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Supreme Court tosses no-arrest order

Things just got more interesting.

House Democrats who refuse to show up for the Legislature could soon be detained by law enforcement and brought back to the state Capitol, after the Texas Supreme Court on Tuesday voided a state district judge’s temporary restraining order barring their arrest.

The all-Republican high court’s order came at the request of Gov. Greg Abbott and House Speaker Dade Phelan, also both Republicans, who petitioned the court on Monday to overturn a recent ruling by a Travis County district judge that blocked them from ordering the arrest of quorum-busting Democrats, who were in Washington, D.C., for about a month. The House Democrats in the suit have until Thursday at 4 p.m. to respond to the court. Democrats who are arrested would not face criminal charges and could not be jailed or fined. Law enforcement officers carrying out arrest orders by state officials could only try to bring them to the House chambers.

[…]

Without the Supreme Court’s intervention, Abbott and Phelan would have had no assurance whether the temporary restraining order would be lifted, and such orders are not appealable. The first scheduled hearing in district court is set for Aug. 20, when Judge Brad Urrutia would decide whether to grant Democrats a temporary injunction. Waiting until then “virtually guarantees that no significant legislation will be passed during this session,” Judd E. Stone II, the state’s solicitor general, argued in his emergency motion to the Supreme Court.

The state also argued that the Supreme Court’s action is warranted because the House speaker is immune from suits for legislative acts.

“Compelling the attendance of absent members by the House is a quintessential legislative act,” the state’s motion read, adding that Urrutia’s “hasty” order “ignores this fundamental principle.”

The state also argued that the House Democrats’ claims are “quintessential political questions” that lie beyond a court’s power to decide. The House’s rules allow for present members to compel the attendance of missing lawmakers, and at least 41 other states have similar provisions in their constitutions, the motion read.

In a response, lawyers for the House Democrats who received the temporary restraining order said the state sought an order that will free it to “to forcibly arrest political opponents who have committed no crime.”

Unlike other states, whose rules only require the presence of a majority of members to reach quorum, Texas requires a two-thirds supermajority “because the framers of the Texas Constitution prioritized high levels of participation and consensus-building in legislative decision making, even if it increased the costs of the process and the possibility that the process could deadlock,” the Democrats’ lawyers argued.

“In other words, the architects of the Texas government fully expected, and even encouraged, the power of a cohesive minority of members to ‘bust the quorum’ as a means of participation in the decision-making process,” their response read, adding that the Democrats were “acting like true Texans.”

They also argued that the state did not prove it would be harmed if the Supreme Court did not grant a stay, while the House Democrats — some of whom had already returned to the state on the understanding that Urrutia’s order protected them from arrest — would suffer harm.

Once one of those lawmakers was arrested “without a premeditating crime or due process, the Court cannot un-ring that bell,” the Democrats’ lawyers argued.

See here for the background. I don’t care for this ruling, and I agree that the power to arrest political opponents, even in this limited circumstance, is one we should be extremely reluctant to allow, but I can see the state’s argument, at least from a procedural perspective. I could also note that as Abbott has unlimited power to call special sessions, the “nothing can get done till we get a ruling on the TRO” assertion rings a little hollow. I mean, other than the Article X funding, which could have been done and dusted in the first session, before the quorum break, if Dade Phelan and Dan Patrick had chosen to prioritize it, none of these items needs to happen any time soon.

As noted, the Dems have until tomorrow to respond, and I guess then SCOTx will either let this order stand or revise it. The still-quorumless House voted to send law enforcement out for the absentees, though who knows what will come of that. I really don’t expect anyone to actually be arrested, but we’ll see. That later Trib story mentions a couple of Dems – Reps. Celia Israel and Jon Rosenthal – who are apparently in the state but not at the Capitol. Maybe they should avoid being at home for the next few days, or at least not answer the doorbell. Never a dull moment, that’s for sure. The Chron has more.

UPDATE: Warrants have been signed for 52 missing Dems. Place your bets on how many actually get arrested and/or dragged into the Capitol.

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14 Comments

  1. Jason Hochman says:

    I hope my representative, Mrs. Morales Shaw, is not arrested. I think that she is a nice person who just got swept up in the hate filled Democrat party.

