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The decision by 11 Democratic state senators to go AWOL to deny the Texas Senate a quorum — thus blocking consideration of congressional redistricting — raises legal questions about how far the Legislature can go to compel attendance of absent members. On July 28, shortly before Gov. Rick Perry called the Legislature into a second special session to draw new districts designed to increase the number of Texas Republicans in the U.S. House of Representatives, 11 of the 12 Democrats in the state Senate boarded two private jets that carried them to Albuquerque, N.M. Perry called a second 30-day session within a few minutes after the first special session ended without the Legislature approving new maps, but the 11 Democrats already were gone, leaving the 31-member Senate one short of the number needed for a quorum. On the same day that the Democrats fled the state, Texas First Assistant Attorney General Barry McBee advised Lt. Gov. David Dewhurst in a letter that the Senate has express constitutional authority to compel the attendance of absent members. McBee also said in the letter that the Senate sergeant-at-arms or officers appointed by the sergeant have full legal authority to arrest absent senators “wherever they may be found.” Sen. Juan Hinojosa, D-McAllen, a shareholder in Hinojosa & Powell, says the Democrats may file a suit to challenge the Senate’s authority to arrest the senators who fled and compel them to attend the special session. But Royce West, D-Dallas, a shareholder in West & Gooden, says the group has not made a decision about whether to file a suit. Austin solo Renea Hicks, a former assistant attorney general who is one of several attorneys advising the Senate Democrats, says he thinks McBee is wrong and that the state constitution doesn’t provide for arresting state legislators, forcing them into cars or planes and requiring them to return to the House or Senate. “I think that’s carrying the idea of vigilante justice into the [state] constitution, which isn’t in the constitution,” Hicks says. “I just can’t imagine this is the way the people of Texas meant for their Legislature to function, that they can go get dragoons and drag [absent lawmakers] back,” Hicks says. “I can’t believe this could be the law.” Tom Kelley, a spokesman for the Texas Office of Attorney General, declines comment on the issue and suggests that reporters look at McBee’s letter. According to the letter, Article III, � 10 of the state constitution authorizes each legislative chamber to compel the attendance of absent members to achieve a quorum. The state constitutional provision derives from Article III, � 10 of the U.S. Constitution, which confers the same authority on both houses of Congress, the letter said. The provisions in both constitutions leave it to each house to determine the “manner” of compelling attendance, McBee said in the letter. Texas Senate Rules 5.02 and 5.04 provide that less than the two-thirds required for a quorum in the Senate may send the sergeant-at arms or any other persons after absent members and authorizes the sergeant-at-arms, when so directed, to arrest the absentees wherever they’re found, according to the letter. Keith Hampton, an Austin criminal defense lawyer who also is advising the Senate Democrats, says he believes the lawmakers have the right to free political expression. “These are the representatives of the people trying to express a political view,” he says. Hampton, also a solo, says lawmakers can express themselves by voting yes or no, by requesting to be shown as present but not voting, or by not being present for a vote. The Senate Democrats want not to be present, he says. “Does the authority to compel attendance trump that? I don’t think so,” he says. Hinojosa says in a phone interview from Albuquerque that he left Austin because proposed new congressional districts would violate the federal Voting Rights Act by diluting minority votes. He alleges that under redistricting maps approved by the Senate Jurisprudence Committee on July 23, the number of minority districts would decrease from 11 to 10, and four districts in which minorities have a strong voice would be eliminated. Refuting that allegation at a July 30 news conference, Dewhurst said, “Nothing we do is going to affect in any way minority rights or any rights of any voters.” Dewhurst also told reporters, “There is no constitutional right under the Texas Constitution to break a quorum. There is no affirmative defense against showing up.” “That’s his opinion,” says Hinojosa, who contends that quorum-breaking is a time-honored way to block a vote. NO CUFFS In May, during the regular session, more than 50 Democrats in the 100-member Texas House walked out to block a vote on a redistricting bill and spent four days in exile in Ardmore, Okla. On July 29, however, the House approved H.B. 1, a redistricting bill identical to one House members passed during the first special session. The efforts made by House leaders to find and arrest the defiant Democrats who left in May are at issue in a suit filed in Travis County. Dispatched by the House sergeant-at-arms, Department of Public Safety troopers searched for the missing Democrats in Texas and followed them to Oklahoma. Visiting Judge Charles “Chuck” Campbell, a former member of the Court of Criminal Appeals, ruled on July 10 that DPS lacks legal authority to track down and arrest members of the House. Texas Government Code � 411.002 limits the role of DPS to “enforc[ing] the laws protecting the public safety and provid[ing] for the prevention and detection of crimes,” Campbell said in a letter opinion in Burnam v. Davis, et al. Rep. Lon Burnam, D-Fort Worth, one of the Democrats who traveled to Ardmore, filed the suit. In an interview, Hicks says the same principle that Campbell applied in Burnam also applies to the situation in the Senate. Hicks says that McBee’s statement in the letter to Dewhurst that the Senate sergeant-at-arms or officers appointed by the sergeant have full legal authority to arrest absent senators wherever they may be found is “pretty broad,” and “I think it’s wrong.” Dewhurst said at the news conference that the remedy provided under Senate rules is to compel attendance when a quorum is broken. “So if we find some of our senators here in Texas, we’re going to ask the sergeant-at-arms to go and ask them, instruct them to return and join us,” he said. But Dewhurst added, “You’re not going to see senators brought back in handcuffs as long as I’m lieutenant governor.” Carleton Turner, the Senate’s sergeant-at-arms, says in an interview that he would hand the order directing him to go after a senator to the senator named in the order. At that point, the senator would decide what he or she wants to do, Turner says. In a separate interview, Dewhurst says there are ways to bring back senators without using force. If a senator refuses to comply with a warrant of arrest authorized by the Senate, that would be a serious violation, Dewhurst says. “It could result, if the Senate so chose, in the expulsion of that member,” he says. Dave Beckwith, Dewhurst’s communications director, says that if a senator ignores a lawful warrant, all sorts of disciplinary actions, including expulsion, are possible. But Beckwith says there will be no expulsions of senators as far as Dewhurst is concerned.

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