Last week, Democrats in the Texas House ran away from the state, preventing the House from having a quorum and preventing Congress from laying gerrymanders in state legislative districts, where it is likely to create five new Republican seats.
In response, Gov. Greg Abbott (R) filed a lawsuit last Tuesday in the Texas Supreme Court, asking the judicial officer to declare that state legislator Jean Wu (D) “waived” his seat and was about to open Wu’s seat. That Friday, Texas Attorney General Ken Paxton (R) filed his own lawsuit in sought the court to expel 13 Democrats who left the state. (Paxton said in a letter to the court on Tuesday that Texas Constitution and state court precedents allow the Attorney General to file lawsuits, not just the governor.)
The lack of legal support for these cases is surprising. There are serious questions about not only their claims that lawmakers themselves contradicted the office, but also whether the Texas Supreme Court can hear these cases at all. On both merit and jurisdiction issues, Abbott and Paxton rely on paradoxical and unfounded arguments that fall apart with a small amount of testing.
The lawmakers did not abandon his office.
The waiver, as a Texas court noted, “requires that it failed to fulfill its obligations related to the office. Paxton parrots this standard in his submission, but is unable to show how he came across it here.
To be clear, abandonment can certainly lead to vacancy, but the call has historically been in a much more colorful situation. Like where the state’s fund manager embezzled the funds and then fled the state.
It’s ridiculous to suggest that a democratic lawmaker intends to abandon his office. Instead, they deliberately use the power of their offices to “protect the representatives of their members.” In doing so, it suggests that the intention to abandon their office was pointless.
It is unknown that there is a precedent in any state due to the arguments being made by Abbott and Paxton, and they have not cited anything. Paxton, for example, relies on a paper on 19th century civil servants, which has established a broad proposition that abandonment can cause vacancy. However, this paper involves deliberately distinguishing between cases involving “temporary” refusals, including “temporary” refusals that Paxton has not established – and “ensures that (office holder) presumes that it is unwanted or unintended to the office duties.”
Paxton also pointed to the proposal of the paper that office holders are “bound and refuse to attend on request,” which could be perceived as a legal cause of abandonment. The context reveals that the paper’s reference to officers “bound to attend on request” is about local officials responsible for the administration of justice. And anyway, citing a case from 500 years ago decided before the glorious revolution – it established the Anglo-American concept of separation of power – instead of – Any The lawsuit, decided by state courts since 1776, betrays the persuasive authority’s inability to use.
Abbott likewise does not clarify the material discussion. Like Paxton, he has a cycle and unsupported argument that leaving the state without fulfilling his duties and without a clear plan is a waiver. Abbott argues that the constitutional work of a state legislator appears in the state legislature and votes, and lawmakers who do not do so have abandoned their office. He does not cite case law for this argument.
Taking the quorum by leaving is a common practice dating back to the 19th century. Texas Tribune It was recently laid out. Abbott makes no effort to explain why this situation differs from many examples of quorum block over the past two centuries.
Abbott has two additional arguments that Paxton is not. First, he suggests that by “leaving the state indefinitely,” Wu effectively “removing” himself from the state and ceased to become a resident. The fact certainly does not support such a strange claim. Again, Abbott has not cited the law on this proposition.
Abbott’s final futile claim is that the WU will win bribery and could be prosecuted under state law. He points to provisions in the Texas Constitution that disqualify state legislators who have been bribed. He argues Wu has “realistically embraced” “something worthwhile”, including expensive trips on private jets. This promotes withholding of votes from Texas homes by enforcing his out-of-state absence,” and “he did it all in exchange for not fulfilling the most basic duties placed on him.
Abbott’s characterization of facts is only thinly supported, and he does not cite case law that supports his claim that if these allegations are true, it amounts to bribery. The sources he cites — the state constitution and the criminal laws of Texas — undermine his arguments. The Constitution requires that the WU have to have “solication (ed), demand (ed)” or consent (ed) in order to receive “valuable” “to withhold the vote or official influence, or the same.” Similarly, the Texas Criminal Code requires office holders to accept “interests as considerations for recipient decisions.”
Clearly, Abbott’s argument is that WU has agreed to withhold his vote in exchange for a plane trip to a place where he can withhold his vote, but the first part of his brief argues that Wu intentionally withheld his vote in order to deny quorum. To say he did it for the trip. . . He continued it so he allowed quorum to be denied. . . It’s paradoxical.
