State Judge Blocks Any Arrest of Democrats Who Fled Legislature

That is the same language of Article I, Section 5 of the federal constitution: “[Each house] may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”

The legislature has relied on that authority for its own rule allow for a Motion for Call of the House, directing the House’s sergeant-at-arms to order state police to force the wayward members back to the floor. Rule 5 (Sec. 8) specifically refers to an “arrest”: “All absentees for whom no sufficient excuse is made may, by order of a majority of those present, be sent for and arrested, wherever they may be found.”

The members hit on the meaning of arrest to incorporate constitutional and statutory limits for officers to make arrests, including the requirement of an underlying criminal allegation.

This is relatively untrodden ground. At least one lawmaker (in 1979) was facing arrest under the rule, but police ended up arresting his brother by mistake.

The court will have to decide the authority to order such an arrest and the authority of officers to rely on that authority. Given the footprint in the state constitution, that authority could be viewed as superseding on these issues. There is clearly state authority “to compel” attendance regardless of a member’s consent or concurrence. The question is how far that can go. Does it permit a court order or allow actual custody by a state officer?

The order to block any arrests is a common response from courts to separate the parties, stop the action, and hear the arguments. There will likely be an appeal regardless of the ruling on the merits by one side or the other.

It will be a fascinating debate.

37 thoughts on “State Judge Blocks Any Arrest of Democrats Who Fled Legislature”

  1. While this has been already overturned… Turley makes one comment:
    “There is clearly state authority “to compel” attendance regardless of a member’s consent or concurrence. The question is how far that can go. Does it permit a court order or allow actual custody by a state officer?”

    The simple answer is yes. The member has two options… They can face arrest, or resign. The members took an oath of office. Thus the arrests if warranted do not require a consent or concurrence because they already gave it.

    The question for Turley… is not taking the oath of office a verbal contract?

  2. Can the Governor block paying the representatives for the time they were away? I have read unsubstantiated reports that the absent legislators continued to receive their per diem as if they were still present and working in Austin.

    1. Can they block their pay?
      No.
      But that doesn’t mean that they couldn’t be fined for their actions.

      -Gumby

  3. ONE FELL SWOOP

    “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

    – Declaration of Independence, 1776
    _____________________________

    This “judge” has committed abuse and usurpation of power.

    This “judge” unconstitutionally and treasonously legislated chaos, “… in adhering to their Enemies, giving them Aid and Comfort…” by debasing, diminishing and weakening the nation.

    Impeach, convict and severely penalize the entire judicial branch, with emphasis on the Supreme Court.

    The singular American failure has been and continues to be the judicial branch, with emphasis on the Supreme Court.
    _____________________________________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  4. Texas can’t have a quorum anyway, to many republicans out with covid for at least 2 weeks. Now, if a republican house member is sick, maybe they can arrest them at the hospital.

  5. Texas Supreme Court just allowed for the arrests.

    The meddling and stupid trial judge should be stripped of his office.

    1. Stripped? No.
      Censured? Yes.

      The question is if the Judge knowingly created the TRO with no legal justification.
      If that were the case… the judge should be censured.
      -G

      1. Censured he stays on the bench to make more stupid rulings. Stripped he gets to spend more time with his family.

        Stripped of office is an actual remedy rather than a useless gesture.

  6. There should be a recall movement against every single Democrat who fled, on the grounds of dereliction of duty and spreading deliberate misinformation about the legislation in question.

    I have no idea about the legality of compelling any member of the state legislature to do their job.

    Questions for Democrats who applaud this:

    Would you similarly approve if a minority of Republican state or federal legislators fled for over a month in order to stop legislation by other means when they lacked the votes, thereby grinding the entire legislature to a halt?

    Have you read the legislation in question, and if so, do you understand that the Democrats are lying about what the law does in order to justify their dereliction of duty?

    1. Karen, people like you and Monument make the comments section very enjoyable. Sadly we have guys like Anonymous EB that comment 100 times a day and almost ruin the site.

      1. -HullBobby,
        +1 on your comment.
        I think Chris Web(ber?) is another well read poster. A number of ThinkItThough posts I have found interesting. There are likely a dozen or more whom I have also found their additions welcomed.

        I mentioned elsewhere that it seem some are very upset with the fact that Professor Turley runs this site with his own money. He does not need ads, or monetization as a source of income. He runs this Blog to point out his opinions, create discussion, and make people think. That seems to upset some people as they cannot find a way to cancel him. Hence I suspect they make comments to distract, obfuscate, and try to make general disorder.
        It is all they have.
        As of late, some of their comments or arguments have become so inane, I cannot bring myself to read past the first one or two lines. I know, this blog is supposed to be about free speech, the exchange of ideas . . . but again, ever so inane.

        I would suggest the “ignore” button to the professor, but that would go against the very point of this blog.

