Ken Paxton, in His Official Capacity as Attorney General of Texas, and Greg Abbott, in His Official Capacity as Governor of Texas v. American Oversight

Supreme Court of Texas

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No. 24-0162

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Ken Paxton, in his Official Capacity as Attorney General of

Texas, and Greg Abbott, in his Official Capacity as Governor of

Texas,

Petitioners,

v.

American Oversight,

Respondent

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Third District of Texas

═══════════════════════════════════════

JUSTICE YOUNG, concurring.

The judgment below depends on two mistaken holdings. The first

is statutory: that the legislature attempted to authorize district courts to

enforce the Public Information Act against the State’s executive officers

by writ of mandamus. The second, which is applicable only to the governor,

is constitutional: that the legislature could authorize a district court to

issue a writ of mandamus against the governor. I join the opinion of the

Court, which resolves the case on purely statutory grounds and thus

properly declines to address the second holding below. I write separately

to address that holding, however, because it reflects an error of

constitutional dimension that should not pass unnoticed.

The Constitution describes the governor as “the Chief Executive

Officer of the State.” Tex. Const. art. IV, § 1. It requires him, and him

alone, to “cause the laws to be faithfully executed.” Id. § 10. It excludes

him, and him alone, from this Court’s constitutional mandamus

jurisdiction by allowing the legislature to vest in this Court the power

“to issue writs of quo warranto and mandamus in such cases as may be

specified, except as against the Governor of the State.” Id. art. V, § 3(a).

In isolation, it is linguistically possible to read § 3(a) as the court of

appeals necessarily did: that the framers and ratifiers under no

circumstances wanted the State’s highest court to review the governor’s

actions or inactions by mandamus, but they were perfectly content for any

district court in Texas to do so. But another possible reading is that if this

Court lacks mandamus authority over the governor, then no court has

such authority. Text must always be read in its context, and particularly

for a constitutional provision, courts must strive to give the text its

original public meaning. Under a proper analysis, it is highly likely that

no court in this State is now or ever can be authorized to issue a writ of

mandamus against the governor.

Bound up in the immediate question—the governor’s constitutional

amenability to mandamus in a district court—is something larger: the

Constitution’s vision of the governor’s role in our constitutional order. My

tentative view is that the court of appeals too easily disregarded the

unique constitutional status of the governor, at least in part due to the

conventional wisdom holding that Texas lacks an institutionally “strong”

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governor and that our Constitution does not erect a “unitary executive.”

The conventional wisdom may not be entirely wrong, but it seems to be

far from entirely right.

True, unlike the federal chief executive, the governor may not

choose the other executive officers except the secretary of state (or if there

is a vacancy, and then, only until the next election). That limitation does

not say very much about what the governor can do. After all, the

constitutional provisions I quote above—making the governor the chief

executive officer and charging him with ensuring the faithful execution

of the laws—establish him not just as an executive official, but as the

superior executive official. Other provisions reinforce that understanding.

Without quibbling over terminology—“unitary,” “modular,” “directed,”

“coordinated,” or some other adjective—the governor clearly has

constitutional authority that transcends the rest of the executive branch.

He is not just first among equals.

Many governors since 1876 may well have preferred to choose the

other executive officers themselves. But the popular election of those

officers represents the People’s desire to ensure that at least some

executive-branch decisions begin with a diversity of perspectives brought

from a group of leaders who have every incentive to pursue what they

regard as the best public policy of the State. Because the governor may

not hire or fire them, one would expect them to voice their views candidly

and independently. In many instances, the governor may conclude that

this “plural” executive well serves the interests of the State, requiring no

further intervention from him beyond using his political tools (which, of

course, are considerable).

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But ultimately it is the governor’s constitutional duty to ensure the

proper functioning of the entire executive branch. In part, that is what it

means to be a “chief executive officer.” At a minimum, therefore, being

the CEO likely means that there are certain circumstances in which the

governor may or even must settle the executive branch’s policy even

despite disagreement from other executive officers. If the governor

invokes that authority, he will then assume direct responsibility for the

relevant decisions and results.

Under this view, grounded in its text, the Constitution seems to

construct a nuanced and sophisticated mechanism in which Texas gets the

best of both worlds. It begins with a distribution of executive authority

that facilitates the airing-out of competing perspectives and creates

incentives to refine differences. It avoids the problem of echo chambers

that can follow when officers are primarily beholden to an individual

rather than to the People. But the Constitution’s elevation of the governor

as chief executive officer also adds the possibility of a uniform executive-

branch position when such uniformity is necessary for him to discharge

his constitutional duties. After all, “[i]n the construction of Constitutions,

as well as of statutes, it has been often held that the powers necessary

to the exercise of a power clearly granted will be implied,” Imperial

Irrigation Co. v. Jayne, 138 S.W. 575, 586 (Tex. 1911), and it would be

strange indeed if this principle applied to everyone except the governor.

In this duality, therefore, the Constitution simultaneously

encourages a distribution of authority but allows for uniformity. Exactly

how the Constitution authorizes the governor to be “the chief executive

officer” in the face of potential disagreement largely exceeds the scope of

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my analysis today. It is enough for now to recognize that the governor’s

CEO title and his structural role and responsibilities mean that his

authority is sometimes far greater than the conventional wisdom might

suggest. That authority, in turn, is relevant to today’s case. It shows why

the governor alone, as the head of the co-equal executive branch, is no

more subject to mandamus in any court than the legislature as a body

could be. If mandamus could issue from any court, it would probably have

to be from the Supreme Court, the head of this branch. But even that

would be doubtful. The concept of mandamus—certainly in 1876, if to a

lesser degree today—conveys a sense of command that uneasily fits when

directed from the head of one branch to the head of another.

I reiterate that the Court properly resolves this particular dispute

as to both the governor and the attorney general on purely statutory

grounds. The Court itself should not reach out to decide constitutional

matters unless unavoidable. The luxury of a concurring opinion is the

opportunity to identify and begin to sketch the contours of complex and

important issues that arise within a case without binding even its author,

much less the Court as a whole, to any position. The very fact that this

Court has not yet given the chief-executive-officer clause any real legal

significance further justifies both the Court’s not addressing that matter

now and my flagging it for future purposes.

I proceed as follows. Part I briefly recounts how the constitutional

issue arose in this case. It then addresses the apparent textual ambiguity

within Article V, § 3(a) and § 8—whether any court may exercise

mandamus jurisdiction over the governor—and suggests that, at least in

part, reading them in light of Article IV’s text and history may resolve it.

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In Part II.A, therefore, I invoke various tools to begin ascertaining

the original public meaning of the chief-executive-officer clause. Although

I emphasize that my views remain tentative, and I intend humility in their

expression, it seems clear from this analysis that the governor’s CEO title

is no mere honorific. It instead reflects actual authority that the governor,

when acting as chief executive officer, may invoke to supervise and

manage the executive branch. This Court’s cases that are close in time to

the Constitution’s enactment reflect that understanding. From there, I

more fully address this case’s central question in Part II.B and explain

why it is likely that no court could subject the governor to mandamus

review by turning to, among other things, the history of the legislature’s

conferral of authority on Texas courts to issue the writ and this Court’s

early discomfort with doing so against any executive officer. I briefly

examine federal and early state court practices, which lend additional

support to this conclusion.

Finally, in Part III, I identify two potential consequences of a proper

understanding of the governor’s role as chief executive officer. For one,

my analysis casts some of this Court’s precedents that might seem to

suggest an undue constriction of gubernatorial authority in a different

light, and it explains why those cases need not be read to do so. For

another, it raises the question of what legal tools the governor may have

to ensure that the executive branch faithfully executes the law—a

question that only future cases can fully resolve.

I

At the heart of this case is American Oversight’s invocation of the

Public Information Act to demand various communications to and by the

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governor and the attorney general. See Tex. Gov’t Code § 552.001(a)

(providing a general right “to complete information about the affairs of

government and the official acts of public officials and employees”).

American Oversight alleges that the governor and the attorney general

withheld public information, leading it to seek writs of mandamus

against both officials in a Travis County district court. Government

Code § 552.321(b) provides that a writ of mandamus to enforce the Act

must be filed in that court, whereas Government Code § 22.002(c)

provides that this Court alone may issue writs of mandamus “against

any of the officers of the executive department.” The court of appeals

regarded § 552.321(b) as an exception to § 22.002(c) and ultimately

determined that American Oversight should have the opportunity to

secure the writs in the district court. See 683 S.W.3d 873, 882–83, 889

(Tex. App.—Austin 2024). Stated more simply, the court concluded that

the Act vests the district courts with jurisdiction to issue writs that were

otherwise exclusively issuable from the State’s highest court. Id.

