You can’t arrest the quorum-busters, at least not yet

Good to know.

A state district judge in Travis County issued an order blocking the arrest of House Democrats who have broken quorum by leaving the state, paving the way for those who remain outside of Texas to return home without threat of apprehension.

State District Judge Brad Urrutia, a Democrat, granted the temporary restraining order late Sunday night restricting Gov. Greg Abbott and House Speaker Dade Phelan from “detaining, confining or otherwise restricting” the free movement of House Democrats within the state or issuing any warrants ordering their confinement.

The order expires in 14 days unless extended by Urrutia. The court will hear arguments on a temporary injunction on Aug. 20 where Abbott and Phelan must show why a temporary injunction should not be filed against them.


The petition for the restraining order appears to be preemptive in nature, as the House has not yet voted to renew a call of the House in the second special session which began Saturday.

“[T]he Speaker thinks he can wave his hand and have his political opponents rounded up and arrested. We’re watching a major political party backslide in real time from fair representation, the rule of law, and democracy itself,” said Dallas State Rep. Jasmine Crockett, one of the plaintiffs in the case.

Enrique Marquez, a Phelan spokesman, said Monday morning the speaker’s office had not yet been notified of the suit or restraining order. Abbott’s office did not immediately respond to a request for comment.

The lawsuit was filed on behalf of 19 House Democrats by attorneys Samuel E. Bassett, Jeremy Monthy and Megan Rue.

“No matter what the Governor or Speaker have said, it is a fundamental principle in this country that no one has the power to arrest their political opponents. That is why this action had to be filed,” Bassett said in a statement.

The plaintiffs are Reps. Gina Hinojosa, Alma Allen, Michelle Beckley, Jasmine Crockett, Joe Deshotel, Barbara Gervin-Hawkins, Vikki Goodwin, Celia Israel, Ray Lopez, Armando “Mando” Martinez, Trey Martinez Fischer, Ina Minjarez, Christina Morales, Mary Ann Perez, Ana-Maria Ramos, Richard Peña Raymond, Ron Reynolds, Eddie Rodriguez and Ramon Romero, Jr. All of the plaintiffs broke quorum and left the state in July.

It is the second lawsuit filed by House Democrats in an attempt to avoid arrest if they returned to Texas. The other was filed Friday by attorney Craig Washington in federal court in Austin on behalf of 22 House Democrats. It was riddled with problems, including subsequent statements by at least four of the plaintiffs that they had not authorized the suit on their behalf.

The lawsuit in federal court also named State Rep. James White, R-Hilister, as a defendant. White is not named as a defendant in the case in state court.

In his order, Urrutia said Abbott and Phelan erroneously interpreted Texas law and legislative rules to allow the apprehension of members of the House in response to a call for quorum. He barred the defendants from detaining or restraining the Democrats’ movement in any way and from issuing warrants or other documents ordering their apprehension. Urrutia also barred the defendants from ordering law enforcement to arrest the lawmakers.

A copy of this lawsuit is 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, and it has bought the Dems some time. Whether they choose to remain out of the Capitol during this time or not remains to be seen, but at least now they have the option. KXAN, the Current, and the Chron have more.

UPDATE: Though more Dems did show up yesterday, the Lege still fell short of a quorum. Tune in again today at 4 PM to see the next episode.

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4 Responses to You can’t arrest the quorum-busters, at least not yet

  1. Jason Hochman says:

    Now they are eligible to be arrested. The temporary injunction was vacated. Lock them up, just don’t arrest my state rep, Mrs. Morales Shaw. Get the super spreaders and put them in a quarantine facility for public safety.

  2. Kibitzer Curiae says:


    It was a temporary restraining order (TRO) that barred the threatened arrests for less than 24 hours. Makes a difference because a TRO cannot be appealed. That’s why they (AG Paxton/Solicitor General) filed a mandamus case in the SCOTX instead. And the all-GOP SCOTX is more reliable — as far as getting what the Republicans want — than the flipped or mixed-composition courts of appeals. So why not go straight to the highest court?

    The plebs doesn’t even get to see what was filed, just the quashing order: In proper lingo, a stay of the TRO. And no accompanying opinion or on-docket notation for why it was granted. Granted in almost Pavlovian fashion as we also saw last in year in the pandemic election season. It’s the temporary nixing of the TRO, of course, that matters. All that matters, really. The explanation or excuse can always be furnished later, or simply dispensed with. It’s just Democrats, after all, that are bearing the consequences.

    James Barragan over at the Texas Tribune has some details about the legal arguments. It looks like they are going to go with the separation-of-powers here, namely judicial support for the Lege enforcing its own power to compel attendance of its members, but that presumably won’t work as well for Abbott as a defendant. Perhaps they’ll rule that Abbott is just helping the Lege (the Republican majority), rather than defying them. Ergo, no problem with cross-branch interference that could violate article 2. Or they might say that his involvement with arrest and cabining threats was just political rhetoric.

    And the trial court judge will likely be faulted for having interfered with the co-equal legislative brach by taking it upon himself to judicially protecting the minority party there. Which will just goes to show that the Republican SCOTX does not operate as a constraint on the abuse of power by the Republican majority in this one-party state that’s increasingly drifting toward authoritarianism.

    In re Abbott, No. 21-0667 (Tex. Aug. 10, 2021) (stay order issued)


  3. Pingback: Supreme Court tosses no-arrest order – Off the Kuff

  4. Pingback: SCOTx confirms quorum-busting Dems can be arrested – Off the Kuff

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