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Texas Supreme Court Says Republicans Can Order Arrests of Democrats Who Fled the State to Stop Conservative Agenda

Texas Gov. Greg Abbott speaks during a border security briefing on July 10, 2021, in Austin.

Texas Gov. Greg Abbott speaks during a border security briefing on July 10, 2021, in Austin.

The Texas Supreme Court on Tuesday issued a terse order which functionally allows state officials to arrest a panel of Democrats who fled the state. The Democrats in question extricated themselves from Lone Star State environs in an attempt to shut down the legislative process. Without the Democrats’ presence for a special legislative session, it was impossible for Republicans to form the quorum necessary under state law to pass legislation the Republicans championed but with which the Democrats disagreed.

“[R]elators’ emergency motion for temporary relief granted,” the court’s brief order states. “[S]tay order issued. [R]esponse requested due by 4:00 p.m., August 12, 2021.”

The underlying case, styled as Hinojosa v. Abbott, was filed by a collection of 19 Democrats against Gov. Greg Abbott (R), House Speaker Dade Phelan (R), and the state itself in Travis County. In a three-page opinion, Judge Brad Urrutia (D) on Sunday night ordered that the Republican defendants “erroneously interpreted Texas law and legislative rules to permit the detention, confinement, or other restriction of the members of the Texas House of Representatives with the State of Texas in response to a call for a quorum.”

The order complains that the plaintiff Democrats would “suffer imminent and irreparable harm by either the loss of liberty or the loss of real and personal property, personal, professional, and political relationships with family, friends, staff, and constituents, and mental anguish of being separated from home” if the Republican defendants were allowed to force them to form a quorum. The order prevented the defendants from “[d]etaining, confining, or otherwise restricting a Texas House Democrat’s movement without his or her consent so as to interfere substantially with his or her liberty within the State of Texas.” It also banned the defendants from “[i]ssuing any warrants or other instruments commanding the detention” or “confinement” of the plaintiff Democrats. It further banned the defendants from asking the sergeant-at-arms of the state House of Representatives, the Department of Public Safety, the Texas Rangers, the Texas Highway Patrol, the Capitol Police, or “other law enforcement officials” from detaining any member of the House “under the alleged authority of Article III, Section 10 of the Texas Constitution,” House Rule 5, Section 8, or under a “Call to the House passed on or after July 13, 2021.”

The defendants — Gov. Abbott, et al. — say the temporary restraining order illegally bans them from performing duties outlined by the state constitution and the other concomitant rules and acts listed above. They took the case to the state’s highest civil court after arguing that Urrutia’s plan to hold a hearing on the case on Aug. 20 would be too late for a session of the legislature scheduled to end no later than Sept. 5, the Austin American-Statesman reported.

The Democrats absconded — many to Washington, D.C. — to prevent the legislature from moving forward on votes they say would result in limits on voting rights. Some of those who fled have begun to trickle back into the state, the American-Statesman noted.

Abbott has characterized his agenda for the legislation session as involving “election integrity,” “bail reform,” border enforcement, and “legislation preventing students from playing on sports teams of a different sex than they were assigned at birth,” CNN reported.

“Legislators who fail to show up to work to fulfill their constitutional duties may be arrested, brought to the Capitol, and compelled to carry out their constitutionally assigned duty to participate in the legislative process,” the Republicans said in their petition before the judiciary.

“Compelling the attendance of its members is a prerogative given to the House by the Texas Constitution,” they continued, per CNN.

The Texas Tribune noted that all of the justices on the state supreme court are Republicans.

A spokesperson for Abbott lauded the high court’s move.

“The Supreme Court of Texas swiftly rejected this dangerous attempt by Texas Democrats to undermine our Constitution and avoid doing the job they were elected to do,” Renae Eze told the Tribune. “We look forward to the Supreme Court upholding the rule of law and stopping another stall tactic by the Texas Democrats.”

Various Democrats, however, blasted the move.

“It is no surprise that Republican Governor Greg Abbott and House Speaker Dade Phelan want to arrest their political opponents,” Reps. Trey Martinez Fischer (D-San Antonio), Gina Hinojosa (D-Austin), and Jasmine Crockett (D-Dallas) said in a joint statement reported by the Tribune and by CNN. “Thankfully, this is still the United States of America. We will defend the freedom to vote, and we look forward to our temporary injunction hearing on August 20th.”

Another Democrat who said she was back in Austin was more blunt.

“There’s no way in hell I’m going to that House floor while I’ve got the protection of a judge’s order,” State Rep. Celia Israel (D-Austin), told the Tribune before the Supreme Court scuttled the legal cloak she desired to obtain.

Texas requires a supermajority of legislators to establish a quorum, the Democrats have pointed out in various court filings.

The Dallas News and the American-Statesman both reported later Tuesday that the Texas House of Representatives voted 80-12 to arrest those Democrats who refused to report to the statehouse so that the legislative session could commence as called.

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.