    2. Now, Karen’s a constitutional scholar. Is there any subject for which she isn’t an expert that she can use to criticize Democrats and defend Republicans? She thinks it is “dereliction of duty” to prevent Republicans from steamrollering voting restrictions. No, it isn’t–it’s complying with the oath to protect and defend the Constitution from enemies foreign and domestic. In this case, it’s Republicans who are the domestic enemies, passing laws to make it harder for Democrats to vote. And, no, the Democrats are not lying.

        1. Well, one of us is educated. One of us is informed. One of us is not an alt-right news disciple who repeats the slop she tunes into for daily affirmation. One of us is not a blind disciple of a failed election cheater. One of us knows the difference between a conservative and a Trump disciple. One of us doesn’t try to blame the Democrats for every possible thing that goes wrong in this country. One of us doesn’t claim the Democratic party started or supported race riots after George Floyd’s death. One of us sees the Trump Insurrection for the threat to democracy and the peaceful transfer of power that it was, and not just “a couple of yahoos” who merely trespassed in the Capitol. One of us knows what gynecologic techniques are taught in nursing schools. One of us knows that Hydroxychloroquine is not effective in preventing and treating COVID. One of us doesn’t try to throw around big words or make references to classic films that she hasn’t watched or doesn’t understand in order to appear sophisticated. Hint: it isn’t Karen.

          1. @Natacha,
            And unfortunately many do not share your high opinion of yourself.

            Your TDS is showing.

            The one thing you can credit Biden for doing is showing us that a boorish man, Trump, was a more effective leader than the senile / demented Biden. Biden’s wrath of removing everything Trump did is going to be his legacy and it will just add to his pile of failures.

            Biden had trashed the southern border, created yet another wave of the Covid pandemic and has created a wave of inflation not seen since Jimmy Carter. (You were probably not even born back then. )

            Biden’s policies have cause a humanitarian crisis on the border. In addition while trying to convince Americans to get vaccinated including extolling bribes , the illegals were processed, but not given the vaccine and while many were infected, they were crammed in to overcrowded shelters and then released across the US, first in the Southern States.

            These actions are responsible for the increased uptick in infection rates.

            So while you wish to praise your DNC , you fail to see the stupidity of their actions.

            -Gumby

      1. Did you EVEN READ Turley’s post where he gave clear evidence that both the Constitution of the United States and the Texas Constitution conveys that power to compel the legislators to come back? (WHAT would you say if Congressional Republicans had pulled this stunt with the “infrastructure” bill?)

        Is there something you don’t understand about the rule of law as illuminated by Turley or do progressives just make up law as their moral compass spins? Do you have ANY factual counter argument to Karen’s post or does your disagreement consists of only ad hominem attacks?

        Suggest you read the Texas Supreme Courts decision which plainly points out where the Democrats abandoned their responsibilities in the legislature and therefore have no case. Between Turley’s post and the Supreme Court decision maybe you will have enough ammunition to construct a logical coherent fact based argument that Turley and Karen are wrong.

    3. @KarenS,

      While I agree that their actions were both futile and a disappointment, getting them out of office is a tad more difficult.
      Putting aside their rhetoric, they are doing what they believe their constituents want.

      Since they are the incumbent in a blue region, removing the are the proverbial glass of water, Pelosi famously bragged about.
      Unless the local Democratic Party wants them out, they will be re-elected. This will continue until the DNC misreads that district.

      -G

  7. The members hit on the meaning of arrest to incorporate constitutional and statutory limits for officers to make arrests, including the requirement of an underlying criminal allegation.
    That is just plain stupid. They need an arrest warrant, which the House can easily give them.

  8. “It will be a fascinating debate”

    If the legislators were republicans it might be fascinating. Since they are democrats there will be nothing fascinating about it, they well get a free pass as they always do. Silly things like laws, regulations, rules and requirements don’t apply to the ruling class, provided that ruling class is made up of democrats.

  9. ACTIVIST DEM LIBERAL JUDGE will be appealed and Overturned in Texas. The Dem’s know this. The Dem’s court cases in Texas have a poor track record. Along with Biden Admin’s poor record in the courts on Appeal.

  10. A fascinating debate for sure, Jon.

    Meanwhile, a rogue president tried to overthrow the results of an election he lost in ’20/21. When your friend Barr got wind of it he resigned (even after previously turning himself into a pretzel for said rogue president). That’s even more fascinating!!!

    eb

    1. eb

      You really are a one trick pony.

      We could probably accept lack of imagination, but being boring is unacceptable.

      And now you will come back with your unimaginative insults.

      eb, please, pretty please, try for some wit.

    2. Eb,

      I watch Fox so you don’t have to, and the hosts will not cover the investigation into 1/6, not even the recent incredibly damning DOJ revelations. Not a word. You think Jonathan “Fox News” Turley will say something? Anything? Come on, look at his middle name!

