Can Texas Democrats Really Be Arrested for Breaking Quorum?

ANALYSIS

The Texas House of Representatives could soon get into uncharted legal territory over arrest warrants issued for missing Democrats, some of whom have returned to Texas from Washington, DC, thus putting them within reach of state law enforcement. 

Under the state constitution, the House is given vague legal authority to “compel the attendance of absent members, in such manner and under such penalties as [it] may provide.”

The House rules elaborate on that, laying out a procedure called a “call of the house,” which is basically a vote to lock the doors and prevent members from leaving without the permission of the speaker. That’s already been done, and the House is currently under such a call.

The rules add, “All absentees for whom no sufficient excuse is made may, by order of a majority of those present, be sent for and arrested, wherever they may be found, by the sergeant-at-arms or an officer appointed by the sergeant-at-arms for that purpose, and their attendance shall be secured and retained.”

“The house shall determine on what conditions they shall be discharged.” (i.e., they can be kept in custody at a place of the House’s choosing).

Of course, this is not the sort of arrest that police make when they take a criminal suspect to jail and then court. Instead, this is a civil arrest more akin to what happens during a trial when a judge issues a subpoena to compel a witness to testify.

If a subpoena is ignored, a judge can issue what’s called a writ of attachment, whereby law enforcement are dispatched to fetch a witness. Such writs are relatively rare, with just 14 issued in criminal trials in fiscal year 2020, according to the Office of Court Administration. They’re also used in child custody cases to compel a parent to appear.

‘I won’t answer the door’

To date, none of the missing Democrats have been arrested. But it’s not so far-fetched that Texas law enforcement could end up tracking down one or more. After all, Texas lawmen do track fugitives all the time. And some of the Democrats aren’t being very discreet about their whereabouts. For example, Rep. Celia Israel (D-Austin) appeared in a photo in The New York Times on Thursday, with the caption noting that she “returned to Austin on Monday.” 

In the body of the article, Israel was quoted saying that she “wouldn’t answer the door” if a trooper came to her home—letting everyone know, in other words, exactly where she was. 

“They cannot come into my house,” she said, adding that her “guard dogs,” a terrier and golden retriever, would “let me know when anybody is in the front yard.” Perhaps Israel assumes that, because this whole saga is largely political theater, she couldn’t end up getting arrested. 

Theater or not, the sergeant-at-arms, Michael Black, seems to know his part. After GOP members voted Tuesday to issue arrest warrants, Black began visiting Democrats’ offices Wednesday, asking staff about their bosses’ whereabouts, and informing them of the warrants.

On Thursday, Black deputized state troopers to help him in executing the warrants. Then on Friday, it was reported that law enforcement had visited the homes of some lawmakers.

So what happens if they actually catch one? That’s a scenario that hasn’t played out before, so there are a lot of unanswered questions, both legal and practical. How long could they be detained? Where would they be detained? How would their detention be enforced? 

Probably, any Democrat actually arrested would go unwillingly, hooting and hollering and livestreaming or tweeting the whole time. “There’s a couple of ‘em that’d go bug-eyed crazy,” said Rep. Cecil Bell (R-Magnolia), in a recent video.

Habeas Corpus

Then the Democrats’ lawyers would get involved. They might try to challenge either the conditions of detention or the legal basis of the arrest. Possible constitutional grounds for such a challenge include the Fourth Amendment, which prohibits jailing someone without charge.

A preview of that happened last week when Rep. Gene Wu of Houston obtained a writ of habeas corpus from a Harris County judge to protect him from arrest. The writ issued by Judge Chris Morton stated, “The court orders that Gene Wu shall be discharged from any attempt to compel his appearance at the Capitol or any attempt to restrain his liberty in compelling his appearance at the Capitol.”

That order was promptly stayed by the Texas Supreme Court, ensuring that the arrest warrants remain in effect for now. 

But could federal courts, which enforce the U.S. Bill of Rights, take a different view?

Not all Republicans want it to go that far. Lyle Larson of San Antonio voted against issuing arrest warrants for the House Democrats. He also criticized the ‘call of the house’ procedures, whereby lawmakers are physically locked into the House chamber and can’t leave without permission slips. He compared that to “school detention in the 1970s,” calling it “backwoods” and “medievalist.”

And Dade Phelan, the speaker, seems to be active behind the scenes trying to reach a negotiated solution to the quorum break. Already about a dozen Democrats have gone back to the House, including both progressives and more centrist Democrats. Phelan is using the threat of arrest, and the rhetoric around it, as a way of ratcheting up the pressure. In recent days the House attendance has gotten up to 95, just five short of a quorum.

The following Democrats returned to the chamber: Terry Canales (Edinburg), Harold Dutton (Houston), Mary González (Clint), Bobby Guerra (Mission), Ryan Guillen (Rio Grande City), Tracy King (Batesville), Eddie Lucio III (Brownsville), Joe Moody (El Paso), Eddie Morales Jr (Eagle Pass), James Talarico (Round Rock), John Turner (Dallas), and Art Fierro (El Paso).  

In the meantime, most Republicans are happy for this to drag on indefinitely. Governor Greg Abbott has said he’ll call special session after special session. Faced with that possibility, Democrats seem increasingly divided and lacking a clear strategy for the way forward.

On August 9, when several Democrats unexpectedly returned to the House, those remaining in Washington lashed out at them. “These Democrats on the floor today chose to participate in voter suppression,” said Rep. Ana Maria-Ramos (Richardson). “You all threw us under the bus today!” Likewise, Jasmine Crockett (Dallas) seethed at the returnees for not being “team players,” saying they were “trying to please the governor and his oppressive agenda.”

Many of those who returned to the chamber represent border districts that historically were Democrat strongholds but have grown more competitive in recent election cycles. Several had gone to Washington and returned, while others had left Austin but never the state.  

Top of mind for most lawmakers is the upcoming 2022 election. Democrats suffered setbacks in House elections in 2020, failing to gain any of the seats that they had targeted, despite Joe Biden’s victory. In 2022, there won’t be a presidential election to drive turnout. 

Now the Democrats have gotten themselves into a situation where they’re actively wanted by law enforcement and not even able to safely return to the state. Unless they can shake the taint that’s normally associated with an arrest warrant, they could face a real wipeout in 2022. Whatever the demerits of the proposed election bill that they’re boycotting, Democrats are risking a lot, reputationally and politically, to achieve their goal.