Texas Supreme Court allows for arrest of Democrats who don't show up to Legislature
Members of the House Democratic Caucus attend a press conference on the opening day of the special session at the Texas Capitol on July 8, 2021. (Credit: Sophie Park/The Texas Tribune)

The Texas Supreme Court has voided a state district judge's temporary restraining order barring the arrest of Democratic lawmakers who have refused to return to the Legislature, putting in jeopardy the liberty of some Democrats who have returned to the state.

The all Republican high court's order comes at the request of Gov. Greg Abbott and House Speaker Dade Phelan who petitioned the Texas Supreme Court on Monday to overturn a ruling by a Travis County state district judge that blocked them from ordering the arrest of Democratic lawmakers.

The news, first reported by the Austin American-Statesman, comes after Judge Brad Urrutia, a Democrat in the 450th District Court in Travis, signed a temporary restraining order barring state officials from arresting the quorum-busting Democrats, who were in Washington, D.C. for about a month. Urrutia's order opened the door for those Democrats to return to Texas without the threat of arrest. Abbott and Phelan have asked the state's highest court to void Urrutia's order.

The Democrats had left the state to block the passage of a Republican elections bill they say would restrict voting rights in the state. They successfully blocked its passage during a 30-day specially called session that ended on Friday, but Abbott immediately called for a second special session which began on Saturday. Though some House Democrats have returned, many have stayed away from the capitol and have blocked the chamber from reaching a quorum to conduct its business.

In the first special session, Republican lawmakers voted for a call of the House, a procedural move that allowed them to authorize law enforcement to arrest members who were not present, however it had no teeth since Texas law enforcement has no jurisdiction outside the state. On Monday, the House which is still a few members shy of a quorum, issued the call of the House for a second time. But this time the call only called for the doors of the chamber to be locked and did not address arresting members, likely because of the temporary restraining order blocking such arrests.

Without the Supreme Court's intervention, Abbott and Phelan have no assurance whether the temporary restraining order will be lifted and such orders are not appealable. The first scheduled hearing in the case is on Aug. 20 when Urrutia will 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.

Because of that, the state asked the court to grant an order blocking Urrutia's restraining order no later than 5 p.m. on Tuesday. Without such relief, Stone argued, the state would be harmed by Urrutia's order.

"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 the 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.

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

In a response, lawyers for the House Democrats who received the temporary restraining order said the state is seeking an order that will free them to "to forcibly arrest political opponents who have committed no crime."

Unlike other states, whose rules only requires a majority to reach quorum, Texas requires a two-thirds super-majority "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 that 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.