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Texas Senate Republicans’ unprecedented vote on Aug. 12 to fine the 11 quorum-breaking Democratic senators who fled the state to block consideration of congressional redistricting raises a legal question — how did they do it? The reason the Republicans voted to impose penalties — starting at $1,000 a day and increasing to $5,000 per day, to be paid out of each absent senator’s personal funds — is because the Democrats are preventing a quorum in the 31-member state Senate. Article III, � 10 of the Texas Constitution provides that two-thirds of each house constitutes a quorum to do business. The Senate resolution that provides for the monetary penalties passed by a 17-2 vote, with one senator absent and not voting. That doesn’t add up to the 21 votes needed for a quorum. “I think we’re in uncharted waters, raising some unique issues a court is going to have to decide,” says Jeff Boyd, a former deputy state attorney general who’s now a partner in the Austin office of Thompson & Knight. The Senate Republicans voted to fine the Democrats the day after the Texas Supreme Court denied a petition for writ of mandamus sought by Gov. Rick Perry and Lt. Gov. David Dewhurst to force the absent senators to return to the capitol. The high court didn’t issue an opinion to explain its Aug. 11 decision, but Justices Nathan Hecht, Priscilla Owen and Stephen Smith added a notation: “The Court denies the petition for writ of mandamus without regard to the merits of the constitutional arguments.” State Sen. Elliot Shapleigh, D-El Paso, says he and the other senators who’ve refused to show up for this summer’s second special session fail to see how the Senate can conduct any “binding business” with less than a quorum. “The fines have no legal basis and no enforceability,” says Shapleigh, a shareholder in Peticolas, Shapleigh, Kern & Kalman. Spencer Reid, Dewhurst’s general counsel, says the Aug. 12 motion that imposes penalties against the Democrats is “in order” because it is designed to compel attendance of the absent senators, who flew to Albuquerque, N.M., on July 28 to block consideration of a new map for Texas’ congressional districts. Reid cites Article III, � 10 of the constitution, which “authorizes a number smaller than a quorum to put a call on the Senate and compel the attendance of absent members in such a manner and under such penalties as they choose.” Senate Rule 5.04 provides that the Senate shall determine upon what conditions absent members “shall be discharged” and that senators who voluntarily appear shall, “unless the Senate otherwise directs, be immediately admitted to the floor of the Senate.” The wording of the rule “would indicate that conditions could be placed on the voluntary return of a senator,” Reid said in a memo to Senate Secretary Patsy Spaw that spells out his legal reasoning. Texas Attorney General Greg Abbott said in an Aug. 12 letter to Dewhurst that he concurs with Reid’s legal analysis regarding the authority of the remaining senators to assess penalties on members who don’t respond to a call of the Senate. “It is our conclusion that members of the Texas Senate have no constitutional right to break a quorum of the Senate and that the Texas Constitution authorizes the remaining senators to compel their attendance,” Abbott said in a letter. In an interview, Reid says the Senate voted without a quorum to compel the absent members’ attendance. “That’s why it’s constitutional,” he says of the vote. The fine is just a way to implement the Senate’s action to compel the Democrats’ attendance at the session, Reid says. Although he found no state precedent for the Senate’s action, Reid cites several federal precedents from “Hinds’ Precedents of the U.S. House of Representatives.” On Feb. 24, 1881, the speaker pro tempore of the U.S. House said that when a call has been placed on that body, the House might excuse a member upon payment of a fine. According to “Hinds,” the decision was based on a provision in the House rules that the House shall determine the condition upon which a member can be discharged from attendance. The speaker pro tempore further held that the same House that was authorized to compel the attendance of members — at that time, a House of 15 members — was authorized to impose the fine, although in this case, the House declined to do so, according to “Hinds.” Reid noted in the memo to Spaw that Article I, � 5, clause 1, of the U.S. Constitution is virtually identical to Article III, � 10 of the state constitution. What must be determined, Boyd says, is the meaning of the word “Senate” in Rule 5.04. Generally, when the word “”enate” is used, people think it means a legally constituted quorum of that body, he says. But, Boyd asks, if Rule 5.04 empowers the Senate to determine the conditions for discharging absent senators from the call and to direct that members who voluntarily appear can be admitted to the floor, who is the Senate that can do that? “The logical argument is, that by empowering the ‘Senate’ to set the conditions, the rule specifically empowers less than a quorum to do so,” Boyd says. But Doug Laycock, a University of Texas School of Law professor who teaches constitutional law, says the manner that the Senate