Over the holiday weekend, Breitbart Texas broke news that University of Texas System Chancellor Francisco Cigarroa had offered embattled University of Texas President Bill Powers an opportunity to resign or else be fired at the upcoming meeting of the UT Board of Regents. This demand is reported to be in response to new revelations brought forward by a whistleblower at the University.

The news pushed Powers’ defenders into overdrive (or into melt-down, depending on how one looks at it) and even caused Texas House Select Committee Chairmen Dan Flynn and Carol Alvarado to disregard their oaths of office in an attempt to stop the inevitable.

In a letter to University of Texas Board of Regents Chairman Paul Foster on Monday, Flynn and Alvarado issued a directive that no “adverse employment action” be taken against Powers. In accompanying media interviews, Alvarado complained that the Regents had “selective memory” and called any effort to fire Powers in contradiction to her and Flynn’s directive “disrespectful.”

But it is Flynn and Alvarado who are being disrespectful of their oaths of office, the Texas Constitution, and state law. At the beginning of each legislative session, the two “swear (or affirm) … [they] will to the best of [their] ability preserve, protect, and defend the Constitution and laws of the United States and of this State.”

State law is extremely clear about who is vested with the authority to make hiring decisions at our state universities and it isn’t a select committee of the Texas House.

Texas Government Code Section 51.352 calls boards of regents the “keystone of the governance structure” in higher education. The code goes on in Section 65.32 to explicitly grant the authority to hire and fire to the board of regents, stating that the boards “may remove any officer, member of the faculty, or employee connected with the system when in its judgment the interest of the system requires the removal.”

Flynn and Alvarado surely know about these provisions. They were even cited in the discredited report which was leaked to the press from the select committee. In fact, as we have previously reported, it is ironic that the committee is attempting to interfere with the Regents’ rights to make employment decisions at the University when that was precisely one of the reasons given for Governor James “Pa” Ferguson’s impeachment in 1917.

The reasons for such separation of powers is obvious. It is the executive branch that is tasked with executing the laws. The members of the various boards of regents exercise ultimate control over our state institutions because they are appointed by the Governor, who is elected by all of the people of Texas, and confirmed with the advice and consent of the whole of the Texas Senate. For a state representative from Houston and another state representative from Van, appointed to a select committee by a state representative from San Antonio, to attempt to issue “directives” to a constitutional board makes a mockery of our laws.

In fact, it is worth asking if Flynn and Alvarado are treading dangerously close to violating Section 39.03 of the Penal Code. That section states:

“A public servant acting under color of his office or employment commits an offense if he … intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.”

The members of the University of Texas Board of Regents indisputably possess the “right, privilege, or power” to make an employment decision regarding employees of the University of Texas. The only question is whether Flynn and Alvarado will persist in “intentionally denying or impeding” the exercise of that “right, privilege, or power.”

These actions represent just the latest chapter in the increasing lawlessness of the leadership of the Texas House of Representatives.

Photo Credit Texas Tribune

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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