Texas Supreme Court Issues Stay Order, Allows Arrest of Fleeing House Democrats

Update: On Tuesday evening, Speaker Dade Phelan signed arrest warrants for 52 absent Democrats. 

After a Travis County district judge issued a temporary restraining order on Monday that barred quorum-breaking Democrats from being arrested and brought back to the Capitol, the Supreme Court of Texas has stepped in and temporarily reversed the decision.

The stay order from the state’s highest civil court came on Tuesday, after Gov. Greg Abbott and House Speaker Dade Phelan appealed Monday’s ruling.

But even with the court affirming the Legislature’s ability to compel attendance, Phelan has so far proved hesitant to use it.

On July 13, one day after House Democrats left for Washington, D.C., to stop progress on election integrity legislation during the first 30-day special session last month, the House voted to approve a “call of the House,” locking the doors and directing the sergeant-at-arms to send for absent members.

Gov. Greg Abbott even took to the media to say Democrats would be arrested and “cabined inside the Texas Capitol until they get their job done.”

It was soon revealed by State Rep. Kyle Biedermann (R–Fredericksburg) that no arrest warrants had actually been issued. On July 14, Biedermann said, “I have been in direct contact with both DPS and the sergeant-at-arms, and they have not been directed to go and retrieve the Democrats who are currently still in Texas.”

It was not until one Democrat member, State Rep. Philip Cortez of San Antonio, came back to Austin only to leave for Washington, D.C., again several days later that the first and only arrest warrant was issued for him to come back on July 25. 

The only other penalty of note exacted on any of the absent Democrat lawmakers was when Phelan stripped the title of speaker pro tempore from State Rep. Joe Moody (D–El Paso).

Though some Democrats have trickled back three days into the second special session, a quorum remains elusive. Even if lawmakers reach the 100-member, two-thirds threshold they need to conduct business, they could later lose it. 

On Monday, State Rep. Tony Tinderholt (R–Arlington) made the second motion for a “call of the House,” this time for the second special session. 

The House met again briefly on Tuesday, during which time the present members approved a motion to bring the missing Democrats back to the chamber “under warrant of arrest, if necessary.” That same motion, however, was made weeks ago, to no avail.

With the latest Supreme Court order of stay, it remains to be seen if Republican lawmakers will demand Speaker Phelan and Gov. Abbott take more action as the clock ticks.

A response from Democrats is due to the court on August 12 at 4:00 p.m. before the court will issue a final ruling.