Friday, August 20, 2021

Texas Supremes Say State House Can Arrest Absent Members

The Texas Supreme Court ruled earlier this week that present members of the Texas House of Representatives can order the arrest and detention of absent House members under the state constitution and House rules.

The case, In re Greg Abbott, arose when Texas House Democrats fled the state in order to deny the House a quorum to pass voting restrictions. (A quorum for the state House is two-thirds of the members.) Present members voted to invoke House Rule 5, which authorizes a bare majority to "arrest" absent members. The absent members sued to halt the move, and the lower court issued a temporary restraining order prohibiting the House from arresting them. The Texas Supreme Court reversed.

The court pointed to Article III, Section 10 of the Texas Constitution, which provides that while two-thirds of a state legislative chamber "constitute[s] a quorum to do business," "a smaller number" may "compel the attendance of absent members, in such manner and under such penalties as each House may provide." According to the court, "[j]ust as article III, section 10 enables 'quorum-breaking' by a minority faction of the legislature, it likewise authorizes 'quorum-forcing' by the remaining members." The court wrote,

After examining the text and history of article III, section 10, together with the relevant judicial precedent, we conclude that the disputed provision means just what it says. . . . The text of article III, section 10 is clear, and the uniform understanding of the provision throughout our state's history--including around the time of its enactment--has been that it confers on the legislature the power to physically compel the attendance of absent members to achieve a quorum.

The court pointed to language in Kilbourn v. Thompson (1880), which interpreted the parallel provision in the U.S. Constitution, as persuasive authority. It wrote, "In Kilbourn, the U.S. Supreme Court's interpreted the federal constitution's quorum-forcing language to vest expansive power in Congress to determine the 'Manner' by which to compel 'the Attendance of absent Members.' In the Court's words, 'the penalty which each House is authorized to inflict in order to compel attendance of absent members may be imprisonment.'"

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