Public university officials in Texas are worried that a temporary state hiring freeze ordered by Gov. Greg Abbott will make it impossible to offer certain summer classes. Various state agencies are trying to figure out whether some vacant positions might be exempt. Community colleges aren’t sure whether the directive applies to them at all.

More broadly, it’s doubtful that Abbott has the legal authority to impose a hiring freeze at the universities and agencies in the first place, lawyers say. The Texas Constitution and state law mainly grant the governor authority to make appointments to boards and commissions and to veto legislation. But he is free to speak from the bully pulpit, and no university or agency official has publicly questioned the hiring freeze, which is intended to save $200 million while burnishing Abbott’s conservative bona fides.

"The governor can tell them to freeze hiring, but it has no legal weight," said Buck Wood, a lawyer in Austin who formerly held a high-level position in the Texas comptroller’s office and who is experienced in education, regulatory and other aspects of state law. "The Texas governorship is one of the weakest governorships around."

Linda Eads, a former Texas deputy attorney general who is now a Southern Methodist University law professor, agreed. "It is the Legislature that has power over the universities, not the governor. The Texas Constitution does not give the governor that kind of authority," she said.

Abbott spokesman John Wittman offered a different take: "As the chief executive officer and chief budget officer of the state, who appoints the governing boards of Texas’ universities and state agencies, Governor Abbott must be mindful of the state’s overall budgetary and fiscal health. In that capacity, he has issued a hiring freeze aimed at ensuring the state lives within its means and fully expects all state agencies to comply with his directive."

Wittman’s reference to the governor as chief executive comes from the Texas Constitution, and a passage added by the Legislature to the Government Code in 1993 says the governor is the chief budget officer. Nonetheless, lawyers inside and outside the government say, there is nothing in the constitution or state law that grants the governor authority to freeze hiring. In fact, the lawyers say, universities and agencies would be on safe legal ground — though dangerous political turf — to fill positions anyway, provided that they received adequate funding in the 2015 appropriations bill that was passed by the Legislature and signed by Abbott.

A frozen summer?

In any event, universities and agencies are scrambling to understand Abbott’s directive and comply, albeit in ways that might still allow them to fill some positions. The directive, effective through August, doesn’t apply to positions with a direct impact on public safety, positions not funded with money appropriated by the Legislature or positions in agencies such as the General Land Office that are under a separately elected official. Moreover, universities and agencies can seek waivers for "critical positions" on a case-by-case basis, according to Abbott’s budget director, Steven Albright.

"Among our critical needs, summer school is at the top of our list," said Laylan Copelin, a spokesman for the Texas A & M University System, which has 11 campuses, including the flagship in College Station. "Some of our schools typically hire adjunct professors to teach summer courses because it is cheaper and they are necessary to meet the demand. If we don’t get a waiver, we are studying whether or not we can offer summer classes. Many of those classes are critical for students to be able to graduate on time."

Securing a summer school waiver is also a priority for the 14-campus University of Texas System, although the Austin flagship campus seems to be in better shape than most.

"We’re in the peak time for hiring instructional faculty, and we’re continuing to recruit," UT-Austin President Gregory L. Fenves said. The university will use tuition and other nonappropriated funds to cover faculty hiring until September, he said. Graduate students who double as paid teaching assistants are mostly funded by external grants, he added.

The impact on vacant staff positions at the UT-Austin campus appears to be much more pronounced. About 250 recently posted vacancies are subject to the freeze, said spokesman J.B. Bird.

"Until further clarity is provided, we cannot guarantee in-process hires for legislatively funded staff positions will receive final approval," said an internal memorandum from Debra Kress, UT associate vice president for human resources. "New legislatively funded staff positions cannot be approved for posting."

At Texas State University, the overwhelming majority of summer instructors are already full-time teachers employed by the university, spokesman Matt Flores said. Nevertheless, he said, "we don’t know how many instructors we will need for this summer."

Flores added, "We have approximately 30 staff positions that are open that are funded through state appropriations, but what we don’t know is how many of those positions we will seek waivers on from the state, and we don’t know which of those the state will approve."

Weathering the cold

Officials of the state’s 50 community college districts are trying to figure out whether and how they might be affected by Abbott’s hiring freeze. Their staff and faculty members aren’t considered state employees, but some receive group health insurance benefits from the state.

All full-time employees at Austin Community College get health care coverage through the Employees Retirement System of Texas, ACC spokeswoman Jessica Vess said.

"ACC is not deemed a state agency," said Neil Vickers, ACC’s executive vice president for finance and administration. "If the order is found to apply to the college, it would only impact ACC’s state appropriations, which accounts for less than 15 percent of the college’s funding."

Officials at various state agencies said they would continue to fulfill their missions despite the hiring freeze.

For example, the Texas Commission on Environmental Quality has 64 vacant positions out of a full-time cap of 2,780. "We do not have any openings posted right now," spokesman Andrew Keese said.

The Texas Parks and Wildlife Department currently plans to fill four of 303 vacant positions, spokesman Josh Havens said. "The remaining vacancies will not be filled until the hiring freeze has concluded or the governor grants a specific exception to the department," he said.

Seth Hutchinson, vice president of the Texas State Employees Union, said the freeze would have a terrible effect on universities and agencies.

"And it’s completely unnecessary," Hutchinson said. "The state has enough money to finish out the budget cycle, or it could tap the rainy day fund. State universities have been underfunded by the Legislature for years. That’s why we’ve seen a dramatic rise in tuition. A budget freeze will squeeze their ability to offer services to students even more. Whether the governor has the authority is a moot point; it’s happening in fact."