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Meet the new special session

Same as the old special session, at least at first.

It appears likely that not enough Democrats will show up for the Texas House to conduct business when a second special legislative session convenes Saturday.

Some of the more than 50 Democratic representatives who fled Texas to foil the first special session began trickling out of their Washington, D.C., hotel and heading home Friday. But 27 members have committed to staying in the nation’s capital. At the same time, Democrats were working to confirm that at least 50 members will pledge to not return to the House floor on Saturday even if they are back in Texas.

If that happens, the chamber would again be deprived of a quorum to conduct business for at least a few days. And it could set up a showdown over whether House Speaker Dade Phelan has the authority, and political will, to compel Democratic representatives in Texas to show up at the Capitol.

The ongoing absences would further delay any consideration of the 17-item agenda Gov. Greg Abbott has set for the 30-day special session, including a contentious voting bill, which Republicans have vowed to pass into law, that motivated Democrats to leave the state last month. Two-thirds of the 150 member chamber must be present to conduct business. One seat is currently vacant.

“If you’re looking for us to telegraph exactly what we’re going to do over the next couple days, we’re not going to do that at this time,” state Rep. Chris Turner, the Democratic caucus chair, said earlier in the day. “The governor would love us to do that, but we’re not going to.”

The House Democratic caucus would not confirm any details about its next move as of Friday evening after marking the last day of the first special session that was derailed after 57 members broke quorum.

The number of Democrats actually in Washington had appeared to dwindle to about 40 members over the last few days. But with 27 Democrats planning to stay behind, even some of the Democrats seen departing from their hotel in Washington on Friday indicated the House floor may not be their destination.

[…]

“If Congress is in session, we’re in session,” state Rep. Trey Martinez Fischer, D-San Antonio, said earlier in the day. “Our job is here, and we will have a significant number of members staying here and waiting day by day, engaging day by day, finishing the fight.”

Well, we’ll see. We ought to know early on what the head count is. In one of the earlier stories I saw, it was noted that the Republicans are also not quite at full strength, as some are on vacation or otherwise not available – Jake Ellzey is now in Congress, so right there they’re down one – and that means they need that many more Dems to show up to get to 100. We don’t know if Speaker Dade Phelan is going to follow through on the threat to use DPS to hunt down wayward Dems in the state and drag them to Austin. We may eventually get a quorum, but it won’t happen right away.

Later on Friday, this happened.

Twenty-two Texas House Democrats sued some of the state’s top Republican leaders in federal court in Austin late Friday, alleging that GOP officials’ efforts to bring them home for a special legislative session infringed on their constitutional rights to free speech and to petition the government for redress of grievances.

The lawsuit was filed on the final day of the first special session called by Gov. Greg Abbott — and on the eve of a second specially called legislative session — and names as defendants Abbott, House Speaker Dade Phelan and State Rep. James White.

[…]

It’s unclear why White was listed as a defendant. White said Friday night he was not aware he’d been sued or why he was named as a defendant. The lawsuit also did not use Phelan’s legal name, which is Matthew McDade Phelan.

Abbott and Phelan did not immediately have a statement on the lawsuit.

The Democrats’ attorney, Craig Anthony Washington, a former Democratic lawmaker, did not respond to a request for comment. Washington is practicing law under a probationally suspended license, according to the State Bar of Texas.

The lawsuit alleges that some Democrats are being targeted because of their race and skin color, but then provides no evidence.

It also claims the three Republican lawmakers acted together under the “color of law” to cause the harm alleged in the suit, but then points no specific harmful actions other than “public statements.” The lawsuit also says some individual plaintiffs experienced “retaliatory attacks, threats and attempts at coercion relating to the exercise of their First Amendment rights” but again does not provide specifics.

The plaintiffs listed in the case are state Reps. Senfronia Thompson, Trey Martinez Fischer, Gene Wu, Vikki Goodwin, Ron Reynolds, Eddie Rodriguez, Jon Rosenthal, Jasmine Crockett, Mary Ann Perez, Alma Allen, Christina Morales, Nicole Collier, Celia Israel, Ana-Maria Ramos, Barbara Gervin-Hawkins, Terry Meza, Donna Howard, Jarvis Johnson, Ray Lopez, Shawn Thierry, Elizabeth Campos and Gina Hinojosa.

The lawsuit alleges that the three Republican lawmakers have attempted “by public statements and otherwise, to attempt to deny, coerce, threaten, intimidate, and prevent” the Democrats and their constituents from voting in all elections, petitioning the government for redress of grievances, speaking publicly about their constitutional rights, exercising their right of association and their right to not being arrested without probable cause. The Democrats allege that in acting together, the defendants engaged in a conspiracy to deprive them of their constitutional rights.

Because of the defendant’s actions, the complaint alleges, the plaintiffs have been “deprived of liberty for substantial periods of time, suffered much anxiety and distress over separation from their families, and much discomfort and embarrassment.” They also have suffered damages to their reputations and have had to spend time traveling to Washington to lobby Congress to pass laws that would protect voting rights.

That sounds pretty unlikely to me, even without the issues noted for attorney Craig Washington. You can read a copy of the lawsuit and come to your own conclusions, but this seems like an extreme longshot. And as to why Rep. White was named as a defendant, my guess is it stemmed from his request for an AG opinion suggesting that the quorum-breaking Dems had “vacated” their seats. Even if you could count on Ken Paxton’s office to give an honest answer, that seems like a big escalation of the stakes.

And in other desperation moves, there’s this.

Texas Republican leaders said Friday they were extending “an additional month of funding” for the Legislature as a deadline to reinstate those dollars vetoed by Gov. Greg Abbott nears, which could cost some 2,100 state workers their salaries and benefits.

