87th LegislatureState HouseState Senate‘Reasonable’ Capitol Occupancy Regulations Acceptable, Remote Voting Likely Prohibited, Says Attorney General

According to a new attorney general opinion, remote floor voting will likely not hold up to legal scrutiny.
January 12, 2021
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Entry into the state capitol this session may be subject to “reasonable” conditions, according to a legal opinion issued by Attorney General Ken Paxton.

On this opening day of the 87th Legislative Session, certain protocols are already in effect. Coronavirus testing is required for entry and entry into the chambers and galleries are by ticket only.

Which protocols are established for the session will be cemented in the coming days when both the House and Senate pass their chamber rules.

Rep. Briscoe Cain (R-Deer Park) requested the opinion from Paxton in order to clarify the guardrails from which the legislature must operate.

Paxton responded with, “The First Amendment of the U.S. Constitution prohibits laws that abridge the freedom of speech or the right of the people to petition the government for a redress of grievances. However, to the extent that the Capitol is a limited public forum, the Legislature may impose reasonable content-neutral conditions for the time, place, and manner of access.”

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Pointing to the Texas Disaster Act of 1975’s “ingress and egress” provision, Paxton says the governor’s ability to regulate individuals’ occupancy within certain places applies in this instance.

Regarding public testimony and other such aspects of the legislature, he added, the bodies “must determine procedures, consistent with the Texas and U.S. Constitutions, for providing public access, conducting public testimony, debate, and voting on legislation during the legislative session.”

Cain also requested clarity on remote floor voting. A suggested measure would allow remote voting from the members’ offices instead of from their desks on the floor of the Texas House chamber.

Citing a provision of the Texas Constitution that requires two-thirds “attendance” to constitute a quorum, Paxton tempered that idea in his opinion, stating that, “A court could construe this term and others in the Texas Constitution to require physical presence in the chamber in order to attend and be counted for purposes of a quorum.”

While a non-binding legal opinion, Paxton’s analysis provides wiggle room for session protocols.

Today, the House will elect its new speaker — presumed to be Rep. Dade Phelan (R-Beaumont). Once that occurs, the body will turn its sight to the rules-setting process. And with legal support penned by the attorney general, the likelihood for some degree of regulations for entry has increased significantly.

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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.