Behind the court’s construction of the Government Code was its

construction of Article V, § 3(a) and § 8 of the Constitution. The latter

provides that the district courts have original jurisdiction over “all

actions . . . except in cases where exclusive, appellate, or original

jurisdiction may be conferred by this Constitution or other law on some

other court.” Tex. Const. art. V, § 8. The former, Article V, § 3(a), vests

this Court with appellate jurisdiction “over all cases except in criminal

law matters and as otherwise provided in this Constitution or by law.”

And it further authorizes the legislature to “confer original jurisdiction

on the Supreme Court to issue writs of quo warranto and mandamus in

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such cases as may be specified, except as against the Governor of the

State.” Id. In isolation, that text is susceptible of two readings:

1. the Constitution ensures that the State’s highest court may

never issue a writ of mandamus against the governor, but it is

wholly unconcerned about allowing any lower court to do so; or

2. the textual restriction of this Court’s mandamus authority

means that the only court that might have such authority still

may not subject the governor to its mandamus jurisdiction.

The fact that the court of appeals chose the former reading underscores

that interpreting a legal text requires a full appreciation of its context.

Cf. Malouf v. State ex rels. Ellis, 694 S.W.3d 712, 736 (Tex. 2024) (Young,

J., dissenting) (quoting Pulsifer v. United States, 601 U.S. 124, 141 (2024)).

The court of appeals’ reading is linguistically possible but yields a result

that—to put it mildly—should have struck the court of appeals as odd:

that the Constitution contemplates jurisdiction for a district court

anywhere in the State to issue a writ of mandamus against the governor

while forbidding this Court from ever doing so.

Especially when a court reads a significant legal provision in a way

that generates a strange outcome, the court should pause, think again,

and perhaps even a third time. Constitutional text requires a special

commitment to understanding its original public meaning. Should the

judiciary err on that front, the sole way to correct that error outside the

judiciary itself is through the extremely onerous exercise of the sovereign

prerogative of the People to amend the Constitution. Courts’ commitment

to understanding constitutional text with as much precision as possible

is, of course, part of their job. But it is an especially delicate part because

it is also the one and only way to ensure that when the People do amend

their Constitution, it is to change its meaning to something they now

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want it to mean, rather than to restore the meaning that it always had

but that the judiciary wrongly abrogated.

That the court of appeals’ foundational premise touches on the

governor’s authority only casts the point in sharper relief. The courts

must neither expand nor erode the constitutional role or authority of

another branch, and a decision that would have either effect should,

again, be one that courts consider and reconsider with caution and self-

doubt. Here, the court reached a startling result by impliedly twisting

the negative-implication (also known as the expressio unius) canon, as it

found that even though this Court is prohibited from issuing such writs,

the authority could be properly placed elsewhere: “The expression of one

thing”—that this Court cannot issue the writ against the governor—was

“an expression of all that share[d] in the . . . prohibition involved.”

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 107 (2012).

This analysis ignored the rest of the Constitution’s text, as well as

the history and tradition animating both that text and the legislature’s

conferral of mandamus authority on the judiciary. Beyond all that, the

court of appeals never grappled with the most severe consequence of its

holding—namely, that a trial court from anywhere in Texas could

commandeer the highest authority in the executive department.

The opposite construction—that no court can issue a writ of

mandamus against the governor—is the one with intuitive appeal.

There is no precedent to the contrary. And given that this Court has

always considered mandamus to be an extraordinary remedy, it makes

sense that, if any court could do so, this Court alone could have

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jurisdiction to issue such a writ against the executive officers. Disputes

giving rise to such mandamus requests are likely to involve statewide

issues of immense public importance. And that no court has mandamus

jurisdiction over the governor in particular would reflect the

constitutional separation of powers between the three coordinate

branches of government. Still, weighing the relative stakes is not a

satisfactory answer to the legal question of whether any court may issue

a writ of mandamus against the governor.

The Court today properly avoids all this, thereby “[s]etting aside the

constitutional question.” Ante at 11. Yet we cannot hope to ever answer it

without looking at other constitutional text, context, history, and tradition.

Take how Article V, § 3(a) of the Constitution immunizes only the

governor, and not the other executive officials, from becoming targets of

this Court’s writs of mandamus. And like Article V, § 3(a), Article IV, § 1

distinguishes the governor from the rest of the constitutional executive

officers by providing that

[t]he Executive Department of the State shall consist of a

Governor, who shall be the Chief Executive Officer of the

State, a Lieutenant Governor, Secretary of State,

Comptroller of Public Accounts, Commissioner of the

General Land Office, and Attorney General.

(Emphasis added.) Apart from denoting his role as chief executive officer,

the Constitution provides that the governor is duty-bound to “cause the

laws to be faithfully executed.” Tex. Const. art. IV, § 10. It provides that

he alone may demand from the rest of the executive branch “information

in writing” about “any subject relating to the duties, condition,

management and expenses of their respective offices,” subject to criminal

“punish[ment]” and “remov[al] from office.” Id. § 24.

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The combined force of all these—or at least these—constitutional

provisions is what commands my attention. Specifically, in giving the

chief-executive-officer clause its original public meaning, we can

understand whether, given that meaning, any court could issue a writ of

mandamus against him. His authority as chief executive officer, after all,

elevates him above the other constitutional and statutory inferior officers

who exercise executive authority. Charged with causing the laws to be

faithfully executed, the governor’s role underscores his immunity from

our mandamus authority. I explore all this, and more, below.

II

This Part proceeds in two subparts. First, I recount how the

governor came to be called chief executive officer in our constitutional

system and identify clues that might give that clause its original public

meaning. Second, I summarize the historical understanding of the writ

of mandamus, explore the legislature’s prior conferrals of authority on the

courts to issue the writ, highlight some early opinions from this Court,

and comment on how the federal courts and our sister States approached

“mandamusing” the chief executive officer.

A

The Chief Executive Officer. Ascertaining the original public

meaning of the chief-executive-officer clause benefits from examining a

variety of textual sources from the nineteenth century, this Court’s

opinions that reference the clause, and records of the constitutional

conventions of 1845 and 1875. Like “the federal Constitution, we have

records of the debates from the convention[s],” but “[t]hese records may

be even more useful than the federal versions,” as “[t]hey were not drafted

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in secret, and they are not overshadowed by interpretations offered at

subsequent ratifying conventions.” Holden T. Tanner, Lone Star

Originalism, 27 Tex. Rev. L. & Pol. 25, 83–84 (2023).

While my views remain tentative and my research incomplete, I

hope to spur interested parties, amici, scholars, the profession, and fellow

judges to supplement it, regardless of whether their contributions confirm

or rebut the views that I express here. Thus far, however, I find that

notwithstanding his inability to choose certain high members of the

executive department, the governor—when acting as chief executive

officer—has constitutionally conferred authority to supervise and manage

the affairs of the executive department. The constitutional executive

officers owe their positions not to the will of the governor but of the People,

of course, and that independence reflects the genius of our constitutional

design, which encourages the governor to lead what could become a

“team of rivals” without resorting to the political process or the courts.

Consider first, however, that a leading Texas constitutional scholar

has said that the clause “apparently has no legal significance.” George D.

Braden et al., The Constitution of the State of Texas: An Annotated and

Comparative Analysis 301 (1977). This conclusory statement strikes me

as highly doubtful. In expounding our Constitution, no less than its

federal analogue, courts consider it axiomatic that “every word must have

its due force, and appropriate meaning.” Williams v. United States, 289

U.S. 553, 572–73 (1933) (quoting Holmes v. Jennison, 39 U.S. 540, 570–

71 (1840)). “[N]o word was unnecessarily used, or needlessly added,”

meaning that we must treat each as if it was “weighed with the utmost

deliberation, and its force and effect to have been fully understood.” Id.

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In doing so, we dignify “the high talent, the caution, and the foresight of

the illustrious men who framed” our Constitution. Id.

It was not just the framers but the People, after all, who designated

the governor as the chief executive officer of the State. By removing the

chief executive’s ability to name for himself his whole cabinet, the People

departed markedly and purposefully from the federal model. Texans,

seasoned by years under the federal Constitution, distributed some

executive power among officials of their, and not the governor’s, choice.

In the wake of Reconstruction, “the proper limitations to place on an

executive branch” that some had “perceived as tyrannical” was an

obvious focus at the framing. William J. Chriss, Six Constitutions Over

Texas: Texas’ Political Identity, 1830–1900, at 130 (2024) (noting a

sentiment among some 1875 constitutional convention delegates “who

more than anything wanted homestead protection, railroad regulation,

and emasculation of the spendthrift Reconstruction government that

had raised their taxes, worsened their lot, and diluted their political

ability to protect themselves”). And still, they put the governor above

the rest of the executive branch, conveying added responsibility and the

power incident to it.

