Dozens of Texas Democrats are being threatened with daily fines, felony fraud charges and arrest for leaving the state to block redistricting.
On Monday afternoon, only six of the 62 Democrats in the Texas House showed up for work. In doing so, they denied the GOP-dominated chamber the minimum necessary attendance needed to convene.
Called a “quorum break,” it’s one of the few tactics the minority political party has to bring work in this wing of the Capitol to a halt. Without enough people, the House will have to pause its work until the two-third quorum is reached.
Now, the absent Democrats face a slew of potential penalties.
The most immediate threat is arrest. After the House gaveled in Monday afternoon, only to be caught without a quorum, it voted to issue civil arrest warrants for the missing Democrats. State troopers will be dispatched to bring in those members who are still in Texas, a move common after quorum breaks.
In a statement, Texas Attorney General Ken Paxton supported the arrests.
“I am prepared to do everything in my power to hold them accountable because these liberal lawmakers are not above the law. It’s imperative that they be swiftly arrested, punished, and face the full force of the law for turning their backs on the people of Texas,” he said.
The Democrats who left will also likely face daily fines of $500 put into the House rules after 2021, the last time Democrats broke quorum. These updated rules also say lawmakers cannot pay for these fines using campaign contributions.
Gov. Greg Abbott said any Democrat who uses such donations to cover the fines should be charged with bribery. In a statement Sunday night, he said the absent lawmakers have forfeited their seats — and that he should be able to replace them.
“Democrats hatched a deliberate plan not to show up for work, for the specific purpose of abdicating the duties of their office and thwarting the chamber’s business. That amounts to an abandonment or forfeiture of an elected state office,” Abbott wrote.
For any Democrats who did not return Monday, Abbott will invoke an attorney general’s opinion he said will allow him “to swiftly fill vacancies.”
But ethics and legal experts question whether he will get his way. They argue Abbott cannot follow through on any of these consequences on his own. Instead, they said he would have to convince prosecutors and judges to do so.
“If the governor is going to follow through on some of these threats, he’s going to need the help from the other institutions in Texas,” Brandon Rottinghaus, a political scientist at the University of Houston, said. “And that is not something that is guaranteed.”
Ethics experts said the attorney general opinion that Abbott mentioned does not actually say he can replace lawmakers. It simply lays out the legal steps he would have to take, through the courts, to seek a removal, they explained.
Andrew Cates, who wrote a book about Texas ethics rules, said nowhere in state law does it explicitly say that being absent means lawmakers forfeit their elected office. Ultimately, Cates said, the courts would have to get involved to remove someone.
“Effectively, the end result of the opinion is, it’s got to go to a judge,” he said.
Rottinghaus agreed with Cates.
“The governor does not have unilateral power to remove people from office or vacate the seats,” Rottinghaus said, adding that he expects many judges would not want to have to decide whether to overturn an election by taking away an elected member’s seat. “The courts don’t want to get involved unless they absolutely have to.”
The ethics experts also doubted whether Democrats could be successfully prosecuted for bribery if they broke this rule.
Jim Clancy, the former head of the state ethics agency, said Democrats accepting money for absconding is no different than the governor supporting so-called school vouchers while taking $6 million from a man who supported public funding for private schools.
“I don’t know what the heck he’s talking about,” Clancy said of Abbott.
Cates said it would be “very, very unlikely” for a bribery charge to stick. The bribery statute centers on proving intent — in other words, there has to be a clear quid pro quo. Rottinghaus said Abbott would need to find an “aggressive” local prosecutor to enforce “a pretty muscular read of the bribery statute.”
But Rep. Mitch Little, a Lewisville Republican and lawyer, said the bribery law is clear cut — and he thinks the Democrats have violated it.
“If you agree to accept a benefit in exchange for violation of a duty, I think the statute is very simple,” he said.
After the civil arrest warrants were issued Monday, House Speaker Dustin Burrows held a press conference and said the fines will begin accruing immediately. He did not definitively say whether the Democrats who had fled had abdicated their offices.
“You have asked me a legal question. As a lawyer, I try not to give legal answers without actually studying and knowing all of the facts in the law. What I can tell you is this, I appreciate the governor offering his full cooperation assistance in that of the [Texas Department of Public Safety] to help us do what we can do to establish quorum and basically fulfill our constitutional obligation of showing up and addressing the issues on the call,” he said.
Cates said a lot of these penalties have been untested: “It’s pretty novel. It’s pretty new, we’ve never seen it escalate this far.”
After Abbott issued his threats, the Texas House Democratic Caucus issued a terse response: “Come and take it.”
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