Texas Attorney General Ken Paxton filed suit Aug. 7 in an attempt to force Illinois law enforcement to arrest 33 Texas House Democrats who left the state to protest a redistricting effort.
What you need to know
House Speaker Dustin Burrows issued civil arrest warrants for dozens of absent Democrats Aug. 4 after the chamber did not achieve a 100-member quorum, which is the minimum number of members that must be present to vote on legislation.
The warrants directed the House sergeant at arms and state troopers to track members down and bring them to the chamber. The Texas Department of Public Safety has jurisdiction within state lines, according to its website.
Paxton’s lawsuit asks Illinois’ Eighth Judicial Circuit Court to issue an emergency order finding the Democrats “in contempt” for “unlawfully seeking to evade Texas’ duly issued quorum warrants.” The court is located in rural Adams County, about four hours southwest of where Texas lawmakers have been staying in suburban Chicago.
If an order is issued, Illinois law enforcement would be required to arrest the Democrats and return them to Texas, according to the lawsuit. Some Democrats also traveled to New York and Massachusetts, although Paxton did not file in those states Aug. 7.
“The Texas Representatives named herein hope the state of Illinois will provide safe harbor for their political actions and shield them from legal process,” Paxton wrote in the filing. “The United States Constitution, federal statute and the doctrine of comity between states demand otherwise.”
According to the Legal Information Institute at Cornell Law School, “comity” means that state courts should respect the laws or judicial rulings of other states—“not as a matter of obligation but out of deference and mutual respect.”
Paxton cited an Aug. 5 statement from Illinois Attorney General Kwame Raoul, who said at the time that “the rule of law matters” and Texas’ civil warrants “carry no weight in Illinois.” Paxton said that he seeks “enforcement of the rule of law in Illinois.”
“Once again, the attorney general and now the speaker of the Texas House are using the justice system to hunt down their political opponents,” Rep. John Bucy, an Austin Democrat named in the lawsuit, said in an Aug. 7 statement. “If defending democracy is a crime, I’m proud to be an outlaw.”
Earlier on Aug. 7, U.S. Sen. John Cornyn, R-Texas, announced that the Federal Bureau of Investigation would assist Texas law enforcement in locating quorum-breaking Democrats, although he did not share specifics about the FBI’s involvement.
What’s next
The House is scheduled to reconvene at 1 p.m. Aug. 8, which Burrows previously said would give state troopers “some time to work” on arresting the absent Democrats.
“If quorum has been made, we will proceed with the very important business of this state,” Burrows said Aug. 5.
Paxton said Aug. 5 that House lawmakers who do not return to the chamber Aug. 8 will have abandoned their offices, allowing the attorney general’s office to pursue court rulings declaring their seats vacant.
Paxton acknowledged on an Aug. 4 podcast that attempting to vacate Democrats’ seats would not be “an immediate answer.”
“We’d have to go through the court process, and we’d have to file that maybe in districts that are not friendly to Republicans,” he told conservative podcast host Benny Johnson. “It’s a challenge because every district would be different. We’d have to go sue in every legislator’s home district to try to execute on that.”
Paxton wrote in the Aug. 7 lawsuit that Texas faces “immediate and irreparable harm” if House Democrats do not return to the state, noting that the legislature cannot pass bills aimed at helping communities recover from the deadly Central Texas floods in their absence. Lawmakers held public hearings on flood-related legislation Aug. 5 and 8, although those hearings were announced after Democrats left the state.
Gov. Greg Abbott, meanwhile, sued House Democratic Caucus Chair Rep. Gene Wu, D-Houston, on Aug. 5, asking the Texas Supreme Court to remove him from office for “deliberately [fleeing] the state to abandon his official duties indefinitely.” The court did not immediately issue a ruling, instead asking Wu to file an official response to the governor’s lawsuit by 5 p.m. Aug. 8.
The context
Quinn Yeargain, a Michigan State University law professor who specializes in states’ constitutional law, said Abbott’s petition to vacate Wu’s seat is “extremely unusual [and] unprecedented.”
“They are making a series of arguments that, to my knowledge, have never been made before,” Yeargain told Community Impact in an Aug. 7 interview.
Abbott’s filing does not cite examples of a member of the executive branch expelling a state legislator from office, noting that “there are no prior proceedings in lower courts.”
Yeargain said Abbott’s office would have to prove that Wu “is not entitled to hold office.”
“If the argument is that they have fled the state to prevent quorum, then that reflects an actual intent to continue using their powers,” Yeargain said. “They don’t want to relinquish their office—that wouldn’t make sense for them to do in this context.”
House Democrats left the state Aug. 3 to halt a planned vote on the congressional redistricting proposal, which was set for Aug. 4. Abbott filed suit against Wu on Aug. 5.
In a statement responding to the lawsuit, Wu said leaving the state “was not an abandonment of my office; it was a fulfillment of my oath.”
As Democrats headed out of state Aug. 3, Wu declared that “this corrupt special session is over” and said he and his colleagues were prepared to remain away from Texas through the 30-day special legislative session, which ends Aug. 19.
Abbott argued that because Wu “deliberately fled the state to abandon his official duties indefinitely,” he abandoned his office and his seat should be vacated.
In a nonbinding 2021 opinion, issued after Texas Democrats broke quorum to fight an election bill, Paxton cited an 1873 abandonment of office case, in which a Texas court found that “the failure to perform the duties pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office.”
Yeargain said that “there’s nothing in the [Texas] Constitution that demands, or even requires” that a lawmaker’s office be vacated after they break quorum. In 2021, Chief Supreme Court Justice Jimmy Blacklock wrote that the Texas Constitution allows lawmakers to break quorum and also “gives the House of Representatives the authority to physically compel the attendance of absent members.” The opinion does not address abandonment of office.
One more thing
Meanwhile, the Texas Senate is set to vote on the congressional redistricting plan in the coming days, after it was approved by a Senate committee Aug. 7. Dozens of Texans told the committee they were concerned the proposed map would break up communities and “dilute” minorities’ voting power. Texas Republicans have said that race was not a factor when drawing the proposed map, which is designed to “elect more Republicans to the U.S. Congress.”
“All the testimony that’s been suggesting that this map was drawn on a racial basis is inaccurate and incorrect,” Senate redistricting chair Sen. Phil King, R-Weatherford, said Aug. 7. “So I’m disregarding that part of the testimony, because I didn’t take race into account, and I don’t see race in this map.”