The “chief executive officer” title was new in the 1876 Constitution.

Given this change’s potential significance, I trace its use from the 1836

Constitution of the Republic of Texas to the Texas Constitution of 1869.

During those years, “the executive authority” or the “supreme executive

power” was “vested in a Chief Magistrate.” The Constitution of the

Republic of Texas of 1836 provided that

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[t]he executive authority of this government shall be vested

in a chief magistrate, who shall be styled the president of

the republic of Texas.

Repub. Tex. Const. of 1836, art. III, § 1, reprinted in 1 H.P.N. Gammel,

The Laws of Texas 1822–1897, at 13, 13 (Austin, Gammel Book Co. 1898).

The style changed slightly in 1845:

The supreme executive power of this State shall be vested

in a Chief Magistrate, who shall be styled the Governor of

the State of Texas.

Tex. Const. of 1845, art. V, § 1. Meanwhile, the modern cabinet was

beginning to take shape with the executive article providing for a

lieutenant governor, secretary of state, treasurer, and comptroller. Id.

§§ 12, 16, 23.

Article V, § 1 did not change whatsoever in the 1861 or 1866

constitutions, each replicating the 1845 Constitution. Compare id. art.

V, § 1, with Tex. Const. of 1861, art. V, § 1, and Tex. Const. of 1866, art.

V, § 1. It was not until 1869 that Article V, § 1 became Article IV, § 1

(with the executive and judiciary articles flipping places). New Article

IV looked a bit different from its predecessor but still maintained the

governor’s designation as chief magistrate:

The executive department of the State shall consist of a Chief

Magistrate, who shall be styled the Governor, a Lieutenant

Governor, Secretary of State, Comptroller of Public Accounts,

Treasurer, Commissioner of the General Land Office,

Attorney General and Superintendent of Public Instruction.

Tex. Const. of 1869, art. IV, § 1. The 1869 version was the first “to

expressly define the different executive offices which constitute the

executive department.” Bledsoe v. Int’l R.R. Co., 40 Tex. 537, 565–66

(1874). By listing these executive offices, the People vested the executive

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power “in the entire magistracy composing the executive department,

with the powers of each separately defined,” thereby “more clearly

defin[ing] the boundaries of power” among “the different offices

composing the executive department.” Id. at 566.

In the 1876 Constitution, the People finally provided that the

governor shall be the “chief executive officer” of the State. When they

adopted Article IV, § 1 in 1876, it provided that

[t]he executive department of the State shall consist of a

governor, who shall be the chief executive officer of the

State, a lieutenant governor, secretary of State, comptroller

of public accounts, treasurer, commissioner of the general

land office and attorney general.

Tex. Const. art. IV, § 1 (amended 1995, eliminating the office of the

treasurer). The shift from “chief magistrate” to “chief executive officer,”

like any overt shift in constitutional or even statutory text, is

presumptively significant. For modern ears, the former term may sound

somewhat antiquated, and the latter may sound somewhat corporate.

As I describe below, I find substantial overlap between the two—some

potential distinctions, but certainly no dramatic shift. Both terms,

meanwhile, implicate significant oversight responsibilities.

“Chief,”1 of course, first modified “magistrate,” which was defined

throughout that period as “[a] public civil officer.” Magistrate, Webster’s

1845; Magistrate, Webster’s 1868 (“A person clothed with power as a

1 Between 1845 and 1897, “chief” referred to the “[h]ighest in office or

rank,” the “most eminent,” and “the head” of a (typically military) group. Chief,

Webster’s An American Dictionary of the English Language (rev. ed. 1845)

[hereinafter Webster’s 1845]; Chief, Webster’s A Dictionary of the English

Language (acad. ed. 1868) [hereinafter Webster’s 1868]; Chief, Webster’s An

American Dictionary of the English Language (1897) [hereinafter

Webster’s 1897].

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public civil power.”); Magistrate, Webster’s 1897 (defining the term as a

“public civil officer”). The presidents of the United States were often

called—and called themselves—the “chief magistrate,” as President

Washington and President Lincoln both did even in their inaugural

addresses.2 “Chief” then modified the compound noun “executive officer.”

“Executive” was defined as an administrator or superintendent of

government. Executive, Webster’s 1845; Executive, Webster’s 1868;

Executive, Webster’s 1897. Like the definitions for “magistrate,” those for

“executive” often included the word “officer”—someone who held public

office or was authorized to perform a public duty. Officer, Webster’s 1845;

Officer, Webster’s 1868; Officer, Webster’s 1897.

The dictionary distinctions between “chief magistrate” and “chief

executive officer,” therefore, seem rather slight.3 “Chief magistrate”

2 President George Washington, Second Inaugural Address (Mar. 4,

1793) (“I am again called upon by the voice of my country to execute the functions

of its Chief Magistrate.”); President Abraham Lincoln, First Inaugural Address

(Mar. 4, 1861) (“The Chief Magistrate derives all his authority from the

people . . . .”).

3 This is hardly surprising given that delegates at even the 1845

convention were already referring to the governor not only as the chief

magistrate but also as the chief executive. E.g., Wm. F. Weeks, Debates of the

Texas Convention 120 (Houston, J. W. Cruger 1846) [hereinafter 1845 Debates]

(referring to the governor as “the Executive”); see also id. at 129 (referring to the

governor in one breath as “the Executive,” “the chief,” and the “chief magistrate

of the country, standing above all the officers of the State”). Delegates at the

1875 convention likewise frequently referred to him simply as “the executive.”

E.g., Debates in the Texas Constitutional Convention of 1875, at 157 (Seth

Shepard McKay ed., 1930) [hereinafter 1875 Debates] (referring to the governor

as the “executive” and noting that “it [was] the duty of th[e] Convention to give

the chief executive authority to protect [the People]”). When the 1875

“Committee on Executive Department” reported the initial executive article that

the convention was to debate, it already styled the governor as the “chief

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described the highest or head individual who held and could exercise civil

governmental authority; “chief executive officer” described the highest or

head administrator or superintendent who held and was authorized to

perform the responsibilities of a public office.

Confirming a substantial degree of overlap, at least in this context,

is corpus linguistics, which helps verify the contexts in which terms—like

“chief magistrate” and “chief executive officer”—were used throughout

different historical periods.4 I find (or, in fairness, my law clerk who in

fact can run the searches has shown me) that the common usage of “chief

magistrate” between 1860 and 1879 referred most often to the president,

then to governors, and sometimes to mayors.5 When compared to “chief

executive officer” and no longer as the “chief magistrate.” See Journal of the

Constitutional Convention of the State of Texas, Begun and Held at the City of

Austin, September 6th, 1875, at 228 (Galveston, “News” Office 1875) [hereinafter

1875 Journal]. As far as I can tell, no delegate either suggested, objected to,

or even discussed the change.

4 Corpus linguistics “employs a massive database that enables date-

specific searches for the possible, common, and most common uses of words or

phrases as they were used in newspapers, books, magazines, and other popular

publications.” Matthews v. Indus. Comm’n of Ariz., 520 P.3d 168, 174 (Ariz.

2022) (Bolick, J.) (citing Thomas R. Lee & Stephen C. Mouritsen, Judging

Ordinary Meaning, 127 Yale L.J. 788, 831–32 (2018)). Within the corpus-

linguistics database are “large bodies of naturally occurring text,” called

“corpora,” which are “drawn from a particular speech community” and “reflect

(both in diversity and relative frequency) the language patterns within that

community.” Thomas R. Lee & Stephen C. Mouritsen, The Corpus and the

Critics, 88 U. Chi. L. Rev. 275, 277, 291 (2021). Of particular use to me are

“concordance line[s],” or “sample sentence[s] from real-world language that

show[] how” the terms “chief magistrate” and “chief executive officer” have

“been used in the past.” Cf. id. at 292.

5 Search of “Chief Magistrate” from 1860 to 1879, Corpus of Hist. Am.

Eng., https:www.english-corpora.org/coha (last visited June 24, 2025)

(populating 94 source references).

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magistrate,” the term “chief executive officer” was not nearly as

commonly used.6 Still, “chief executive officer” referred at times to a

king, a president, a palatine, a mayor, and, of course (and unlike “chief

magistrate”), a leader of a private company. Both terms—chief

executive officer and chief magistrate—were frequently juxtaposed

against text providing that individuals with these titles bore heavy

responsibilities in managing the affairs of state.

From all this, we can begin to define the governor as the head

superintendent of state government, distinguished above those other

constitutional executive officers in Article IV, § 1. To illustrate, we can

refer to the governor as the “chief magistrate” and as the “chief executive

officer,” whereas we would not (at least ordinarily) refer to the leader of

a company as its “chief magistrate.” At least more so than “chief

magistrate,” therefore, “chief executive officer” connotes a latent

authority to compel obedience from an entire organization, which in this

context would include constitutional and statutory executive officers.

