August 12, 2003
Ruling roundup

Democrats are rejoicing and Republicans regrouping after the State Supreme Court refused to issue a writ of mandamus that would have compelled the boycotting Senators to return to Austin. Chron coverage is here, Statesman is here, and Express-News is here.

Items of interest: While the Supremes rejected the GOP's lawsuit, they did not address the Constitutional arguments about whether or not any court could get involved.

Lawyers for the Democrats argued that the court does not have the power to issue a mandamus writ against state senators because it would violate the separation of powers between the Legislature and judiciary.

The court did not answer that question, instead issuing a one-sentence order saying that the request was denied.

By the end of the day, however, three of the court's nine justices amended the order. Justices Nathan Hecht, Priscilla Owen and Stephen Smith added: "The Court denies the petition for writ of mandamus without regard to the merits of the constitutional arguments."

The possibility of a mandamus writ could surface again in another setting. The Democrats have filed a lawsuit in state District Court in Travis County challenging the governor's authority to call a special session on congressional redistricting.

In response, Republican attorneys have asked the District Court for a writ of mandamus similar to the one rejected by the Supreme Court.

Most likely, a trial judge will follow the Supreme Court's lead, said Alexandra Albright, a University of Texas law professor who specializes in civil process.

"The issue is whether the trial court has jurisdiction," Albright said, and state law is not clear on that point.

The Democrats' federal lawsuit challenges the legality of changing Senate rules when Voting Rights Act issues are in play.

The lawsuit challenges Dewhurst's and Perry's plans to drop the Senate tradition that all legislation must receive a two-thirds vote in the 31-member Senate before being considered for debate.

The lawsuit alleges that the proposed change in procedure violates minority voting rights under the federal Voting Rights Act. The suit notes that nine of the boycotting senators are black or Hispanic while the two Anglo senators represent heavily minority districts.

The lawsuit claims any change in procedure under the Voting Rights Act must first be pre-cleared by the U.S. Justice Department or a three-judge federal panel in the District of Columbia.

Democratic lawyer Renea Hicks said he did not see the lawsuit as drawing a federal court into a state issue because it involves protected minority voting rights.

"It is a change in pattern and practice with respect to redistricting in Texas in a way that's never happened before," Hicks said. "There is a direct link between the change the lieutenant governor is proposing and minority voters in Texas."

This is new ground, so as with the GOP's writ of mandamus, the court may well be reluctant to get involved.

Lt. Gov. Dewhurst is mulling penalties for the missing members:

A Senate leadership source said the "authorized measures" would be fines against the missing senators. No fine had been set, but one scenario considered would assess a $1,000 fine the first day and double the fines each subsequent day.

Senate rules make no mention of fines, but the Texas Constitution says lawmakers can "compel the attendance of absent members, in such manner and under such penalties as each House may provide."

Well now. "Double the fines each subsequent day" means we're into Exponential Growth territory. The fine for missing Day 30 would be $536,870,912,000 per Senator, which is larger than the projected federabl budget deficit and slightly less than what President Bush plans to raise for his reelection campaign. The total fine for missing 30 days would be $1,073,741,823,000 per Senator. Good luck collecting on that.

In other news, the Killer D's did some fundraising, while Willie Nelson called the Texas 11 heroes. Links via Rob.

Finally, I think the Star Telegram sums everything up best:

One veteran Capitol observer, University of Texas at Austin professor Bruce Buchanan, said the unfolding drama is doing little to enhance the reputation of Texas politics.

"I've said from the beginning that this will end when the public starts paying attention," Buchanan said. "And my sense is what the public is experiencing now is mild irritation with the whole process."

Hard to argue with that.


The DMN scolds the Democrats for their letter to President Bush, calling it "a perfect example of the kind of trouble politicians in either party can manufacture when they have too much time on their hands".

The Chron applauds the Supreme Court ruling, while Linda Curtis of has an op-ed that pushes for "a statewide proposition to be placed on the November ballot to establish a permanent citizens' redistricting commission consisting of equal numbers of Democrats, Republicans and independents".

Posted by Charles Kuffner on August 12, 2003 to Killer D's | TrackBack

...and so it goes....

Jeez, judging by the national press coverage, you'd think that Texas politics is the domain of wackos and nutjobs. Hmm...come to think of it, that might not be far off....

Posted by: Jack Cluth on August 12, 2003 8:34 AM

To impose any fines, a quorum would have to be present to decide on the rules, right?

Posted by: phil on August 12, 2003 8:53 AM

That's Sen. Van de Putte's argument, Phil. I tend to agree with it, but the wording in the state Constitution is pretty vague.

A better question: Suppose the fines are something high but reasonable - say, $1000 per day. What happens if the Senators tell Dewhurst they ain't paying? What recourse does he then have? Somehow, I can't see his being able to order their arrest.

Posted by: Charles Kuffner on August 12, 2003 11:17 AM

I saw Linda Curtis with her Independent Texans booth at the rally on Saturday. She actually seemed successful in signing some people up for her list. I still have a hard time taking a "independent" group seriously that endorsed Steven Wayne Smith.

Posted by: ByronUT on August 12, 2003 1:20 PM


The Senate Rules clearly do not allow for fines to be imposed, or any other business conducted save a call for the arrest of absent legislators, if a quorum is not present. The Texas Constitution does permit the legislature to act without a quorum to compel the attendence of absent members, but I believe the intent was that this would handled by the rules of each house as voted upon by a quorum of legislators.

When the Democrats return, the rules can be changed, but until a quorum is present, I find it difficult to believe that the legislature can enact fines. And since the US Constitution prohibits ex post facto laws, so legislature can't retroactively punish the Texas 11.

Posted by: Owen Courrèges on August 12, 2003 4:41 PM

"Independent Texans" is just that. They endorsed candidates in the last general election from all four parties (Rs, Ds, Libertarians and Greens). The main reasons IT expressed for their support for Justice Smith was his advocacy of increased free speech for judicial candidates and Smith's work as a private attorney to improve ballot access for minor party candidates and in non-partisan races. Smith had also litigated on behalf of minority voting rights, and on behalf of Democrats, going back more than a decade.

Posted by: David Rogers on August 18, 2003 12:08 AM