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Without comment, the Texas Supreme Court denied a petition for writ of mandamus sought by Republican state officials in an effort to force 11 Democratic state senators who fled to Albuquerque, N.M., back to the Senate to work on congressional redistricting. “The gambit obviously was not soundly based in law,” says Renea Hicks, an Austin solo and former assistant attorney general who is one of several attorneys representing the runaway Senate Democrats. Gov. Rick Perry and Lt. Gov. David Dewhurst filed the mandamus petition on Aug. 7, seeking to end the Senate Democrats’ walkout to block a vote on redistricting. The state Supreme Court’s action on Monday came about 2 1/2 hours after the Democrats argued in a response to the Republican leaders’ petition that the state’s highest civil court lacks jurisdiction to consider such a mandamus. Texas Government Code � 22.002 limits the state Supreme Court’s mandamus authority to “an officer of state government,” the Democrats argued in their response to In Re Perry, et al. Charles “Chip” Babcock, another attorney representing the Democrats, says the term “officer of state government” includes executive officers, such as the governor, and heads of state departments. “It’s never been applied to people in the legislative branch,” says Babcock, a partner in Jackson Walker in Houston. The Democrats also argued that the mandamus sought by Perry and Dewhurst would violate the separation of powers requirement established in Article II, � 1 of the Texas Constitution. Angela Hale, communications director for the Texas office of the attorney general, which represents Perry and Dewhurst in the legal flap with the Democratic senators, declines comment on the state Supreme Court’s decision. Perry says in a written statement he is disappointed the Texas Supreme Court did not resolve the pending constitutional crisis. “Without a legal resolution, this constitutional abuse will be used in the future to again bring our government to a halt,” Perry says in the statement. Greg Coleman, a former state solicitor general with the OAG and now a partner in the Austin office of Weil, Gotshal & Manges, says he’s not surprised the court denied the mandamus. If it had been “pretty clear” that legislators are officers of state government, Coleman says that he doesn’t think the Texas Supreme Court would have shied away from issuing a writ of mandamus. But he adds, “I don’t think this court is going to jump over jurisdictional hurdles to take the case.” Holding that every state representative and senator is subject to the state Supreme Court’s original jurisdiction would be “novel,” and it would create concerns about how that holding could be used in the future if people became unhappy with a legislator and filed a mandamus action, Coleman says. Meanwhile, in Houston, 269th District Judge John Wooldridge took no action on Monday in a suit filed by a Houston taxpayer who seeks a writ of mandamus to force his state senator, John Whitmire, to fulfill his legislative duties. In David B. Wilson v. The Honorable John Whitmire, Wilson seeks an order to force Whitmire to report to Dewhurst at the Senate chambers. During a brief hearing, Wooldridge told Wilson and his lawyer, Houston solo practitioner Paul O’Finan, as well as lawyers for Whitmire, Joseph Jamail and Frank Staggs, partners in Jamail & Kolius of Houston, that he would grant a continuance to give the state Supreme Court time to act on the suit filed by Perry and Dewhurst. Jamail and Staggs received word of the court’s action in that suit shortly after the hearing before Wooldridge concluded. But O’Finan says he plans to ask Wooldridge to order Whitmire to appear in Houston for a deposition, and suggests that if Whitmire fails to do so, Wilson would file a grievance against Whitmire, a lawyer, with the State Bar of Texas. A few hours before the Texas Supreme Court denied the Republicans’ petition, the Democrats filed a suit against the state, Perry and Dewhurst in U.S. District Court in Laredo alleging violations of the Voting Rights Act. The Democrats allege in their complaint in Barrientos, et al. v. State of Texas, et al. — assigned to U.S. District Judge Keith P. Ellison of the Southern District of Texas — that GOP officials failed to obtain the prerequisite pre-clearance from the U.S. District Court for the District of Columbia or the U.S. attorney general for proposed new congressional districts. Also in the complaint, the Democrats allege that Dewhurst’s plan to abandon the traditional practice of requiring a two-thirds vote to move a bill to the Senate “will harm minority voters and the ability of their elected representatives to protect their voting rights in the congressional redistricting process.” With the state Supreme Court’s denial of the mandamus action, Dewhurst can say he has taken his best shot and it didn’t work, says Hicks, who represents the Democrats in the federal suit. “It’s time for him to reinstate that two-thirds rule and let everybody get back to work,” Hicks says. Dewhurst says in a written statement that the court’s denial of the mandamus writ clarifies that the issue is a legislative matter that only legislators can resolve. “I agree. Accordingly, when the Senate convenes on [Aug. 12], I expect that senators will consider appropriate measures against absent members as authorized by the Texas Senate Rules and by the Texas Constitution [Article III, � 10] for the purpose of compelling their attendance,” Dewhurst says in the statement. [Editor's note: According to various press reports, Republicans in the state Senate voted Tuesday to fine their missing Democratic colleagues, giving them two days to return or face thousands in penalties.]

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