The announcement Friday by Abbott, Lt. Gov. Dan Patrick and House Speaker Dade Phelan comes a day ahead of the beginning of a second special session, where it’s still unknown whether enough state lawmakers in the lower chamber will convene in time to restore the funding long term.

[…]

Citing an emergency, the Legislative Budget Board requested the transfer of funds, according to a memo dated Aug. 6 from Abbott responding to the LBB’s proposal. Funds amounting to at least $12.6 million will be transferred from the Texas Department of Criminal Justice to the Senate, the House, and legislative agencies such as the LBB, the Legislative Council and the Legislative Reference Library.

Abbott referenced his veto in that memo, reiterating his position that “funding should not be provided for those who quit their jobs early and leave the state with unfinished business, exposing taxpayers to higher costs for additional legislative sessions.”

“However, in order to ensure the Legislature is fully resourced to do the work of the next special session,” he wrote, “I recognize that the partial restoration the Legislative Budget Board had proposed is necessary.”

The extension announced Friday means that those legislative employees and legislative agencies will have funding intact through Sept. 30 instead of Sept. 1, when the next two-year state budget takes effect.

I thought the LBB could only meet when the Lege was not in session, which is certainly was on Friday. If this is all it took, then why not act sooner? And why not free up more money? This has the feel of something half-baked, though I suppose if no one challenges it in court there’s nothing to stop it. And hey, even if someone does challenge it in court, the Supreme Court will just sit on it until the matter becomes moot anyway, so what difference does it make? We’re off to a roaring start here, that’s for sure.

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3 Comments

  1. Kibitzer Curiae says:

    Re: That Certain Kitchen-Sink Discrimination Complaint of People Who are Either White or Black, or of Natural Origin against the Governor

    I kid you not.

    If my name were TREY MARTINEZ FISCHER or RON REYNOLDS — to pick just two off the list, the latter with litigation experience of his own — I would be embarrassed to have my name appear on this jewel of a pleading.

    So Beto’s group gave the esteemed exiles $500,00+ for the mission and the best they can do to make their case in federal court through a fossil of a lawyer who has been disciplined at least five times over the long course of his not-so-distinguished career and is obviously not up to the task. Pathetic.

    Come to think of it, this Kibitzer wonders whether any of the enumerated “natural-origin” descendents of persons born in foreign countries has even read what is being submitted in their behalf, or authorized this wacky lawsuit in the first instance. And how does the self-chosen temporary exile in the nation’s capital make for national-origin discrimination?

    Discrimination against Non-albinos

    Not to mention all those distinguished plaintiffs “distinguishable by the melanin in their skin”. Which presumably describes all of them, whether they went to Portugal for sun-bathing or not, white or nonwhite, Latino-surnamed or otherwise.

    Nor are the alleged civil victims of inchoate conspiratorial discrimination and disparate impact allegedly inflicted upon them by Defendants Abbot [sic], Phelan, and James White (a Black Republican whose connection to the arrest-threats is unspecified) even identified as members of the Texas legislature. Nor is there any specific complaint about the threat to have them arrested, and how that would prevent them from free-speeching and lobbying Congress.

    And how about those $5.00 in actual damages? Shouldn’t that at least be a nominal $1.00 for each plaintiff, for a sum total of $22, to be applied to the hotel bill in Washington, D.C.?

    In sum: A head-scratcher of a dollar-store lawsuit. 

    Add to that 2 cents from this Kibitzer.

  2. Kibitzer Curiae says:

    WAY TO GO !

    Whether ultimately successful or not, this is a nice professional piece of legal work:

    Plaintiffs’ Original Petition and Application for Temporary and Permanent Injunctive Relief, in Rep. Gina Hinojosa et al v. Greg Abbott et al. No. D-1-GN-21003760 in the 261st District Court of Texas, Travis County, Texas, filed-stamped Monday, August 9, 2021.

    LEGAL BASIS: Texas Declaratory Judgments Act, with request for related prohibitory injunctive relief to enjoin the defendants and their agents from arresting Democratic lawmakers. The principal argument is that the exiles have committed no crime and are accused of no crime, and that therefore they are not subject to arrest, and that additionally they are privileged from arrest while the Lege is in session.

    Unlike the wacky complaint filed by Craig Washington in federal court, they don’t complain of discrimination, but of suppression — by means of threats of arrest — of their constitutional rights and interference with how they carry out the political representation of their constituents. The emphasis is on their status as members of the opposition party, not as racial or ethnic minorities.

    This is also a good stance for a world-wide audience: Arresting opposition legislators is what autocrats do.

    FALLBACK POSITION: If relevant Texas law and Lege quorum rules do authorize the arrest of opposition lawmakers under the circumstances, Texas law violates federal constitution, and is therefore invalid because federal trumps state.

    For good measure, the State of Texas is named as defendant in addition to Abbott and Phelan in their respective official capacities, presumably because the validity of state law itself may be at issue. AG Ken Paxton will no doubt defend the State and argue otherwise.

    The TRO was granted on an emergency basis ex parte last night, with a hearing on a temporary injunction set for August 20, 2021. The file-stamp, however, is from this morning, presumably because it’s the first biz day for the court following the weekend. Ex parte means that the other side didn’t get to have their say and oppose the requested relief. That will happen at the temporary injunction hearing, assuming Paxton doesn’t file an emergency mandamus with stay request in the SCOTX in the interim.

    The Texas Tribune has links to both the pleading (with supporting affidavits from three of the Tex-Dem exiles) and the signed TRO. – Kudos!

    https://www.texastribune.org/2021/08/09/texas-democrats-special-session/

  3. […] here, and of the judge’s order is here. As the story notes, this has nothing to do with that other lawsuit, filed in federal court, which did not seem to make much sense. This one at least I can understand, […]