The obvious overlap between the two terms is analytically significant,

because it further links the framers’ (and the People’s) thoughts on

executive power between both the 1845 and 1875 constitutional

conventions beyond even what is evident from the debates.

The framers of the 1845 Constitution, of course, sought to depart

from the federal model and tendency among other States “to create a

cabinet for the Governor, over whom he may exercise absolute control.”

6 Compare id., with Search of “Chief Executive Officer” from 1820 to

1899, Corpus of Hist. Am. Eng., https:/www.english-corpora.org/coha (last

visited June 24, 2025) (populating 30 source references).

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1845 Debates, supra, at 119 (emphasis added). The election of executive

officers by persons other than the governor ensured that he could not pack

the executive department with yes-men or sycophants; rather, the People

(or their representatives) packed it with those whom they trusted.

The governor’s inability to choose these individuals, however, was

separate and apart from his ability to supervise and manage the affairs of

the executive department. For example, one delegate at the 1845

convention recognized the governor as “the Executive head of the nation,

chief of that department, as it were the head and sign board of

government.” Id. at 129–30. One imagined that he would be “plain,

honest, sensible, and good” and urged the convention, therefore, to vest

him “with certain powers and privileges” so that he could “perform the

duties pertaining to his office.” Id. at 121–22, 129. Similarly, at the 1875

convention, one delegate observed that the office of the governor

“requir[ed] the highest order of talent, probity, and integrity, and the very

credit of the State.” 1875 Debates, supra, at 153. It was their duty, said

another, “to give the chief executive authority to protect” those in the State

who were “endangered in their rights, liberty, and property.” Id. at 157.

In giving the chief executive officer that authority, one delegate in

1845 noted that to fulfill his duty to “see the laws faithfully executed,” the

governor must have “certain aids, adjuncts[,] and assistants,” for

otherwise, “he as one individual c[ould not] attend to the due execution of

the laws.” Id. at 129. Top of mind in 1875 was, in one delegate’s words,

“filling all the offices of the State with persons of [the People’s] own

selection.” 1875 Debates, supra, at 257 (emphasis added). For example,

like the “independen[ce]” some at the 1845 convention would have afforded

19

the secretary of state, see 1845 Debates, supra, at 118, still others at the

1875 convention thought that the secretary “could act independently and

fearlessly when he knew that he owed his election to the people,” not “the

mere breath of the Governor.” 1875 Debates, supra, at 257.

From the debates, the “independence” apparently conferred to

elected executive officers consisted of their owing their offices to the People

and not to the governor. But that fact did not vitiate those officers’ duty

to report to, and to follow, the governor, who remained responsible for

directing their affairs. For example, while discussing the gubernatorial

salary in 1875, one delegate successfully helped defeat a proposal to

“reduc[e] the salary of the chief executive below that of any other State

officer.” Id. at 153. He observed that doing so would run counter to the

prevailing sentiment that the governor “was made responsible” for the

“good conduct” of all other executive officers. See id. Another delegate

later parroted that the governor “had been made responsible for the good

conduct and honest management of all other State officers,” and still

another delegate was “answered in the affirmative” after asking whether

the Governor was “responsible for all of the acts of the subordinate officers

of the Executive Department.” Id. at 163.

To be sure, the delegates knew that officers who were elected would

be endowed with a confidence to resist the governor’s demands. Notably,

some delegates at the 1845 convention contemplated the possibility of a

fractured executive department, one in which an elected official might “be

brought into collision with the Governor.” See 1845 Debates, supra, at

119. Unlike appointed officials, who at all times “ought to be in harmony

with the Executive,” any single elected official might be a “spy,” or worse,

20

“an opposition power . . . inimical to the Governor,” one “disposed to break

him down in order to take his place.” Id. at 120, 122. And yet, the

ultimate status of these officers “most effectually ensure[d] the due

execution of the duties assigned [to the governor]”—namely, his duty “to

see the laws faithfully executed.” Id. at 129. The governor was trusted

to lead the department through its inherent potential for disharmony,

division, and discord.

Displaying that leadership at the 1875 convention, then-Governor

Coke delivered a message to the delegates, stating:

I have the honor, in behalf of the Executive Department of

the State Government, to tender the earnest co-operation of

all the officers of that department, as far as their aid may

be desired in forwarding the labors and advancing the

purposes of the Convention. . . . Any information to be

found in any of the offices of the Executive Department, not

embraced in th[e] reports [that were already made by

executive-department officials], will be cheerfully and

promptly furnished, upon request from yourself or the

honorable Convention.

1875 Journal, supra, at 12 (emphasis added). Of course, it is easy to read

too much into Governor Coke’s message—he and the rest of the executive

department may well have agreed, before he sent his missive, to cooperate

with the convention in such ways. Still, the delegates’ response was

telling—“thank[ing] the Governor for his polite and patriotic

communications” and promising to “avail themselves of such information

he has offered, as occasion may require.” Id. at 13 (emphasis added).

The debates that day underscored the delegates’ thinking. Though they

had no real “use for the message,” they understood that “[i]f they required

any further information they would ask it respectfully and the Governor

would give it cheerfully.” 1875 Debates, supra, at 2 (emphasis added).

21

The governor himself was thus perceived as responsible for seeing that

the executive department offered the convention all it needed, despite his

inability to personally choose certain persons who would constitute his

“aids, adjuncts[,] and assistants.” Cf. 1845 Debates, supra, at 129.

Today, Article IV, § 1 embodies the nuanced, tenuous, and

potentially complicated arrangement that the framers gave us. And yet,

from this Court’s early days, we have appreciated the power of the chief

magistrate and chief executive officer to command his executive

department, treating his distinct authority with special solicitude, and

recognizing it as superior to other officers of the executive branch,

including with respect to the particular work that they were chosen to do.

The governor, we said, “is the head of the executive department of

the state, and it is made his duty, by the constitution, to ‘take care that

the laws be faithfully executed.’ ” Hous. Tap & Brazoria Ry. Co. v. C. H.

Randolph, 24 Tex. 317, 343 (1859). By his status within the structure of

the Constitution, “[i]t is evidently contemplated[] that he shall give

direction to the management of affairs, in all the branches of the executive

department.” Id. (emphasis added). “Otherwise,” of course, “he has very

little to do.” Id.

The governor’s direction transcends the boundaries of his

subordinates’ otherwise-siloed authority. For example, we have

suggested that where the attorney general lacks constitutional or

statutory authority to institute a suit, the governor, “as [the State’s] chief

executive officer,” may “have the power to require the attorney general to

institute, or to cause to be instituted, a suit of [such] character, when in

[the governor’s] judgment the welfare of the state required it, even though

22

the legislature had not so directed.” Day Land & Cattle Co. v. State, 4

S.W. 865, 867 (Tex. 1887). And we have legitimized the governor’s

conduct by virtue of his status as “chief executive officer.” E.g., Arnold

v. State, 9 S.W. 120, 120 (Tex. 1888) (holding that an act “creat[ing] new

offices, to be held by the heads of the executive department,” was

constitutional given, among other things, the governor’s role as “the chief

executive officer”); see also Jones v. Alexander, 59 S.W.2d 1080, 1082 (Tex.

[Comm’n Op.] 1933) (noting that in Arnold, the “Court held that [the]

appointments of the Governor were not prohibited by the Constitution,

because he was the chief executive officer of the state”).

Of course, when compared to the federal government, in which

the president enjoys “the entire unity of [his] executive department” via

his absolute “authoritative control” over who fills its divisions, the

governor of Texas enjoys comparatively less authority. Hous. Tap., 24

Tex. at 343. “The absence of that absolute power of the chief executive

in this state[] must occasionally produce a want of harmony in the

executive administration, by the inferior officers of that department,

declining to comply with the wishes, or to follow the judgment[,] of the

governor.” Id. It is through his role as chief executive officer that he

commands the executive department, and in circumstances—hopefully

rare—in which he concludes that it is essential to have a unity of policy,

it is that supervisory and managerial authority that he must invoke.

“[T]he power to control the decisions of subordinate levels of government

is not extraordinary at all.” Abbott v. Harris County, 672 S.W.3d 1, 18

(Tex. 2023). As the “Chief Executive Officer of the State,” who is

“obligate[d] [] to ‘cause the laws to be faithfully executed,’ ” it is “little

23

surprise” and “nothing extraordinary” that the governor may “control

the executive branch of government.” Id. at 18–19.

