87th LegislatureState HouseDespite Some Returning to Texas, No Democrats Have Been Arrested: Here’s What We Know

After three weeks of no quorum and most of the Democratic caucus out of state, the Texas House remains frozen — unable to carry out any business.
July 29, 2021
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The first arrest warrant has been issued in the 14-day saga as Democrats maintain their presence outside the reach of Texas law enforcement and prevent the lower chamber from establishing a legislative quorum.

Rep. Philip Cortez (D-San Antonio) had returned to Austin last week to engage in negotiations on the GOP-backed election reform bill but returned to Washington, D.C. on Sunday.

According to Speaker Dade Phelan (R-Beaumont), Cortez had assured his colleagues that he would remain in Texas and continue to engage in negotiations on the election reform bill. But once that assurance was reneged, and Cortez said he had rejoined his colleagues in D.C., Phelan issued a civil arrest warrant for the San Antonio Democrat — but none of his colleagues.

Phelan then said Cortez had “irrevocably broken [his] trust and the trust of this chamber.” He was one of nearly 60 Democrats that flew to the nation’s capital on July 12 to break quorum and prevent passage of the election reform bill.

The speaker’s office did not answer whether other such orders had been issued or if Cortez’s was the first during this 14-day episode, but no such previous example has been announced.

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The Thursday after the quorum break, Rep. Kyle Biedermann (R-Fredericksburg) said that both the Department of Public Safety (DPS) and the House Sergeant at Arms informed him they had not been directed to “go and retrieve” Democratic members still in Texas by leadership.

When asked for verification at that time, DPS said it “does not discuss operational specifics” and referred The Texan to the Sergeant at Arms, which did not return an inquiry.

Phelan’s speakership hinged upon a broad array of support, including from a bevy of Democrats, to secure the position during the 87th Regular Session’s twilight.

But after Rep. Joe Moody (D-El Paso) was removed as speaker pro tempore, a joint statement of a few Democratic caucuses indicated much of that support no longer exists. “There needs to be 76 members who decide who our next Speaker is, and more than 60 are not there,” the statement read.

There are 67 Democrats in the Texas House.

Since the original break, Phelan has ordered truant members to repay their per diems and sent a chartered plane to bring Democrats back from D.C. — an offer that was perceived as empty as its return trip to Austin.

In response to the legislature’s screeching halt, Governor Greg Abbott said he would call continuous special sessions “up until next year’s election if necessary” to pass the election reform bill and other pieces of priority legislation. He also said the truant Democrats would be arrested and “cabined inside the Capitol” to ensure an end to all quorum breaking.

While Abbott holds a lot of sway rhetorically, he does not have the authority to make such an order. That belongs to the speaker of the House and while Phelan has condemned the quorum bust, it appears he’s not issued any arrest warrants outside of Cortez’s.

In response to a public information request, DPS told The Texan they have no record of communications with either the governor’s office or speaker’s office regarding securing a quorum.

On July 13, the day of the initial quorum break, House Administration Committee chair Rep. Will Metcalf (R-Conroe) sent a letter to Capital Region DPS director David Cabrera requesting the assistance of troopers to aid operation of the chamber under direction of the Sergeant-at-Arms.

DPS, being a state law enforcement agency, has no jurisdiction outside of Texas and so Democrats’ self-exile in D.C. is out of reach of those who’d likely be tasked with arresting them.

The Texas Constitution provides that the chambers may “compel the attendance of absent members, in such manner and under such penalties as each House may provide.” Civil arrest warrants are one tool by which the speaker can compel attendance, a means to prevent to all extents possible an effective permanent filibuster of the legislature.

At the time of the quorum break, six other Democrats were not part of the D.C. brigade but also were not in the chamber. Two of those six had excused absences.

Cortez’s warrant says officials are commanded to arrest the member “wherever he may be found in the State.” But the House rule governing the order’s process does not include the “in the State” stipulation, and just says “wherever they may be found.”

Another option for recourse includes stripping truant Democrats of their committee chairmanships — a topic hotly debated among the state Republicans. Abbott, Lt. Governor Dan Patrick, and many state representatives have all stated their support for such a measure. But some, including House leadership, have said it cannot be done without a quorum.

Rep. Tony Tinderholt (R-Arlington) filed a resolution the same week of the initial quorum break to strip the chair positions as well as other seniority privileges. It has not moved since filing since, as leadership has stated, almost nothing can be done without a quorum.

But as for the concept of revoking chair positions, even when a quorum is reinstated, leadership has been silent. Neither Phelan nor Metcalf, chair of the committee through which the resolution would likely have to pass, have voiced opinions on the resolution or its central proposition.

Metcalf did echo Phelan’s sentiments about Cortez and the warrant issued for his arrest.

Most Democrats remain in D.C. — and the special session ends next week.

Editor’s Note: This story has been updated to include mention of Metcalf’s letter to DPS Regional Director Cabrera that was sent to The Texan after this article’s publishing.

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Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.