On Tuesday, August 10, 2021, Texas Speaker of the House of Representatives Dade Phelan (R) signed arrest warrants for 52 Democrat lawmakers who refused to appear for the beginning of the second Special Session of the Legislature called by Texas Governor Greg Abbott this year. The Democrat lawmakers left with permission during the first Special Session, but refused to return as required and instead fled the state for Washington, D.C.
The lawmakers are refusing to attend the session as required by the Texas Constitution and Texas Law in an attempt to prevent a quorum from being reached in the House of Representatives, thereby also preventing a vote on a bill that would revamp requirements for methods of voting throughout Texas. Despite the fact that the proposed law is less-restrictive than those found in some northern states, Democrats have labelled it as racist and discriminatory.
With the session having started at noon on August 8, 2021, Phelan allowed the Democrats until Tuesday to make themselves available for legislation. When the Democrats did not appear, he issued warrants for the arrest of the lawmakers.
Even before the warrants were issued and signed, Brad Urrutia, a Democrat State District Judge in Travis County (Austin) granted a temporary restraining order preventing Gov. Abbott and Rep. Phelan from “detaining, confining or otherwise restricting” House Democrats from freely moving throughout the state and from issuing any arrest warrants against them.
Following suit, three district state judges in Houston also issued orders against the arrest of the Democrat lawmakers.
Despite the orders, Phelan signed the warrants based on the understanding of Article III, Section 10 of the Texas State Constitution:
Sec. 10. QUORUM; ADJOURNMENTS FROM DAY TO DAY; COMPELLING ATTENDANCE. Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and to compel the attendance of absent members, in such manner and under such penalties as each House may provide.
Further, Rule 5, Section 8 of the House of Representatives rulebook reads, “All absentees for whom no sufficient cause is made may, by order of a majority of those present, be sent for and arrested, wherever they may be found.”
Based on these sections, current U.S. Sen. Ted Cruz (R-TX), who was Texas Solicitor General having been appointed by then-Texas Attorney General Greg Abbott, declared in 2013 during a similar situation that the Constitution, combined with the House Rules, allows for the arrest of absent members in such circumstances.
While PolitiFact has declared Sen. Cruz’s interpretation to be false, based in part on the fact that, while the rules state “be sent for and arrested,” no crime has been committed. An argument could be made that, by being absent without sufficient cause, the lawmakers are committing a crime by dereliction of duty by a public servant. The fact that the Constitution allows for the majority of those present to “compel the attendance of absent members” indicates that the attendance is part of the legislative duties and mandatory.
Despite the expectation and requirement that legislators will be in attendance for legislative sessions, whether normal or special, the district courts issued their orders, which Rep. Phelan ignored in signing the arrest warrants. This action by Phelan began the involvement by the Texas Supreme Court. On Friday, August 13, 2021, the Texas Supreme Court weighed in on the issue, granting a stay of any order or injunction against the arrest of the Democrat lawmakers.
As the ultimate arbiters at the state level of laws and the State Constitution, the justices concurred with the almost-decade old interpretation of the Constitution and Rule allowing for the issuance of warrants for absent lawmakers. Based on the events of 2013, it seems that lower courts would have acknowledged and upheld the declaration by the then-solicitor general. Instead, they chose to disregard the State Constitution and the Rules under which the lawmakers agreed to abide by taking their offices.
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