  2. C.L. says:

    Looks like Butch and Sundance are going to be on the run !

  3. Bill Daniels says:

    Assuming there are arrests, and legislators are forcibly brought to the Capitol, do they have immunity for crimes committed during the arrest process? It seems pretty easy to catch a separate charge of resisting arrest, and/or obstruction of justice based on cases we see in the news.

    Assuming a legislator, when caught, refuses to be arrested, or struggles to avoid arrest, can those charges eventually be prosecuted, even though they cannot otherwise be arrested for stuff like that when traveling to and from the Capitol?

    One thing is sure, if Dade puts on his big boy pants and actually follows through, it will make for very entertaining television, watching the arrest and transport videos via police body cam and squad car cameras. Bonus if they, as arrestees, are body cavity searched, or at minimum, given a full Terry stop pat down. Officer safety, y’all.

    Then there’s the next issue, once the wayward legislators are deposited at the Capitol, what is authorized to keep them there, to make sure they do not abscond again? I’d like to see Obama’s kid cage builders be brought in to build cages for the legislators, to keep them from running off again, but I don’t know if that would be prescribed.

  4. Jason Hochman says:

    more than the cavity search, I would like to see the legislators display their Covi-Pass Safe Passport, and then get tested, and be kept in isolation until we can be sure they are healthy.

  5. C.L. says:

    Hard to vote on anything if you’re in a Travis or Williamson County holding tank.

  6. Bill Daniels says:

    STUNNING. AND. BRAVE.

    Houston’s own chica loca Carol Alvarado launches into filibuster to protect the rights of our lazy vampire-American community. I mean, it worked out great for Wendy Davis, so why not, I guess.

    Pro tip: Hey Carol, you can’t read Green Eggs and Ham to fill the time, because Dr. Seuss is racist now. Turns out Ted Cruz really WAS ahead of his time.

  7. C.L. says:

    If by ‘ahead of his time’ you mean he has kids in a private school who are required to wear masks (and he’s okay with that as they’re still enrolled there) but also turns his hat around to rail against local governments who look to enforce a mask mandate to keep their constituents, then yeah, sure.

  8. C.L. says:

    *keep their constituents safe*

  9. policywonqueria says:

    “Dr.” Seuss has previously been exposed as an academic imposter, and unspecified sources have it that the contents of run-on speechmaking in the Texas Senate has to be germane to the subject, lest a point of order bust the filibuster.

    Some contemporaries of course may not appreciate the difference between German and germane; perhaps those whose reading skills don’t rise above green egos and ham.

    So here are the basics in simple K-12 English:

    Q & A FROM A RECENTLY DEFUNDED LEGISLATIVE AGENCY:

    What is a filibuster?
    A filibuster is the prolonged discussion of a bill by an individual, intended to delay legislative action.

    Are filibusters allowed in the Texas legislature?
    Filibusters are permitted in the Senate but not in the House of Representatives.

    Are there any rules for a filibuster?
    Filibusters are governed by the Senate rules and by precedents interpreting the rules.

    Rule 3.02 prohibits eating or drinking in the Senate chamber.

    Rule 4.01 requires a member of the Senate to stand at his or her desk to address the Senate. The member speaking may not sit, lean, or use a desk or chair in any way. Bathroom breaks are not allowed.

    Rule 4.03, which governs the interruption of a member who is speaking, allows other senators to raise objections if a speaker does not confine his or her remarks to the issue under consideration or if his or her voice is inaudible.

    Is there a way to end a filibuster?
    If a point of order is raised that the senator speaking has violated the rules for decorum or debate, the presiding officer will warn the senator twice; after a third violation, the Senate may vote on the point of order. If it is sustained, the senator speaking must yield the floor.

    https://lrl.texas.gov/whatsNew/client/index.cfm/2011/5/23/Filibusters-and-Chubbing

  10. Bill Daniels says:

    Wolf,

    ““Dr.” Seuss has previously been exposed as an academic imposter….”

    This is classic Frankfurt School. Tear down and defame everything that binds a people together, destroy their shared heritage. Doctor or not, Dr. Seuss is a beloved part of our shared heritage.

