Last week, Speaker Dade Phelan (R-Beaumont) removed Rep. Joe Moody’s (D-El Paso) designation as speaker pro tempore — a largely ceremonial position that’s considered second-in-command in the speaker’s absence.
The House Rules, in Rule 1 Section 10, vests that authority in the speaker and specifies that the speaker pro tempore “serve[s] at the pleasure of the speaker.”
Similar language existed in the committee chairmanship provision until the 73rd legislative session when it was removed by the House. Since then, the “serve at the pleasure of” language which grants broad authority over the matter has never been added back in. At the time, the language was stripped out of fear of retribution by the speaker against certain members.
The authority to appoint members to committees and designate chairs and vice-chairs of those committees is vested in the speaker of the House. Ten of 13 Democratic chairs in the House were part of the initial quorum break and most remain in the nation’s capital.
But the ability to remove committee chairs is less clear. A subsection of that provision states that a new speaker during the course of a session may appoint new committee chairs.
Over the last week, numerous calls within the Republican ranks have been made to strip those truant Democrats of their chairmanships — including by the governor and lt. governor.
Newly elected Texas GOP Chair Matt Rinaldi, and a former House member, was among the first to call on Phelan, saying, “Our Republican Speaker has the ability to revoke committee chairmanships currently held by Democrats.”
From the back microphone during last Tuesday’s brief floor proceedings, Rep. Morgan Meyer (R-Dallas) asked Phelan whether the House could revoke chairmanships without a quorum. With advice from the House parliamentarians, Phelan replied the body could not — a position the speaker has not reversed from since.
In rebuttal, Rinaldi pointed to Article 3, Section 10 of the Texas Constitution that reads, “Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide.”
Rep. Tony Tinderholt (R-Arlington) — who proposed a resolution last week that, if adopted, would penalize members who break quorum by stripping their committee chairmanships and seniority privileges — is one of the members arguing that it can be done without a quorum.
Tinderholt’s argument, he told The Texan in an interview, is not that the speaker can strip the chairmanships, but that no quorum is necessary for the body to vote on it.
After pointing to the Texas Constitution’s “penalty” provision, he cited Rule 5, Section 6 that governs what the House may do without a quorum, which reads, “If a registration or record vote reveals that a quorum is not present, only a motion to adjourn or a motion for a call of the house and the motions incidental thereto shall be in order.”
However, the rules are silent on what constitutes a “motion incidental.”
“If a penalty issued to enforce a quorum does not meet the ‘incidental’ qualification, then what does meet it?” said Tinderholt. “How is it not incidental to a call of the House to hold members accountable and compel a quorum using penalties?”
Another member that has studied the matter, Rep. Cody Vasut (R-Angleton) told The Texan, “When I arrived in the House on Tuesday, I thought from a cursory review of Rule 1, Section 15 of the House Rules that the speaker might have authority to remove committee chairs.”
“After conducting extensive research into the provisions of the Texas Constitution, the House Rules, and applicable precedents over the past three days, I am now convinced the speaker does not have authority to remove committee chairs.”
He further stated, “I am not convinced from my review of applicable precedent that a motion to remove a committee chair is a motion incidental to either a motion to adjourn or a motion for a call of the house.”
In a memo put together by Vasut and provided to The Texan, he asserts, “[I]f a relatively simple procedural motion like a motion to recess is not incidental, then it seems likely that a motion to impose a substantive and permanent change to a committee chairmanship would not be incidental.”
Tinderholt disagrees and referred to precedent he’s identified that supports his case — namely, various court decisions over the last century that use the word “incidental” as something that occurs peripherally to some other action.
In this case, Tinderholt argues, a vote by the House to revoke committee chairmanships from truant Democrats would occur peripherally to the call of the House motion — thus, not requiring a quorum.
“This is something I’ve been fighting every day for the last week,” Tinderholt said, emphasizing that he will file the penalizing resolution every session or special session to come until its adoption. “It’s important to note that this would apply to Democrats and Republicans alike, so if there is a Republican quorum break down the road, this would penalize them as well.”
Tinderholt added that over half of the remaining House members have indicated their support for his efforts — further pointing to the governor and lt. governor’s desire to see the truant Democrats penalized in this manner.
So, the argument in the affirmative centers on the “penalty” provision in the constitution that, Tinderholt and Rinaldi would argue, allows the body without a quorum to use any penalty it deems necessary to compel a quorum.
The case against focuses on the lack of explicit permission in the current House rules to revoke chairmanships and that a quorum must be established before such amendments may be made.
This debate has raged for a week now within the House GOP, though leadership has not budged from its first ruling.
Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.
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.