* * *

To sum up, the text, history, and tradition of the chief-executive-

officer clause suggests that the governor is vested with meaningful

authority to manage, supervise, and direct the affairs of all those who

reside in the executive department. Both “chief magistrate” and “chief

executive officer” reflect a meaning that could not escape ordinary

speakers of English—that, as the saying goes, the buck stops with him.

True, this State may not have a “unitary executive” in the sense that the

members of the executive department are all removable at will by the

governor. Cf. Trump v. Wilcox, ___ S. Ct. ___, 2025 WL 1464804, at *1

(U.S. May 22, 2025). In its place, rather, is a chief executive officer who

must manage elected officials whom he might not have appointed but

with whom he must work to cause the laws to be faithfully executed.

This is part of the genius of the Constitution—vesting certain

executive officers with a measure of independence that was more likely

to deliver on the policies of the electorate who voted for them. President

Lincoln, both a “chief magistrate” and “chief executive officer,” famously

chose for himself this very benefit—a cabinet made up of ambitious and

fractious leaders, potentially divisive, but when channeled, of enormous

benefit to the country, as told in Doris Kearns Goodwin’s famous Team

of Rivals: The Political Genius of Abraham Lincoln (2005). The People

of our State chose to impose an analogous model of leadership on future

Texas governors.

Division within the executive department is to be expected, but

nothing can occur within or without it that does not at least potentially

24

implicate the governor’s authority and discretion. The framers believed

that the governor would be wise enough to recognize that it was often not

in his or the State’s best interest to override other executive officers, but

they did not deprive him of his ultimate authority to act in the best

interest of the State when necessary or when division arose within his

branch. And as I discuss below, it is his special distinction as chief

executive officer, and the authority incident to it, that likely bars the

courts from issuing writs of mandamus against him.

B

The Chief Executive Officer and the writ of mandamus. I

first briefly recount the history of the writ of mandamus. I then follow

the legislature’s history of conferring mandamus authority on Texas

courts and describe this Court’s early discomfort with issuing such writs

against executive officers. All this, plus the approach of the federal courts

and of early courts in sister states, combined with my discussion above

about the role of the governor, make it likely that no court may

constitutionally exercise mandamus jurisdiction over him.

To begin, as the Court today notes, the writ of mandamus “long

pre-existed the Republic.” Ante at 7. The writ is, at its most basic, a

tool—one “whereby various public duties and powers [are] commanded

and enforced.” Thomas Tapping, The Law and Practice of the High

Prerogative Writ of Mandamus 56 (London, Wm. Benning & Co. 1848).

Courts historically dispensed the writ “in all cases where there was a

legal right to justice, but for which right the law had not provided any

specific legal remedy.” Id. at 57. Or put differently, a party successfully

prosecuted the writ “where [he] ha[d] a legal power consequent upon the

25

violation of some legal right or duty, for which the law ha[d] not

established any specific or adequate legal remedy, and where, in justice

and good government, there ought to be one.” Id. at 58–59.

Mandamus today is primarily a tool used by superior courts to

exercise control within the judicial branch itself, but modern practice also

includes this Court’s issuance of a writ of mandamus against an executive

official to compel him “to perform ministerial acts” or “to correct a clear

abuse of discretion.” In re Williams, 470 S.W.3d 819, 821 (Tex. 2015)

(citation omitted). If courts are not cautious, that standard can be

slippery. “How easily the doctrine may be pushed and widened to any

extent[.]” Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 518 (1840) (opinion

of Catron, J.) (stating that entertaining the writ in that case created a

“dangerous” conflict between the executive and judicial departments).

Understanding for what purpose the writ was traditionally

deployed is just as important as understanding to whom the writ was

appropriately directed. The writ of mandamus, we often have said, is

“extraordinary.” E.g., Ferguson v. Huggins, 52 S.W.2d 904, 907 (Tex.

1932). And given its extraordinary nature, the writ was only properly

used to supervise inferior officers. See 2 Isaac ’Espinasse, A Digest of the

Law of Actions and Trials at Nisi Prius 302 (Gould, Banks & Gould 1811)

(1793) (“The Writ of Mandamus is a prerogative writ, issuing out of the

Court of King’s Bench, by virtue of that general superintendency which

that court possesses over all inferior jurisdictions and persons.”

(emphasis added)). The distinction between inferior officers’ vulnerability

to writs of mandamus and their superior officer’s immunity from them

“is a fundamental principle of law,” for the writ should “never be granted

26

in cases where, if issued, it would prove unavailing.” Edward J. Myers,

Mandamus Against a Governor, 3 Mich. L. Rev. 634, 648 (1905).

Consistent with this inferior–superior dichotomy, the People had

vested Texas district courts with jurisdiction to issue writs of mandamus

beginning early in the State’s history. For example, the 1845

Constitution provided that district courts had “power to issue all writs

necessary to enforce their own jurisdiction, and give them a general

superintendence and control over inferior jurisdictions.” Tex. Const. 1845

art. IV, § 10; see also Tex. Const. 1861 art. IV, § 10 (same); Tex. Const.

1866 art. IV, § 6 (similar); Tex. Const. 1869 art. V, § 7 (also similar).

Relatedly, in 1846, a statute provided that the district courts had

authority to grant petitions for writs of mandamus and that

all writs of mandamus, sued out against the heads of any

of the departments or bureaux of government, shall be

returnable before the district court of the county in which

the seat of government may be.

Act approved May 11, 1846, 1st Leg., R.S., 1846 Tex. Gen. Laws 200, 201,

reprinted in 2 Gammel, supra, at 1507. Discussing this statute and the

1845 Constitution’s Article IV, § 10, we found it “evident” that a district

court could issue the “extraordinary writ” of mandamus. Jones v. T.H.

McMahan & Gilbert, 30 Tex. 719, 728, 730 (1868) (cautioning that the writ

“should not be used when an ordinary writ or suit will be as effectual”).

Yet in Houston Tap, we questioned the authority of our district

courts to issue writs of mandamus against executive officers (i.e., the

“heads of any of the departments or bureaux of government”) at all. See

24 Tex. at 342–43. Justice Roberts—eventually Chief Justice Roberts and

then Governor Roberts—wrote for the Court, noting that the 1846 statute

“obviate[d] the difficulty, which had grown out of the practice of seeking

27

the writ of mandamus against the commissioner of the general land

office . . . in counties all over the state.” Id. Consolidating and

streamlining mandamus petitions in one geographic location was

admirable, but still, the Court found that the statute “t[ook] for granted

the existence of the power” to “grant the writ” against “executive officers”

in the first place. See id. at 343.

Houston Tap underscores the discomfort among the early justices

of this Court in issuing “the extraordinary remedy of mandamus” and

pitting the judiciary against the executive branch. See id. at 329. The

case involved a railroad company’s attempt to obtain a writ of mandamus

against the state treasurer from a Travis County district court. Id. We

ultimately affirmed the district court’s dismissal of the suit, holding that

the company had failed to sufficiently plead its right to mandamus and

that the company was seeking to “force the treasurer of the state to

perform” an act that was “not only official, but [] require[d] the exercise

of his judgment, as an officer.” Id. at 333, 338. Throughout, however, the

Court emphasized that the Constitution’s separation-of-powers provision

“contemplate[d] that the persons employed in each department, will be

wise enough, and honest enough, to discharge the duties intrusted to

them, without the aid or interference of the others.” Id. at 336.

The writ of mandamus, the Court said, ran headlong into these

constitutional principles, flouting the People’s “right to expect[] that the

respective duties allotted to each department shall be performed by those

they have chosen to perform them.” Id. at 336. Justice Roberts engaged

in a thought experiment, sketching out a seeming dystopia in which even

the governor could be subject to mandamus in a district court. He wrote

28

that the People “would be not a little surprised to find” that “the governor,

and heads of departments, elected by the whole people of the state, were

summoned before the district court of Travis [C]ounty, and required there

to contest the propriety of any of their official acts, done within the scope

of their authority.” Id. at 336–37. Then, “after a tedious struggle, the

facts in issue being tried and determined by a jury of twelve men,” the

People would be equally surprised to find that these officials would be

“compelled, under the penalty of attachment and imprisonment for

contempt, to do an act, which they had refused to do, acting under their

oath of office, and under a sense of responsibility to their constituents.”

Id. at 337. The Court then imagined the “consequence[s]” of issuing a

writ of mandamus not just against an executive official but rather against

the governor himself:

[Say, for example, that] [t]he governor is required to

[perform] a mere ministerial act by writing his name; the

right of the plaintiff has been made clear in the district

court; and the reasons given by the governor for his refusal

[to perform], are not deemed sufficient by the district judge.

The governor, under a sense of duty, and to resist

aggression upon his official rights, is obstinate, and will not

obey the mandate of the court,—will not [perform]

officially, as “governor of the state of Texas,” upon

compulsion; the sheriff of Travis [C]ounty must enter the

governor’s mansion with his posse, and take possession of

the governor, and put him in jail, and keep him there, until

he will [perform his ministerial act].

