AUSTIN – Whether the Democrats who fled the Texas Legislature last month vacated their office is a question for the courts and not the Office of the Attorney General, according to the state’s chief lawyer.
Attorney General Ken Paxton issued an opinion today finding that making such a determination is beyond his office’s scope and up to a district court through a quo warranto action (a special action used to challenge a person’s right to hold a public office).
On July 27, Rep. James White (HD-19) submitted an opinion request to the OAG, asking if any legislator, federal or state, has a constitutional right to break quorum.
The request stems from the First Called Session of the 87th Legislature. On July 12, numerous legislators left state, depriving the Texas House of a quorum. A Second Called Session is currently underway.
“The only response to this darkness that grips our political culture at this moment is our U.S. Constitution, our Texas Constitution, the history, thoughts, and writings of our Framers,” White wrote. “Our State has too many acute challenges that demand our attention. I pray that we do not lean to our own understanding and instead rely of that wisdom that is tried and proven.”
From the time of White’s request, litigation in multiple courts has arisen involving the constitutional rights of legislators who attempt to avoid a quorum. The
Texas Supreme Court recently concluded that the Texas Constitution “empowers the House to compel the attendance of absent members.”
“Texas courts recognize that a vacancy may occur by abandonment of office,” Paxton wrote. “Whether a specific legislator abandoned his or her office such that a vacancy occurred will be a fact question for a court and is beyond the scope of an Attorney General opinion.
“Through a quo warranto action, a district court may determine that a legislator has forfeited his or her office due to abandonment and can remove the legislator from office, thereby creating a vacancy.”
Opinion No. KP-0382