Neither Paxton nor Abbott present historical analogues or points of comparison, cite them in relevant case law, or present meaningful prior discussions.
Representative Jean Wu’s response to the lawsuit points out that Abbott’s allegations have not been proven and does not support the conclusion that he “waived” his office. Wu argues that Abbott has not presented evidence that Wu or other Democrats had a clear intention to abandon their office, as required by Texas case law. He argues that he is to “practice the forces given his office by the Texas Constitution,” and supports his oath to federal and state constitutions by “movement (independence) judgment” regarding the legality of the proposed map.
The Texas Supreme Court should not hear these cases
As if the lawsuit wasn’t bad enough about merit, they should also fail procedurally. There are multiple reasons why the Texas Supreme Court shouldn’t hear them at all.
Usually, cases are filed in court. However, most state Supreme Courts have exceptions to the usual practices in special cases. The Texas Constitution grants the state Supreme Court the authority to “issues warrants for Quo Warranto and Mandamus if they may be designated” by Congress. warrant It is basically a Latin phrase that means “by what authority” and is used to question the legal basis that office holders have in their offices.
The Texas Legislature granted the Supreme Court the authority to issue a “quarter warrant” to “officials of state government except the governor.”
Abbott’s brief argues the law “authors of Texas representatives are “a state government official,” and therefore empower the court to hear the case he has filed.
But Abbott has ignored the fact that for more than a century the interpretation of the state Supreme Court’s “state officials” directly contradicts what he argues here. As the court explained in the 1999 case, re nolo press/folk law: “We interpreted this phrase as introducing it to all state officials at all levels, but only the chief administrative officers are the heads of state departments and agencies accused of the State Department of General Administration.”
In other words, I’m not a state legislator. Abbott has not mentioned anything in opposition.
It also realizes that this is an unusual call warrant. As Wu argues and Paxton agrees, Abbott, as governor, has no right to file this lawsuit under Texas law. Furthermore, as explained in the same 19th century paper on which Paxton relies, courts do not generally allow Quo Warranto warrants where “other remedies” are available, as when the state constitution or law creates a specific process for doing so.
In Texas, like most states, there is another process for removing state legislators from their offices. The state constitution delegates the power to “determine its own qualifications and elections” to each meeting room of the state legislature, separately, and to “punish” members for fraudulent conduct. As a result, there is a strong argument that the case is inappropriate and that the courts do not have jurisdiction to issue warrants. warrant.
Finally, since state constitutions usually delegate powers to the legislative disputes to the legislative itself, courts generally resist intervening in issues related to alleged legislative misconduct. As a result, it would not be surprising if the Texas Supreme Court ruled that the case presented an unfair political issue and refused to hear the case.
Lessons from Oregon
The Texas Constitution does not include provisions other than allowing Congress to require a quorum to do business and allow state legislatures that support the Abbott and Paxton argument in this situation to try to force absentee lawmakers to attend. They can amend the Constitution if they wish to prevent Texans from blocking the quorum and constructing a waiver, or submit other consequences to such actions by lawmakers.
This idea is not unprecedented. Following several legislative sessions in 2022 in which Republican Senators in Oregon intentionally deny the quorum, voters ratified constitutional amendments that would stop legislators from seeking reelection after winning more than 10 unstoppable absenteeism. The Oregon Supreme Court last year applied the provisions to absentees of legislators and boycotted the six-week legislative meeting in 2023 to stall bills relating to abortion access, transgender rights and gun restrictions.
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This week, the Texas Supreme Court merged the Abbott and Paxton cases and set a schedule that will close the briefing by September 4th. In other words, we will not pass a ruling on this issue until the earliest time in September.
Despite the weaknesses of Abbott and Paxton’s argument, we do not predict how the court will control. We live in an unprecedented time.
Quinn Yeargain is an associate professor of law at Michigan State University’s Faculty of Law and a professor of democratic law in 1855. Some of this article has been published previously in their subsacks, Guaranteed Republic.
Suggested Citation: Quinn Yeargain, Weak lawsuits to expel Texas Democratssᴛᴀᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (August 13, 2025), https://statecourtreport.org/our-work/analysis-opinion/weak-lawsuits-expel-texass-democratic-lawmakers