      Remember that Fox is being sued for defamation for spreading the Big Lie, and Turley could be called for a deposition during the discovery phase. He cannot go on the record to acknowledge the existence of the “Big Lie.” Two words which he has NEVER put his pen to paper.

      For him, the Trumpist lawyers acted with unimpeachable good faith in submitting their conspiracy-laden pleadings, but the evidence of massive voter fraud just simply failed to materialize to their utter shock and surprise. No harm, no foul. That’s his under-oath testimony I would presume. I just hope he can pull it off without cracking a smile!

    3. Meanwhile, a rogue president stepped outside the Constitution once again, this time taking away property rights of landlords.

      1. But it was for a good cause. In the recently decided Biden v Cornpop it was held that there was no violation as long as the President meant well.

    4. EB, now do Hilary and the fake Russian collusion thing that seriously harmed the administration and the nation for three years. Now do Stacey Abrams and what denying her own loss and what it has done to election integrity for the last three years. Now do all the members of congress who voted to not give trump the electoral votes, you guys like Jamie Raskin.

      EB….Latin for “One Artificium Equus” -one trick pony.

      1. Trump cheated his way into the White House in 2016 with Russia’s help. He LOST the popular vote. Read the Mueller Report–filled with actual evidence, plus all of the indictments, guilty pleas and guilty verdicts from people associated with Trump who were involved with the Russian collusion to help him cheat in 2016. The investigation wasn’t “fake”. The only “fake” thing was Trump’s “presidency”. The majority of the American people never wanted Trump in the first place, never approved of him, and every single poll predicted he’d lose again. His presidency was a failure because HE is a failure at everything other than pretending to be successful.

        But, you want to talk about Stacey Abrams who is “denying her own loss”, which is harmed “election integrity”? Just how far out there do you have to be not to who’s responsible for causing Americans to worry about election integrity? How delusional do you have to be to claim that members of Congress were supposed to “give” Trump electoral votes, something they have no power to do? The American people rejected Trump, fair and square, as predicted by every poll, as certified by every Secretary of State, most of whom were Republicans, as confirmed by Bill Barr and Chris Krebs, and as confirmed by 60+ courts that held that Trump’s challenges to the election of 2020 were phony–no factual basis. Congress has NO authority to “give” electoral votes to a losing presidential candidate.

        1. Natacha

          “One can lead a horse to the water…”

          You really are resistant to facts.

          I would characterize your posts as: “Frequently wrong, never in doubt.”

          Thinking is a wonderful activity; try it.

          1. Well, aren’t you clever today. Tell me: what did I get wrong? Were there NO guilty pleas, indictments or convictions of Trump associates as a result of the Mueller investigation? Did Trump really win the 2016 popular vote or did Hillary beat him by at least 3 million votes? Did any polls predict he would win in 2020? Did Trump ever capture even a 50% approval rating in 4 years’ time? Did Trump file 6 business bankruptcies after his father came down with dementia and couldn’t bail him out any more?

            Tell me, what lawful authority did Congress have to “give” electoral college votes to Trump? Do you even know how the electoral college works? Tell me, which of the 50 Secretaries of State failed to certify the ballot totals from their states? What authority did Pence have to refuse to accept certified vote totals? What about the multiple recounts in Arizona and Georgia that didn’t change the outcome? Did I dream this up? Did I make up Bill Barr saying that there was no evidence of widespread election fraud, or that Chris Krebs, head of cybersecurity and appointed by Trump, said that 2020 was the most-secure election in history, and that he was fired for telling this truth? How about the 60+ lawsuits that were dismissed by various courts because there was no evidence of voter fraud? Did I just dream them up? You claim I am “really resistant to facts”–what facts are you speaking of?

            What did I get wrong here, or are you just proving the point that it is you Trump disciples who are immune to facts? This is why there cannot be intelligent discussions with you alt-right media disciples: you have been indoctrinated into believing lies, and also indoctrinated into rejecting facts that conflict with the lies you’ve been indoctrinated to believe, and even personally attacking those set forth facts that conflict with the lies you’ve been told. Tell me what I haven’t told the truth about.

        2. Trump cheated his way into the White House in 2016 with Russia’s helpNo. There was an investigation of ~2 years that concluded there was zero instances of collusion between Trump, and his campaign, or people close to him, with Russia He LOST the popular vote.The ‘popular vote is an invented metric, useless when determining a Presidential election Read the Mueller Report–filled with actual evidence,Mueller was charged by the Atty General to make charging recommendations, or declination of crimes, in the summary of the investigation, Mueller refusedplus all of the indictments, guilty pleas and guilty verdicts from people associated with Trump who were involved with the Russian collusion to help him cheat in 2016. any convictions were for crimes unrelated to the Trump campaign, or administration.

  11. Americans don’t enforce Ronald Reagan’s torture treaty (and U.S. criminal law) violated by the Bush Administration – where the perpetrators admitted to the crimes – so this is the equivalent of Jay-walking compared to that.

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