Id. Worse, the Court said, would be the consequences of when such a

governor “yield[s] [his] judgment” and “obey[s] the mandate”: “Who ‘takes

care, that the laws are faithfully executed;’ the governor or the district

judge? Surely not the governor, if he must obey the mandate of the court,

in the performance of an official duty.” Id. (emphasis added).

29

Fifteen years later, in Bledsoe v. International Railroad Co., the

Court walked back some of Houston Tap’s dicta, noting that it did not

mean to “entertain[] the slightest intention of annulling” the courts’

ability to issue writs of mandamus against public officers “to perform a

purely ministerial duty, positively required by law, and involving neither

official judgment nor discretion.” 40 Tex. at 552. Still, the Court

“admitted” that this rule was “difficult” to apply “to particular cases.” Id.

at 557. The “independence of power in the different departments was

intended to act as a check and restraint against usurped authority,” and

so remedies by mandamus should be rarely, if ever, available. Id. at 566.

Reiterating Houston Tap’s concerns, however, the Court then

noted that “[t]he word ‘ministerial’ ha[d] reference generally to an act

done under authority of a superior; and in this sense it could never apply

to the chief executive with respect to anything required by the legislative

authority.” Id. at 557 (emphasis added). The Court then concluded by

underscoring that the 1846 statute vesting district courts with

jurisdiction to issue writs of mandamus against the “heads of

departments” of the executive branch neither “enlarged [nor] extended

the remedy by mandamus beyond the enforcement of a merely ministerial

act by any of such officers.” Id. at 568–69.

It was the year following Bledsoe that the delegates met in Austin

for the constitutional convention. The Constitution as adopted in 1876

provided that the district courts had “power to issue writs of habeas

corpus in felony cases, mandamus, injunction, certiorari, and all writs

necessary to enforce their jurisdiction.” Tex. Const. art. V, § 8 (amended

1891, 1973, 1985). And it specified that this Court had exclusively

30

appellate jurisdiction and could only issue writs of mandamus for the

purpose of enforcing that appellate jurisdiction. Id. § 3 (amended 1891,

1930, 1980, 2001); accord Wells v. Littlefield, 62 Tex. 28, 30 (1884). In

1881, however, the legislature provided as follows:

No court of this State shall have power, authority or

jurisdiction to issue the writ of mandamus, or injunction, or

any other mandatory or compulsory writ or process against

any of the officers of the executive departments of the

government of this State, to order or compel the performance

of any act or duty, which, by the laws of this State, they or

either of them are authorized to perform, whether such act

or duty be judicial, ministerial or discretionary.

Act approved Feb. 15, 1881, 17th R.S., ch. 12, § 4, 1881 Tex. Gen. Laws 7,

7–8, reprinted in 9 Gammel, supra, at 99–100 (emphasis added). By this

statute, the legislature apparently took the Court’s evident discomfort

about exercising mandamus jurisdiction over executive officers, as

expressed in Houston Tap and Bledsoe, to a unique extreme—vitiating

the authority of any court anywhere to issue writs of mandamus against

“officers of the executive departments of the government.” See id.

That solution proved unworkable. In 1891, the legislature

proposed a series of amendments to the Constitution to provide, among

other things, that “[t]he Legislature may confer original jurisdiction on

the Supreme Court to issue writs of quo warranto and mandamus in such

cases as may be specified, except as against the Governor of the State.”

Act approved Apr. 28, 1891, 22d Leg., R.S., S.J.R. 16, § 3, 1891 Tex. Gen.

Laws 197, 197–98, reprinted in 10 Gammel, supra, at 199–200. The

People adopted the amendments narrowly, 37,445 to 35,695. “In

pursuance of the power granted by that [new constitutional] provision,”

McKenzie v. Comm’r of Gen. Land Off., 32 S.W. 1038, 1039 (Tex. 1995),

31

the legislature provided the following:

The supreme court, or any justice thereof, shall have power

to issue writs of habeas corpus as may be prescribed by law;

and the said court, or the justices thereof, may issue writs of

mandamus, procedendo, certiorari and all writs necessary

to enforce the jurisdiction of said court; and in term time or

vacation may issue writs of quo warranto or mandamus

against any district judge or officer of the state government,

except the governor of the state.

Act approved Apr. 13, 1892, 22d Leg., 1st C.S., ch. 14, § 1, art. 1012, 1892

Tex. Gen. Laws 19, 21, reprinted in 10 Gammel, supra, at 386 (emphasis

added). The legislature accordingly vested this Court with jurisdiction to

issue writs of mandamus against executive officers except the governor.

Meanwhile, the 1881 statute prohibiting any court from exercising “power,

authority or jurisdiction to issue the writ of mandamus . . . against any

of the officers of the executive departments . . . to order or compel the

performance of any act or duty . . . whether such act or duty be judicial,

ministerial or discretionary” remained on the books.

This Court confronted the tension between the 1881 and 1892

statutes in McKenzie, 32 S.W. at 1039. There, the petitioner filed an

original proceeding requesting that the Court issue a writ of mandamus

against the commissioner of the general land office. Id. In finding that

it had “power to grant the writ of mandamus against the head of a[n]

[executive] department,” the Court observed that the later-enacted

statute “restricted the operation of the former law in so far as it applied

to the supreme court, and repealed it to that extent.” Id. The 1892 statute

vesting this Court with mandamus jurisdiction “clearly manifest[ed] that

it was the purpose of the legislature to pursue the policy for which a way

had been laid out by” the 1891 amendments to the Texas Constitution,

32

thereby “continu[ing] the power previously granted to issue the writ of

mandamus to the heads of the departments of the state government.” Id.

at 1040 (emphasis added). Thus, we construed the 1881 statute “to read:

‘No court of this state, except the supreme court, shall have power,’ etc.,”

which “preserve[d] both [statutes].” Id.

We have not taken this responsibility lightly. In Betts v. Johnson,

for example, we explained that the legislature “did not intend to confer

original jurisdiction upon this court except in cases where there existed

some special reason for its exercise.” 73 S.W. 4, 5 (Tex. 1903). “A

mandamus proceeding against the head of a department, as a rule,

involves questions which are of general public interest and call for a speedy

determination.” Id. And it was “obvious” that such cases “are of far more

importance than those ordinarily arising in mandamus suits against

other officers, whether of the state, or of a district, or [of] a county.” Id.

Then-Justice Hecht explained that following the 1925 statutory

recodification, the 1881 statute disappeared, and in its place was “a

provision giving the Supreme Court exclusive mandamus jurisdiction

over ‘officers of the executive departments.’ ” In re TXU Elec. Co., 67

S.W.3d 130, 157 (Tex. 2001) (Hecht, J., dissenting). “In effect, the

Legislature made its 1892 enactment an exception to the 1881 statute,

consistent with our construction of the two” in McKenzie; “[t]he provision

is now [§] 22.002(c) of the Government Code.” Id. Similarly, the 1892

statute vesting this Court with mandamus jurisdiction eventually

became “[§] 22.002(a) of the Government Code.” Id. at 152, 157.

The writ of mandamus, in sum, is an extraordinary remedy that

should be rarely issued against executive-branch officers. Today’s

33

decision, rendered entirely based on the Court’s construction of the PIA

and the Government Code § 22.002, is consistent with the history I have

just described. Indeed, as late as 1874, “a petition for writ of mandamus

ha[d] never been sustained in this state against the governor, secretary

of state, comptroller, [or] treasurer . . . though many ha[d] been filed and

prosecuted.” Bledsoe, 40 Tex. at 567; see also Kuechler v. Wright, 40 Tex.

600, 648, 667 (1874) (Roberts, C.J., concurring in the denial of the second

motion for rehearing) (making a similar observation and responding to

Justice Moore’s concurring opinion).

Given its English origins, the writ was applicable only against

“inferior” officers, and notwithstanding district courts’ broad statutory

authority to subject constitutional executive officers to mandamus

jurisdiction, this Court exhibited extreme discomfort with that practice in

its early years. Hous. Tap, 24 Tex. at 337. We later noted, albeit in dicta,

that as the titular “superior” executive officer, the governor had no

“ministerial” duties to perform and so was never a proper target of

mandamus. See Bledsoe, 40 Tex. at 557. After the legislature granted this

Court alone jurisdiction to issue writs of mandamus against executive

officers—but not the governor—we observed that its actions “continue[d]

the power previously granted” to the courts. See McKenzie, 32 S.W. at

1040. Keeping with this history and tradition, therefore, it is almost

certain that no court can issue a writ of mandamus against the governor.

