Abbott’s bid to expel the House Democratic leader goes to a court filled with his appointees

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Texas Democrats had been out of state for less than 48 hours when Gov. Greg Abbott moved to have their seats declared vacant.

The emergency legal filing represents an unprecedented escalation of Abbott’s effort to pass a new congressional map that adds additional GOP seats, as demanded by President Donald Trump. It flies in the face of Texas’ own founding documents, centuries of legal precedent and a recent Supreme Court of Texas ruling, legal experts say.

Even Attorney General Ken Paxton, a fellow Republican, threw cold water on Abbott’s strategy, filing his own brief saying that while he “appreciates the Governor’s passion,” he does not have the authority to bring this type of case.

But just because legal precedent is not on his side doesn’t mean Abbott’s case is doomed. The long-shot filing is before the all-Republican Texas Supreme Court, where Abbott has appointed six of nine justices. Chief Justice Jimmy Blacklock was Abbott’s former general counsel, as was Justice James Sullivan.

“They have their own independent authority, of course, but it does put them in a tough political position,” said Andrew Cates, an Austin-based attorney and expert on Texas ethics law. “They don’t want to be in the position of potentially biting the hand that initially fed them.”

Abbott’s petition specifically targets Rep. Gene Wu, the House Democratic leader, serving as a test case that could eventually allow him to remove every member who left the state. Abbott asked the court to rule by Thursday; the justices gave Wu until the end of the day Friday to respond.

It is hard to argue that leaving the state to deny the Legislature a quorum is equivalent to abandoning an office, legal experts say. Texas’ constitution sets an intentionally high threshold for quorum — two-thirds of the chamber, compared to half in most other states — in an effort to limit the majority’s complete authority. And centuries of quorum breaks, both in Texas and other states, have resulted in expulsion only once, during the colonial era, when members of the New Jersey assembly, upon regaining quorum, voted to remove their peers who stayed away.

“The law allows for consequences, like arrests and fines, to entice the members back,” said Charles “Rocky” Rhodes, a constitutional law expert at the University of Missouri law school. “If they wanted to say you lose your office, they could have put that in there, but they didn’t.”

Dereliction or duty?

Dozens of Democrats left the state Sunday afternoon, heading for Illinois, New York and Massachusetts, announcing their intent to deny the House the quorum it needs to pass legislation. A total of 57 Democrats were absent when the House gaveled in the next day, leaving the chamber shy of the 100-member threshold.

“We’re not walking out on our responsibilities; we’re walking out on a rigged system that refuses to listen to the people we represent,” Wu said in a statement as the Democrats prepared to depart. “As of today, this corrupt special session is over.”

There have been just 15 legislative walkouts nationwide since 1924, almost all in the four states that require the presence of two-thirds of legislators to conduct business, according to Ballotpedia.

Texas is one of these high-threshold states. A two-thirds quorum has been required by the Texas Constitution since 1845, an uncontroversial proposal for a people who have “long been suspicious of their government and desirous of limiting its powers,” said Texas constitutional historian Bill Chriss.

The framers of the Texas Constitution imagined that there might come a day when members declined to attend in protest, writing that legislators were empowered to “compel the attendance of absent members, in such manner and under such penalties as each House may provide.”

Democrats most recently decamped in 2021 to stop a GOP voting bill, nearly two decades after fleeing to block a similar mid-decade redistricting effort. In both cases, Republicans issued arrest warrants and sent state troopers to look for the missing lawmakers, although since they had left the state, these measures had little effect.

In 2021, when Democrats sued to challenge the arrest warrants, Blacklock authored an opinion affirming that the Texas Constitution explicitly “enables ‘quorum-breaking’ by a minority faction of the Legislature.”

The constitution also allows “quorum-forcing,” Blacklock said, adding that each chamber could decide for itself how to entice members back to work. The next session, the House voted to add a $500-a-day fine for unexcused absences.

Nowhere in that argument does it say that a quorum break constitutes the abandonment of office needed to remove them from their post, Rhodes said. But that’s exactly what the governor argued in his petition.

“Longstanding precedent recognizes that deliberate abandonment of office constitutes a forfeiture of that office,” Abbott wrote in the filing. “Indefinite removal to another state for purposes of avoiding the constitutional requirement that [legislators] ‘shall meet’ likewise vacates the office.”

For a legislator to have abandoned their office, they must have failed to perform their duties and expressed their intent to abandon the position. In the filing, Abbott said the court can infer from Wu’s conduct that he intended to relinquish his office.

“Wu has expressed his intention to abandon the office three times over — with no end in sight — by openly acknowledging his abandonment of his official duties, accepting compensation and other benefits to abandon those duties, and fleeing the sovereign territory he purports to represent,” Abbott wrote.

Jim Dunnam, a Waco attorney and former state lawmaker, said that was an outlandish interpretation of the law. Dunnam led the Democrats on their 2003 quorum break; Republicans called them chickens and sent the state troopers after them, but there was never any talk about declaring their seats vacant, he said.

“If the Supreme Court is going to follow the law, there’s no problem here, because these people have not abandoned their office,” Dunnam said. “They’re doing exactly what they were elected to do.”

Abbott, a former Texas Supreme Court justice and attorney general, should know that this argument stretches the law beyond the breaking point, Dunnam said.

“I would say this whole thing is a joke, but for the pressure we’ve seen that Trump has been able to exercise across the nation, and certainly among Texas Republicans,” he said.

On whose authority?

As the head of the executive branch, Abbott’s ability to remove a duly elected state representative is limited by the state Constitution’s separation of powers clause.

So he’s trying a unique legal mechanism, called a quo warranto petition, that allows state officials to try to oust an officeholder who has abandoned their office.

One part of state law says this type of action must be filed in district court by the attorney general or a county or district attorney. Paxton alluded to this as a potential roadblock to removing quorum-breakers, telling conservative podcaster Benny Johnson that they’d have to file individual lawsuits in each member’s district, many of which are in counties where Democrats dominate the bench.

“We'd have to go through a court process, and we'd have to file that maybe in districts that are not friendly to Republicans,” Paxton said. “So it's a challenge because every district would be different.”

But in Abbott’s filing, he argues that a different statute allows him to file a quo warranto petition directly to the Texas Supreme Court, sidestepping the attorney general and the district courts. In a recent unrelated ruling, the high court said it had reviewed direct quo warranto petitions “on only a few occasions, always denying the writ when we have done so.”

Paxton weighed in Tuesday, sending a letter to the court saying only his office or a local prosecutor can bring this type of legal action. He has vowed to do so if the Democrats do not return to the chamber by Friday.

Abbott countered, saying he was bringing his petition under a different authority than Paxton’s and asking the court to rule before Friday. The justices have not yet weighed in on the petition or the infighting.

The nuances of the quo warranto petition may provide the justices with a procedural off-ramp, allowing them to dismiss the challenge on these technical grounds without getting into the more politically charged merits of the case, Cates said.

“But I don’t think we’ve ever had such exigent circumstances where the governor is the one that is asking, and there’s a ticking clock, a special session, congressional maps and all that,” he said. “So there’s maybe a first time for everything.”

If the Texas Supreme Court were to find that these members have abandoned their offices, Abbott would have to call a special election to fill the seats. They are likely to be replaced by similarly aligned candidates, considering the political makeup of those districts, which Abbott knows, Cates said.

“I think this is going to be a long, drawn-out court fight, and I think every side knows it,” Cates said. “My guess is that this is more about a scare tactic to try and win a war of attrition to bring back scared members that were on the fence, and try to trickle their way into quorum.”

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