Council of State Government suggested State Legislation for Continuity of Government, several members of the Texas Legislature felt it was necessary to modernize the State Constitution and up -date State law to deal with the nuclear age. As a result, several bills and proposed constitutional amendments were presented to the Texas Legislature in 1959. Senate Joint Resolution No. 4 (SJR4) proposed an amendment to the Constitution of Texas, authorizing the Texas Legislature to provide for the continuity of the legislative, executive and judicial functions of the State Government and of its political subdivisions in the event of an attack or a series of attacks by an enemy of the United States, causing or which may cause, disruption of the State government and its various political subdivision. During the 1959 Legislative session the proposed amendment was adopted by the Senate but did not reach any House action. The 1961 session of the Legislature considered the matter once again. This time it passed both Houses but it was amended to allow the Legislature to set up some system of continuity of all state and local agencies, but - 1 - specifically excepts members of the Legislature. In the 1959 proposal from the Council of State Governments the Legislature was also included so that this amendment departed from the original recommendations. When this Constitutional amendment was presented to the voters of Texas it was adopted on November 6, 1962. In compliance with this amendment the Texas Legislature enacted an Emergency Interim Executive Succession Act (Act 6252 -10 Rev. Civ. St. of Tex.). This Act provides for 18 successors to the Office of Governor if the Governor is unavailable for any reason. In addition, the Legislature enacted the Emergency Interim Public Office Succession Act (Act 6252 -10a Rev. Civ. St. of Tex.). This Act provided for emergency interim succession to state and local public offices, except those of the Governor, already covered by the other act, the Judiciary, which is already covered by a provision in the Constitution which allows the Governor, or in some cases the County Court, to fill a vacancy by appointment until the next state -wide general election. No provision in this Act was made to provide for emergency interim succession of the members of the legislature because the Constitutional Amendment had not permitted this action with reference to the Legislative branch of State government. This created a very big gap in the State Continuity program because only the Legislature can appropriate state funds or enact State laws. There are 31 State Senators and 150 State Representatives in the Texas Legislature. Harris County (Houston area) has 26 State Representatives and the other big cities have large delegations, also. Article 3, section 10 of the Texas Constitution states "Two- thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and compel the attendance of absent members, in such manner and under such penalties as each House may provide." - 2 - From this we can see the potential problem. If Houston and several other major cities in Texas were nuclear targets (they are a high risk area according to TR 82, April 1975 DCPA P. 64) and there was little warning so many members of the Legislature might be victims of the attack it would be impossible to obtain a quorum to transact state business. Since in Texas Legislators must be elected and cannot be appointed under the State Constitution, the whole State Government might be paralyzed if the Legislative branch could not function. To correct this situation a Constitutional amendment will be introduced in 1983 to provide a method for the Legislature to operate even under the conditions of nuclear war. This amendment should provide, by law, for emergency interim successors to the offices of state senator and state representative. It should also allow the Legislature to suspend Constitutional rules regarding quorum and other restrictive Constitutional procedural rules for a limited time during a nuclear, chemical, bacteriological, or biological war in order for the State to be able to continue to operate in such an emergency. These Constitutional rules could be replaced with interim Legislative rules adopted by the Legislature to be used only until the emergency is over. The Council of State Government Program for 1959 Suggested State Legislation for Continuity of Government recommended several options to provide for interim legislative succession. Some of these are listed as follows: 1. The Legislator himself designates his emergency interim successors and specifies their order of succession to his powers and duties. It was - 3 - suggested each Legislator designate not fewer than three or more than seven emergency interim successors and their order of succession. 2. If Legislator fails to designate emergency interim successors then the chairman of the same political party in the same house as such Legislator shall designate as many as are required. 3. Designation of emergency interim successors made by the Governor or by members of the County Board of Commissioners or similar local government unit, with or without recommendations received from local political party organizations. In 1959 when the first proposed Constitutional amendment was proposed to the Texas Legislature to provide for Continuity of State and Local Government by providing an amendment to the Texas Constitution to allow for a system of prompt temporary succession to the powers and duties of public office a bill known as Senate Bill 343 was introduced in the Texas Senate which was to become law and if the authorizing Constitutional amendment was adopted. This bill would have provided that if the Legislator failed to designate the required minimum number (not less than 3 nor more than 7) of emergency interim successors within thirty days following the effective date of the act then the President pro tempore of the Senate, for the Senate, and the Speaker of the House, for the House, shall designate as many emergency interim successors as might be required to achieve such minimum number. When this bill was considered by the Senate State Affairs Committee an amendment was adopted to reduce the minimum number to be designated to one and the maximum to be designated to 3. - 4 - This bill did not pass the Legislature and since the Constitutional amendment adopted in 1962 did not allow for temporary interim succession for members of the Legislature, the issue became moot and will be until the Texas Constitution is amended to allow this action. This amendment to the Constitution will be introduced in 1983 and if it is adopted a bill will have to be passed to provide for a system of temporary interim succession for members of the Legislature. Although not mentioned in any of the literature or studies on this subject in the case of the State of Texas, there is another option which offers advantages not found in the other suggested procedures. In Texas, members of the Legislature are members also of the Employees Retirement System of the State of Texas. It is suggested that in the type of emergency that would come from nuclear war all of the experience and training the former member has could be used by passing a law to provide that temporary interim succession for members of the legislature be filled by former members from the same district or area. This system would at least provide a temporary interim successor who had at one time been elected to office. The former member would be experienced and trained. In such an emergency this would be a real advantage because there would be little time for training. Also, many of the former members are drawing retirement so the expense would be much less. It is suggested they should be designated by seniority or number of years of service. Legislative action is also needed to provide for a State Political Subdivision Emergency Location Act to provide authorization for emergency temporary locations for the seats of government of political subdivisions of the State and for the exercise of governmental powers and functions thereat. - 5 - The Texas,.Constitution, like that of many other states, establishes the location of the seat of government. Article III, Sec. 58 reads as follows: The Legislature shall hold its sessions at the City of Austin, which is hereby declared to be the seat of government." Article IV, Sec. 8 reads as follows: "The Governor may, on extraordinary occasions, convene the Legislature at the seat of Government, or at a different place in case that should be in possession of the public enemy or in case of the prevalence of disease threat. His proclamation therefor shall state specifically the purpose for which the Legislature is convened." These two provisions should be amended by a new Constitutional provision that would allow the Legislature by concurrent resolution or law to establish a new location or locations and make such laws, appropriations and rules as are necessary to provide for operation of state government under the emergency conditions caused by nuclear, chemical, bacteriological, or biological attack upon the United States or the State of Texas. A constitutional amendment to accomplish this will also be sought in 1983. In 1959 a bill was introduced in the Legislature to try to get around these constitutional provisions and accomplish this by statute rather than by constitutional amendment. Senate Bill 342 attempted this by saying an attack as defined in this act is found and declared to ful- fill the conditions of "in possession of the public enemy" and "the prevalence of disease" as used in Section 8 of Article IV of the Constitution of Texas in view of the development attained in weapons and processes of warfare. This bill was not enacted into law and it is pro- bably a good thing because it probably would not have been constitutional. A Constitutional amendment would remove this legal doubt and is the correct legal remedy. - 6 -