This analysis corresponds to the approach of federal and other state

courts. While it formally remains an open question within the federal

system whether the courts can issue a writ of mandamus against the

president, “[i]t is extremely doubtful” that courts can do so. Harris v.

34

Bessent, No. 25-5057, 2025 WL 1021435, at *6 (D.C. Cir. Apr. 7, 2025)

(Rao, J., dissenting) (collecting cases in which the D.C. Circuit “declined

to issue the writ ‘in order to show the utmost respect to the office of the

Presidency and to avoid . . . any clash between the judicial and executive

branches of Government’ ” (first quoting Nat’l Treasury Emps. Union v.

Nixon, 492 F.2d 587, 616 (D.C. Cir. 1974); and then citing Nat’l Wildlife

Fed’n v. United States, 626 F.2d 917, 928 (D.C. Cir. 1980))). In Mississippi

v. Johnson, the Supreme Court refused to “express[] any opinion” on

“whether, in any case, the President of the United States may be required,

by the process of this court, to perform a purely ministerial act under a

positive law, or may be held amenable, in any case, otherwise than by

impeachment for crime.” 71 U.S. 475, 498 (1866). Still, it noted that “[a]n

attempt on the part of the judicial department of the government to

enforce the performance” of the president’s duties was “an absurd and

excessive extravagance.” Id. at 499. “[I]mplicit in the separation of powers

established by the Constitution” is that “the President and the Congress

(as opposed to their agents)” cannot “be ordered to perform particular

executive or legislative acts at the behest of the Judiciary.” Franklin v.

Massachusetts, 505 U.S. 788, 827 (1992) (Scalia, J., concurring).

Consequently, it is likely that no court can issue the writ against the

president, but such a remedial gap is nothing new. E.g., Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 179–80 (1803).

As for the state courts, after surveying “all the adjudicated cases

upon th[e] question [of whether the courts could mandamus the governor],

dating from the year 1839 up to and including cases decided as late as June

30, 1903,” one scholar identified “two irreconcilable lines of decision”:

35

1. the governor “is not answerable to the writ to compel

the performance of his duty, be it either discretionary

or ministerial”; or

2. the governor “is liable to the writ to compel the

performance of duties purely ministerial in nature.”

Myers, supra, at 634, 647; see also R. E. Heinselman, Annotation,

Mandamus to Governor, 105 A.L.R. 1124 (1936) (similarly noting “an

irreconcilable conflict of authority”). It was the former line of decision, and

not the latter, that was “based upon the more logical and cogent reasoning.”

Myers, supra, at 647.

Compelling any executive officer to take an action by mandamus

risks serious separation-of-powers concerns, see, e.g., In re Stetson

Renewables Holdings, LLC, 658 S.W.3d 292, 296 (Tex. 2022) (refusing to

compel an executive branch official to act because it would unnecessarily

pit the judicial department against the prerogatives of the coordinate

branches), and doing so against the governor would take that concern to

the highest level, cf. Decatur, 39 U.S. at 519, 521 (opinion of Catron, J.)

(noting that even when weighing whether mandamus should issue

against a lower-level executive official, “the conflict between the executive

and judiciary departments could not well be more direct, nor more

dangerous” and that “entertaining such a cause [was] calculated to alarm

all men who seriously th[ought] of the consequences”).

Of course, the governor “should follow the law because it is the law”

and not because some court somewhere told him to do so. Stetson,

658 S.W.3d at 297. We presume that he does so at all times; at least as

much as any other government official in a coordinate branch, the governor

must benefit from the presumptions of regularity, good faith, and

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lawfulness. See, e.g., Webster v. Comm’n for Law. Discipline, 704 S.W.3d

478, 488, 496, 501, 505 (Tex. 2024). It is one thing for a court to rule against

the governor if he is a party to ordinary litigation; it is quite another to

purport to instruct him as to what actions of his are mandatory rather than

discretionary, and then purport to order him to personally undertake an

action that he regards as improper. Cf., e.g., id. at 487 (“[C]onstitutional

problems arise when one branch pushes beyond the boundaries to interfere

with another branch’s exercise of its constitutional powers.”).

For a myriad of reasons, therefore, it is hard to imagine that the

Constitution’s text or structure would ever abide subjecting a governor

of this State to a court’s mandamus process—and certainly not that of a

trial court.

III

Thus far, I have concluded—again, subject to reconsideration if I

am shown to be wrong—that the chief-executive-officer clause vests the

governor with at least some meaningful authority to direct and manage the

executive branch of government. Beyond the consequence most directly

relevant here—the governor’s likely lack of amenability to mandamus—

two further potential consequences merit additional discussion.

First, because the governor is charged with causing the laws of this

State to be faithfully executed, Tex. Const. art. IV, § 10, any precedents of

this Court that might seem at odds with that role—such as by suggesting

that he cannot direct agency action or that he is not implicated when public

officials exercise executive authority—deserve further explanation.

Such cases can and should be harmonized with the principles that I have

described. Second, given the heavy responsibilities in superintending the

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executive branch, the governor must have tools to ensure that other officers

faithfully execute the laws. I discuss both points in turn.

A

To reiterate, in addition to and as part of his role as chief executive

officer, the governor is duty-bound to “cause the laws to be faithfully

executed.” Id. The People have given the governor preeminence over the

other constitutional executive officers, and indeed the entirety of the

executive branch of government. This understanding of gubernatorial

power may, at least at first glance, be in some tension with two of this

Court’s recent precedents. See State v. Volkswagen Aktiengesellschaft, 692

S.W.3d 467 (Tex. 2022); In re Abbott, 645 S.W.3d 276 (Tex. 2022). Those

decisions, however, were based on statutory construction rather than

constitutional principles, and they say nothing about the governor’s role

as chief executive officer. That role was invoked in neither case, and

perhaps purposefully so; as I see it, the governor may invoke the

Constitution’s chief-executive-officer authority, but he may also allow the

process to unfold in the ordinary way. In other words, a future case that

does implicate that authority will not necessarily be governed by

precedents that turn on something else. Accordingly, I should not be

mistaken as criticizing these decisions as wrongly decided.

Take, for example, In re Abbott, which involved the governor’s

directing the Department of Family and Protective Services to “follow the

law as explained” by an attorney general opinion. 645 S.W.3d at 279. After

the plaintiffs challenged DFPS’s stated intention to follow the governor’s

directive, the court of appeals reinstated a temporary injunction

restraining DFPS’s ability to take any action “based on th[at] directive.”

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Id. Among other things, we granted mandamus relief “with respect to the

order’s injunction against the Governor, as there [was] no allegation that

he [was] taking, or ha[d] authority to take, the enforcement actions the

order enjoins.” Id. at 280.

We first noted that “[u]nlike the federal constitution, the Texas

Constitution does not vest the executive power solely in one chief

executive.” Id. “[T]he executive power,” we said, “is spread across several

distinct elected offices, and the Legislature has over the years created a

wide variety of state agencies—including DFPS—whose animating

statutes do not subject their decisions to the Governor’s direct control.” Id.

(emphasis added). Crucially, “[t]he State d[id] not contend in this Court

that the Governor’s letter formally changed the legal obligations of DFPS.”

Id. at 280–81. What is more, “the Governor’s letter cite[d] no legal

authority that would empower [him] to bind state agencies with the

instruction contained in the letter’s final sentence, and we [were] directed

to none.” Id. at 281. Thus, we concluded that “neither the Governor nor

the Attorney General ha[d] statutory authority to directly control DFPS’s

investigatory decisions.” Id. at 281 (emphasis added). “DFPS alone b[ore]

legal responsibility for its decisions.” Id.

Similarly, in Volkswagen, we broadly observed that “Texas does not

have a unitary executive.” 692 S.W.3d at 473. At issue was whether we

could fairly “impute the status of party to the Governor himself,” and

because the actions at issue “were not brought by the Governor, at his

direction, or on his authority,” we concluded that he was not a true party

to the suit. Id. at 474. Imputing party status to any potential litigant—

public or private—carries a host of jurisprudential concerns that have

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nothing to do with a coordinate branch’s authority. That party-status focus

in Volkswagen provides the proper lens for viewing the Court’s statements

that “the Governor is not automatically implicated in every state action or

even every executive-branch action” and that “nothing in [an agency’s]

enabling statute g[ave the governor] the authority to direct [its] actions.”

Id. (emphasis added).