  11. policywonqueria says:

    Theodor Seuss Geisel was an immensely accomplished German-American author, best known for being able to successfully communicate with children.

    No doctor. Oxford dropout, much rather.

    Here is more: https://www.britannica.com/biography/Dr-Seuss

    Don’t mention it, and always mind the gap in the tube.

    Dr. Swift,
    The London Underground, Western Hemi-sphere

  12. Kibitzer Curiae says:

    Judicial Branch of the Texas GOP busy these days …

    THE SUPREME COURT OF TEXAS
    Orders Pronounced August 12, 2021

    MISCELLANEOUS
    A STAY IS ISSUED IN THE FOLLOWING PETITION FOR WRIT OF MANDAMUS:
    21-0675
    IN RE STATE OF TEXAS; from Harris County

    relator’s emergency motion for temporary relief granted
    stay order issued
    response requested due by 8:00 a.m., August 16, 2021

    [Note: The petition for writ of mandamus remains pending before this Court.]

  13. Kibitzer Curiae says:

    TEXAS GOP AUTO-GOLPE IN PROGRESS

    The petition in Tex. 21-0667 remains pending and a motion is oustanding to consolidate Tex. 21-0675 (the Gene Wu mandamus/habeas corpus) into it.

    The Lege-Dems have gotten an extension on their briefings, but consider this:

    (1) The AG is aligned with ABBOTT (see their join press release in the de-masking litigation as the latest manifestation)
    (2) The AG brought the mandamus in the supreme court on behalf of both ABBOTT and the SPEAKER not to mention for himself (as “The State of Texas”) even though Abbott and Speaker inhabit different branches of government
    (3) The SCOTX granted temporary relief instanter even though Paxton didn’t first to the court of appeals, which is normally a prerequisite.
    (4) ABBOTT is ALIGNED with the Speaker and the Republican Majority in the House

    In short, they are all aligned, share the same interests, and are committed to the same outcome: Crushing the opposition party.

    There is no way to win.

    If the Judicial Republicans get to issue a SCOTX opinion for the benefit of the Executive Republicans (Abbott as Governor and Paxtion as “The State”) and the Speaker as agent of the Republican Majority of the House, it will only be worse because that opinion will purport to validate the Republicans’ collective enterprise in consolidating their complete control over state government, and will have the force of precedent going forward.

    It follows that the Lege-Dems would have good reason to non-suit their action in the trial court, thereby killing off the case in the trial court, and also mooting the pending mandamus case against the judge who signed the TRO in their favor.

    On the other hand, if they believe they have a viable legal case, they might try to get a temporary injunction hearing immediately with the presiding judge of the court to which the case was assigned. An appeal would have to go to the Third Court of Appeals before the SCOTX gets it, at least under normal procedures. But this would at best result in a delay of the inevitable denouement in the high court.

    In the interim, the only thing that’s stayed by the SCOTX is the TRO, not the case or any proceedings in it as would be the scenario in an interlocutory appeal from a temporary injunction by Abbott or the State.

    To wit:

    “The temporary restraining order dated August 8, 2021, in Cause No. D-1-GN21-003760, styled Rep. Gina Hinojosa, et al. v. Greg Abbott, in his official capacity as
    Governor of the State of Texas, et al., in the 261st District Court of Travis County, Texas, is stayed pending further order of this Court.”

    Note that the judge of the 261st is the Hon. Lora J Livingston, not the criminal court judge who signed the emergency ex parte order over the weekend and is the named respondent in the In re Abbott mandamus.

    If it comes to an interlocutory appeal, we’ll likely see Paxton follow the playbook used in Anti-Defamation League v. Abbott last year: Getting the SCOTX to mandamus the Third Court of Appeals if that court’s handling of the matter is not to their liking.

    The best hope for Dems might be in federal court, assuming they can make out a federal constitutional case, presumably based on the First Amendment. In the SCOTX, they are looking at doom.

    Commentorial note: Wrote this yesterday, but didn’t post it. Meanwhile, we’ve seen what happened in the mask-mandate debacle.