87th LegislatureState HouseTexas House Can Compel Democrat Attendance by Arrest, Supreme Court Rules

The court's ruling comes after a back and forth in lower courts during which Texas Democrats received a preliminary stay of their arrests.
August 17, 2021
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The Texas House may compel the attendance of its members by arrest if necessary, the state Supreme Court ruled on Tuesday. The court opinion comes after over a month without a legislative quorum in the Texas House.

Democratic members have been camping out in Washington, D.C. or other undisclosed locations in order to prevent a GOP-backed election reform bill from passing. Originally, nearly 60 members flew to D.C. but that number has dwindled since as some returned to Austin and others went elsewhere, including overseas.

Last week, Speaker Dade Phelan (R-Beaumont) issued 52 civil arrest warrants for Democrats still breaking quorum, but no arrests have occurred since. Some Democrats sued, securing a preliminary victory when a Travis County district court ruled that the state could not arrest truant members. That order was promptly but temporarily halted by the Texas Supreme Court pending further review.

That review was delivered Tuesday when Justice Jimmy Blacklock wrote the court’s opinion, stating, “The legal question before this Court concerns only whether the Texas Constitution gives the House of Representatives the authority to physically compel the attendance of absent members.”

“We conclude that it does, and we therefore direct the district court to withdraw the [temporary restraining order].”

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Spokesman for Speaker Phelan, Enrique Marquez, told The Texan, “We are grateful to Attorney General Ken Paxton and his staff, and to the Supreme Court of Texas for protecting our state constitution and the rule of law with their decision.”

Another attempt to void the arrest warrants was slapped down by the Supreme Court last week when it issued a temporary stay on three Harris County district judges’ orders prohibiting the arrest of 45 of the 52 House Democrats.

Such questions of whether arrest orders should be issued or if a vote on the election reform bill is desirable are political in nature, the Supreme Court said, and thus not under its purview.

The court cited Article III, Section 10 of the Texas Constitution which 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.”

The plaintiff Democrats argued that the provision allows for “only persuasion and dialogue, rather than true compulsion.”

Rejecting this framing, the court states that the plaintiffs’ position would “restructure … the careful balance between the right of a legislative minority to resist legislation and the prerogative of the majority to conduct business.”

The court also states that without this order from the court, the lower court’s order would have improperly allowed Democrats to run out the clock on the second special session. Blacklock writes, “Whatever one’s view of the politics of the situation, it should be clear that an ex parte proceeding where one side is totally shut out of the process was an improper way to resolve matters of such significance.”

“Article III, section 10,” Blacklock wrote, “is one of the foundational constitutional rules governing the law-making process in Texas. Neither the passage of time nor the passions of a hotly contested legislative dispute can change what it means.”

The 52 members whose arrest warrants were issued are listed below:

  • Alma Allen (D-Houston)
  • Rafael Anchía (D-Dallas)
  • Michelle Beckley (D-Carrollton)
  • Diego Bernal (D-San Antonio)
  • Rhetta Bowers (D-Garland)
  • John Bucy (D-Austin)
  • Elizabeth Campos (D-San Antonio)
  • Sheryl  Cole (D-Austin)
  • Nicole Collier (D-Fort Worth)
  • Philip Cortez (D-San Antonio)
  • Jasmine Crockett (D-Houston)
  • Yvonne Davis (D-Dallas)
  • Joe Deshotel (D-Beaumont)
  • Alex Dominguez (D-Brownsville)
  • Trey Martinez Fischer (D-San Antonio)
  • Barbara Gervin-Hawkins (D-San Antonio)
  • Jessica González (D-Austin)
  • Vikki Goodwin (D-Austin)
  • Ana Hernandez (D-Houston)
  • Gina Hinojosa (D-Austin)
  • Donna Howard (D-Austin)
  • Celia Israel (D-Austin)
  • Ann Johnson (D-Houston)
  • Jarvis Johnson (D-Houston)
  • Julie Johnson (D-Farmers Branch)
  • Ray Lopez (D-San Antonio)
  • Armando Martinez (D-Weslaco)
  • Terry Meza (D-Irving)
  • Ina Minjarez (D-San Antonio)
  • Christina Morales (D-Houston)
  • Sergio Muñoz, Jr. (D-Palmview)
  • Victoria Neave (D-Dallas)
  • Evelina Ortega (D-El Paso)
  • Leo Pacheco (D-San Antonio)
  • Claudia Ordaz Perez (D-El Paso)
  • Mary Ann Perez (D-Houston)
  • Ana-Maria Ramos (D-Richardson)
  • Richard Peña Raymond (D-Laredo)
  • Ron Reynolds (D-Missouri City)
  • Eddie Rodriguez (D-Austin)
  • Ramon Romero. Jr. (D-Fort Worth)
  • Toni Rose (D-Dallas)
  • Jon Rosenthal (D-Houston)
  • Penny Morales Shaw (D-Houston)
  • Carl Sherman (D-DeSoto)
  • Shawn Thierry (D-Houston)
  • Senfronia Thompson (D-Houston)
  • Chris Turner (D-Grand Prairie)
  • Hubert Vo (D-Houston)
  • Armando Walle (D-Houston)
  • Gene Wu (D-Houston)
  • Erin Zwiener (D-Driftwood)

The House has gone 36 days without a quorum and has thus been unable to advance any of the legislation identified on Abbott’s priority list.

This second special session’s 30-day clock will expire on September 6 regardless of what, if anything, has been passed by the legislature.

Editor’s Note: This article has been updated to include comment from spokesman for Speaker Phelan, Enrique Marquez.

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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.