Significantly, at no point in Abbott or Volkswagen was the Court

referred to the governor’s authority as chief executive officer to direct and

manage the affairs of the executive branch writ large. Nor did the governor

invoke his status as chief executive officer to direct any action in either

case. In this sense, it is correct that he had not assumed direct

responsibility for the government’s work. Yet as I have explained above,

the framers, and the People, always understood that the governor is

potentially implicated in and responsible for every action of an executive-

branch officer—elected or otherwise. Again, whether he is implicated to

the extent that he could be fairly considered a party to the litigation is a

separate question. But it would go too far to suggest—and the Court did

not so suggest—that he could not be implicated by executive action. Such

an assertion would undermine his constitutional role. And while nothing

in a statute might provide that the governor can direct an agency’s action,

the governor’s preexisting authority over the executive branch fills that

apparent void. I find it hard to imagine that a statute could create an

executive agency over which the governor’s authority as chief executive

officer could be displaced without violating Article IV, § 1.

It is hard to overstate the importance of getting all this right. As

the head of the executive branch, the governor has been charged by the

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People to cause the laws to be faithfully executed. He cannot do that task

alone; instead, he must supervise the work of other elected and very many

unelected officials who wield executive authority. When the People elect

the governor, in other words, they do so with the expectation that he may

prioritize and implement his policies that, at a minimum, supersede

whatever the bureaucracy may generate. Recognizing this constitutional

minimum avoids a host of serious constitutional questions, including the

propriety of unelected government officials exercising executive authority.

See, e.g., Webster, 704 S.W.3d at 494 (noting that the first assistant

attorney general “operate[s] next to and in tandem with the constitutional

source of power” and that when he “acts under the direction of the attorney

general, he does so as if the attorney general himself had acted”). At times

the governor may give suggestions; at times he may issue directives. And

when he does the latter, at least if he does so by exercising his chief-

executive-officer responsibility, the law cannot treat his commands as

empty words. Rather, they are imbued with constitutional authority.

Thus, Abbott and Volkswagen may be harmonized with my

understanding of executive authority. Again, in neither case did the

governor purport to direct agency or executive action under his authority

as chief executive officer, duty-bound to cause the laws to be faithfully

executed. That choice may have been purposeful. And until it is

otherwise—i.e., until he invokes his executive authority to superintend the

actions of the executive branch and doing so leads to litigation—the

internal machinations of that branch offer no opportunity for this Court

or any other to opine on the boundaries of gubernatorial authority.

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B

As chief executive officer and as the official charged with seeing that

the laws are faithfully executed, the governor must have some tools to

discharge these constitutional roles and duties. The framers feared that

the office of the governor “w[ould] increase in strength and power as it

progress[ed],” e.g., 1845 Debates, supra, at 116, but likely could not have

anticipated that so much executive authority would be placed in people

largely invisible to the public eye. Of course, given the structure of the

executive branch of government, the governor sits atop constitutional

executive officers who owe their offices to their own (albeit often

overlapping) constituents. But he remains their constitutional superior,

and we have acknowledged that his authority transcends that of his

inferiors. Cf. Day Land & Cattle Co., 4 S.W. at 867.

Division and dissention, this Court has said, are to be expected. In

Houston Tap, for example, we acknowledged “an inherent difficulty in the

organization of th[e] [executive] department.” 24 Tex. at 343. When a

“want of harmony” among executive officers results in an injury to a private

plaintiff, mandamus may not, and often will not, lie; such an injury “cannot

justify another department, to wit, the judiciary, in overstepping the

boundary of its prescribed authority, for the purpose of furnishing a

remedy.” Id.

But what about the injury to the governor—or, given the source of

his authority, to the State as an institution? With respect to an executive

officer who fails to perform an official action, the governor surely has a host

of political options to impose discipline. With respect to lesser officials, the

governor may be able to terminate their employment. There are

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undoubtedly many other tools at his disposal.

Beyond those, the courts can sometimes provide a mechanism for

both public and private rights to be enforced. The Constitution, for

example, provides that “the officers of the Executive Department” as well

as “all officers and managers of State institutions” must provide, under

oath, a semi-annual report to the governor. Tex. Const. art. IV, § 24.

Under that provision, the governor can also, “at any time, require

information in writing from any and all of [those] officers or managers,

upon any subject relating to the duties, condition, management[,] and

expenses of their respective offices and institutions.” Id. Should any officer

“wilfully make a false report or give false information,” he can be “removed

from office” and “punish[ed]” for “perjury” following conviction. Id. The

Constitution, in other words, expressly contemplates judicial enforcement

as one tool available to the governor to ensure compliance within his

branch with his directives.

Likewise, this Court has never held that the governor cannot seek a

writ of mandamus to compel an inferior officer to perform a purely

ministerial duty, for example. Contra Braden, supra, at 319 (asserting that

the governor “apparently lacks tools” to cause the laws to be faithfully

executed and that “no governor appears to have asserted any authority

that might be derived from” his chief-executive role or duty to cause the

laws to be faithfully executed). Though we have acknowledged that “the

conflicts arising out of” the executive department’s “declining to comply

with the wishes, or to follow the judgment of the governor”—conflicts which

in that case only injured a private party—“cannot be adjudicated or settled

by the judiciary,” Hous. Tap, 24 Tex. at 343, we have also suggested that

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the governor could, if necessary, seek redress in this Court against his

inferiors via mandamus. In In re Texas House of Representatives, for

example, we noted that should an executive agency “ignore” the governor’s

exercise of his constitutional authority, “it may be appropriate for the

courts to order the [agency] to comply.” 702 S.W.3d at 347. The particular

power at issue there—a reprieve—is only one example. The governor’s

specific responsibility in Article V, § 10 must be construed as the People’s

intention to vest in him “whatever power is reasonably necessary to fulfill

[that] function or perform [that] duty.” Cf. PUC v. GTE–Sw., Inc., 901

S.W.2d 401, 407 (Tex. 1995); see also Jayne, 138 S.W. at 586.

In a proper case, after all, mandamus can lie against any other

executive officer at the behest of an injured party. If the governor is

constitutionally empowered to direct an executive officer about an

executive-branch policy matter, that task would no longer be

discretionary; if the officer refused to comply, the governor may have a

variety of tools at his disposal, including presumably having at least as

much right to seek mandamus as a private citizen. Cf., e.g., Tex. Const.

art. IV § 24. The governor has “legal power” as chief executive officer,

“consequent upon the violation of [the] legal . . . duty” to cause the laws to

be faithfully executed, to remedy his injury by mandamus, at least where

the law “has not established any specific or adequate legal remedy.” Cf.

Tapping, supra, at 58. Whether any particular order was proper under

the chief-executive-officer (or some other) clause presents a distinct

question—but the governor is surely empowered in various situations to

issue such binding orders, and when he does, it is hard to see why

mandamus could not lie.

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Such an exercise of executive authority would not be novel, at least

in other states. See, e.g., State ex rel. Withycombe v. Stannard, 165 P. 566,

566 (Or. 1917) (“Where a public official charged with a duty to the whole

state . . . refuses to execute the law and to perform his duty in that regard,

we think the Governor is acting only in obedience to this requirement of

the Constitution in appealing to the court to compel [via mandamus] that

official to perform such legal duty.”); Chiles v. Milligan, 659 So.2d 1055,

1056 (Fla. 1995) (involving the conditional grant of a governor’s petition

for writ of mandamus against the secretary of state and statewide elected

comptroller).

As I noted at the outset, however, this case—and this concurring

opinion—need not explore all the ways in which the governor’s authority

over the executive branch is enforceable, whether through judicial means

or otherwise. It is enough for today to recognize that the authority exists,

and perhaps to a far greater degree than the conventional wisdom has

assumed.

* * *

The Court today broke no new jurisprudential ground. As it

observes, consistent with our prior decision in A & T Consultants, Inc. v.

Sharp, 904 S.W.2d 668, 669 (Tex. 1995), the legislature has not sought to

vest the district courts with the authority to issue writs of mandamus

against any constitutional executive officer, let alone the governor. Even

had the legislature done so, I strongly suspect no court could issue a writ

of mandamus against the governor, though the courts could possibly issue

writs of mandamus against his inferiors, including at his request, given his

capacious constitutional authority as chief executive officer to manage

and direct the executive department.

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Above all, I hope that in the future, the lower courts, counsel, amici,

and scholars will accept my invitation to analyze both the chief-executive-

officer clause, including within the larger context of Article IV and the

entire Constitution, and the effect it has on cases involving the governor or

inferior executive officers. Hermeneutically synthesizing the text, history,

and tradition of the Texas Constitution is no small feat—one that will be

accomplished only through partnership between bench and bar. My

opinion today purports to do nothing more than scratch the surface, and

tentatively at that. I remain “open to any outcome that faithfully reflects

the original meaning of our constitutional text.” Tex. Dep’t of State Health

Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 666 (Tex. 2022) (Young, J.,

concurring).

With these thoughts, therefore, I am pleased to concur.

Evan A. Young

Justice

OPINION FILED: June 27, 2025

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