628 S.W.3d 288
Tex.2021Background
- In July 2021, a group of Texas House Democratic members left the state to prevent a two-thirds quorum in a special session seeking voting-related legislation.
- The Texas House had an internal rule (House Rule 5, §8) authorizing a majority present to "send for and arrest" absentees and "secure and retain" their attendance.
- Plaintiffs sued the Governor and the Speaker in Travis County seeking an ex parte TRO barring any arrest or detention to compel attendance; the district court granted the TRO without notice.
- Defendants (Governor and Speaker) sought emergency mandamus in the Texas Supreme Court; the Supreme Court stayed the TRO and then conditionally granted mandamus directing the district court to rescind it.
- The Texas Supreme Court held that Tex. Const. art. III, § 10 plainly authorizes each chamber to "compel the attendance of absent members" in the manner and under the penalties each House provides, including physical compulsion; it also found the district court abused its discretion by issuing an ex parte TRO without adequate showing or notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does art. III §10 authorize physical compulsion (arrest) of absent legislators? | §10 permits only persuasion/debate, not physical arrest. | §10 authorizes compelling attendance "in such manner and under such penalties as each House may provide," including arrest. | Court: §10 authorizes physical compulsion; historical practice and text support arrest to secure attendance. |
| Does art. III §14 (legislative privilege from arrest) bar enforcement of House compulsion during a quorum break? | §14 protects legislators from arrest during session and travel, so quorum-forcing arrest is barred. | §14 protects attendance during sessions/travel, not deliberate quorum-breaking absences; it does not negate §10. | Court: §14 does not shield purposeful quorum-breakers from §10 measures; it does not override the quorum-forcing power. |
| Do federal constitutional protections or arrest statutes constrain the House’s §10 power? | Federal constitutional protections (e.g., Fourth/Fifth Amendments) and arrest statutes prohibit such arrests. | Kilbourn v. Thompson and textual parallel to federal clause show Congress may imprison its members to compel attendance; federal protections do not negate express internal power over members. | Court: Federal precedent (Kilbourn) supports that similar constitutional language authorizes imprisonment/arrest of members; federal limits on arrest of private citizens do not control. |
| Was the district court’s ex parte TRO proper? | Emergency relief was necessary to prevent imminent arrest; ex parte TRO appropriate. | TRO was issued after 27 days without notice; plaintiffs failed to show immediate irreparable harm and did not attempt to notify defendants; ex parte relief was improper. | Court: TRO was an abuse of discretion—insufficient emergency showing and improper ex parte procedure; mandamus directs dissolution of the TRO. |
Key Cases Cited
- Kilbourn v. Thompson, 103 U.S. 168 (supports that a legislature may imprison its own members to compel attendance)
- Sears v. Bayoud, 786 S.W.2d 248 (Tex. 1990) (interpret state constitutional text by its plain meaning as understood at ratification)
- Willis v. Owen, 43 Tex. 41 (Tex. 1875) (long-settled legislative practice informs constitutional interpretation)
- The Pocket Veto Case, 279 U.S. 655 (long practice is significant in construing constitutional provisions)
- In re Turner, 558 S.W.3d 796 (Tex. App.—Houston [14th Dist.] 2018) (probable-right-to-relief standard for TROs)
- In re AutoNation, Inc., 228 S.W.3d 663 (Tex. 2007) (mandamus standard: clear abuse and no adequate appellate remedy)
- Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911 (Tex. 2020) (may resolve merits when jurisdictional issues need not be addressed first)
- Davis v. Burnham, 137 S.W.3d 325 (Tex. App.—Austin 2004) (reversal of injunction where hearing on arrest legality was cursory)