When it comes to the question of granting commutations and reprieves in death penalty cases, the governor of Texas has very limited authority. On his own authority, he can only stop an execution once, and for a maximum of 30 days. Anything else requires an affirmative recommendation from the Board of Pardons and Parole to be legal. This is both statutory and constitutional law in the state of Texas.

But at least one Texas legislator doesn't think that a little obstacle like a constitution should be grounds for Gov. Goodhair to allow executions to go forward while the US Supreme Court considers the constitutionality of lethal injection in a Kentucky case.

[Gov. Rick] Perry believes the fate of death row inmates lies with the courts, said spokeswoman Krista Moody.

"The governor does not have the authority to issue a moratorium nor does he believe there's a reason for one," she said.

Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, said Perry should issue a moratorium because the Supreme Court likely will grant a stay in every Texas execution until the Kentucky case is decided.

Whitmire noted that Perry, until overturned by the Legislature, attempted to use his executive order power to require teenage girls to be vaccinated against a sexually transmitted disease.

"If he can tell a state agency to vaccinate people, I think he can tell a state agency not to execute people," Whitmire said.

Perry, of course, was legally wrong to issue his Gardasil order last spring, and and was slapped down by the Legislature as a result. That action was clearly seen as an overstepping of his authority. Doing so in this case would be an even more blatant case of exceeding his authority -- and would be grounds for impeachment. It is up to the courts to act -- and for the Texas justice system to continue to move forward if they do not.

Rick Perry is correct in not acting in this case. If a moratorium is truly necessary, he ought to call the legislature back into session to consider one -- and perhaps also legislation restoring either hanging or the firing squad as the form of execution in Texas, rendering moot the need for a moratorium at all.

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