Now, in a quick legal riposte, the Supreme Court of Texas has temporarily reversed the decision — a preliminary win for Abbott and Phelan.
The court stayed the Austin decision this morning, granting Abbott’s and Phelan’s request to hold the restraining order.
“Centuries of historical practice establish that courts have no business pasing on a legislature’s actions in ensuring a quorum,” the two state leaders wrote in their petition for a writ of mandamus.
“The history and tradition of the state and federal legislatures confirm that the House’s actions do not violate the U.S. Constitution. Texas and at least forty-one other states have similar compulsion-of-attendance provisions in their Constitutions.”
Legally, Abbott and Phelan have relied on Article III of the Texas Constitution, which says the chamber may “compel the attendance of absent members.”
“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 Constitution states.
In the first special session that ended last week, the Texas House voted 76 to four to initiate a “call of the house” and force attendance if necessary.
The House issued a similar call of the house yesterday for this current special session, which began Saturday.
Shortly after that call, 19 absent Democrats successfully got a temporary restraining order in Travis County district court. It said state leaders “erroneously interpreted Texas law and legislative rules to permit the detention, confinement, or other restriction of members of the Texas House of Representatives” and barred Abbott and Phelan from commanding law enforcement to “detain, confine, or otherwise restrict” truant members.
Now that the Supreme Court of Texas has overturned this temporary restraining order, Abbott and Phelan may issue arrest warrants at least until a more solid decision in the case.
However, the threat of arrests seems slim. So far, Phelan has only issued one arrest warrant, meant for Rep. Philip Cortez (D-San Antonio). It expired at the end of the first special session without an arrest after Cortez briefly returned to Austin before leaving again.
This legal volley follows a separate lawsuit that some of the quorum-breaking Democrats filed against Abbott and Phelan on Friday.
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