provided for compelling attendance of absent members is to have them arrested. Under Senate Rule 5.02, a majority of the senators present may order the sergeant-at-arms or officers appointed by the sergeant to arrest absent members who don’t have a good reason to be absent. “The Senate isn’t authorized to do anything about fines,” Laycock says. “They could have provided for penalties, but they didn’t.” The Republicans intend to address that issue. The resolution that they passed on Aug. 12 states: “The present members intend to memorialize this motion into a formal change in the Senate rules once a quorum is restored.” What that does, Boyd says, is say that once there is a quorum, the Senate will vote to ratify the resolution retroactively. Doing that raises the question of whether they can ratify the resolution in a subsequent special session or have to do it in the current one, he says. Also an issue, Boyd says, is whether retroactive ratification of the resolution would violate the prohibition against retroactive laws in Article I, � 16 of the state constitution. He says that it must first be determined whether the resolution is a law and, if it is, is it an unconstitutional retroactive one. FINE ENFORCEMENT Under the resolution passed by the Senate, the fines began Aug. 14 and will continue to accrue until the Democrats return for the special session. Shapleigh says he’s not planning to pay the fines, which could total $57,000 by the time the special session ends on Tuesday. Perry said on Aug. 13 that he will continue to call special sessions on congressional redistricting until the Legislature takes action. The Democrats don’t plan to pay the fines. Shapleigh says, “We have no plans with respect to the fines because they are the product of flawed reasoning and a serious error in judgment.” He questions how the Republicans will enforce the fines. “What court is going to say I owe money? What sheriff is going to execute this?” he asks. Reid says the Senate staff is working on issues regarding enforceability. Dewhurst said at an Aug. 12 news conference that the absent senators would not be allowed to vote in the Senate until they had paid their fines. “Prior to them coming back and voting, we expect them to pay the fine,” Dewhurst told reporters. Charles W. “Rocky” Rhodes, a South Texas College of Law professor who teaches civil and appellate law, says that levying fines on individual legislators creates a dispute that can be heard by the courts. “If the Democrats want to file a lawsuit challenging the fines, there’s no question they would have standing,” Rhodes says. So far, the Democrats and their attorney aren’t saying whether they will take the issue to court. “I’m looking at all the options,” says Austin solo Renea Hicks, who represents the Democratic senators. While Hicks won’t say whether the Democrats will file a new suit or amend an existing one to challenge the fines, he agrees that they would have standing to raise that challenge. “[Republicans] are saying, ‘We aren’t doing this to you as senators; we are doing this to you as people outside of your office by taking it out of your pocket,’” he says. Hicks says the Democrats could amend suits they previously filed but declines to say whether they will. On Aug. 7, the Democrats filed a suit for a declaratory judgment in Austin’s 98th District Court. In Van de Putte, et al. v. Dewhurst, et al., they are asking the court to declare any efforts to arrest them and return them to Austin to establish a quorum a violation of the state constitution. The Democrats also filed a suit in the U.S. District Court in Laredo on Aug. 11. In Barrientos, et al. v. Texas, et al., the Democrats allege that GOP officials violated the Voting Rights Act by failing to obtain the required pre-clearance from the U.S. District Court for the District of Columbia or the U.S. attorney general for proposed new congressional districts. A Republican taxpayer brought a suit against one of the AWOL senators in Houston’s 269th District Court seeking to force the Democrat to return. David B. Wilson v. The Honorable John Whitmire is pending before Judge John Wooldridge. After a hearing before Wooldridge on Aug. 11, where the judge took no action, Paul O’Finan, Wilson’s attorney, filed a notice of deposition asking Whitmire to show up at a law firm in Spring, Texas, for a deposition at 10 a.m. “We’re going to use whatever legal means we have to get Sen. Whitmire to come back to Texas,” says O’Finan, a solo practitioner. But lawyers for Whitmire filed a motion on Aug. 13 to quash the deposition notice. Frank Staggs, an associate with Houston’s Jamail & Kolius, says a hearing on the motion is set for Oct. 3; that date is well after the special session ends. As an added bit of insurance, Jamail & Kolius partner Joseph Jamail and Staggs also filed a motion for a legislative continuance, asking for a delay of at least 60 days on the ground that Whitmire would not be available to appear in Wilson while the Legislature is in session. Whitmire’s lawyers write in the motion, “This request for continuance is not for delay only, but so that justice may be done.” Texas Lawyer senior reporter Brenda Sapino Jeffreys contributed to this article.

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