Greg Abbott’s lawsuit to expel Democrats is embarrassingly weak
His claims are unprecedented, lack any support in the law, and contradict each other if you think about them for even a second
Over the weekend, Democratic members of the Texas House of Representatives fled the state, blocking the House from having a quorum and preventing the legislature from enacting the brutal gerrymander it has planned for the state’s congressional districts.
In response, on Sunday night, Gov. Greg Abbott threatened that any lawmaker fleeing the state would have legally “abandoned” their office, and said that he would file lawsuits seeking to have their seats vacated.
On Tuesday night, he did just that—filing a suit before the Texas Supreme Court, asking the justices to declare that state Rep. Gene Wu had indeed “abandoned” his seat.
Not only is this a baseless lawsuit, but its lack of legal support is genuinely stunning. For how far-reaching Abbott’s claims are, and how unprecedented his ask is, he should be backing both up with tight legal reasoning and solid caselaw. He isn’t. Instead, he relies on paradoxical arguments that fall apart with the slightest examination.
It’s unclear that the Texas Supreme Court can hear this case at all
Ordinarily, cases are filed with trial courts. But most state supreme courts have exceptions to that usual practice in special cases. The Texas Constitution grants the state Supreme Court the power “to issue writs of quo warranto and mandamus in such cases as may be specified” by the legislature. "Quo warranto" is a Latin phrase that means, basically, “by what authority,” and it’s used to question the legal basis that an officeholder has to their office.
The Texas Legislature has, in turn, granted the Supreme Court the power to issue “writs of quo warranto” against “any officer of state government except the governor.”
Abbott’s brief argues that this law empowers the Supreme Court to hear the case that he’s filed because “[i]t is clear that a member of the Texas House of Representatives is an ‘officer of state government.’” He cites an 1893 case to support his argument that the phrase “officer of state government” is “given its plain meaning.”
But Abbott ignores the fact that, for over a century, the Supreme Court’s interpretation of “officer of state government” directly contradicts what he’s saying here. As the Court explained in a 1999 case titled In re Nolo Press/Folk Law, Inc.:
We have construed this phrase to refer, not to every State official at every level, but only to chief administrative officers—the heads of State departments and agencies who are charged with the general administration of State affairs.
In other words, not state legislators. And even if I’m reading that opinion too narrowly, Abbott cites nothing to the contrary.
It also bears noting that this is an unusual invocation of quo warranto, and as one expert notes, Abbott may not be entitled to bring this action under Texas law. As explained by one of the leading nineteenth-century treatises on public officers, courts will usually not grant a writ of quo warranto where there is “any other remedy” available—like when the state constitution or statute creates a specific process for doing so.
In Texas, as in most states, there is a separate process for removing a state legislator from office. The state Constitution delegates to each chamber of the state legislature the power to “judge of the qualifications and election of its own members,” and separately, the power to “punish members for disorderly conduct” and “expel” them for misconduct. As a result, there’s a powerful argument that this lawsuit is totally improper and that the court does not have jurisdiction to issue a writ of quo warranto.
Moreover, even if the court has jurisdiction to hear this case, there are good reasons why it might choose not to anyway. Because state constitutions normally delegate the power to resolve intra-legislative disputes to the legislature itself, courts are generally quite reluctant to intervene in matters relating to alleged legislative misconduct. As a result, it would not be surprising if the Texas Supreme Court held that Abbott’s suit presented a non-justiciable political question and refused to hear the case.
Abbott’s argument that Wu has “abandoned” his office is pitifully weak
A critical problem for Abbott is that any argument that fleeing to prevent quorum is “abandonment” contradicts itself. Abandonment, as Texas courts have noted, requires “[t]he failure to perform the duties pertaining to the office . . . with actual or imputed intention on the part of the officer to abandon and relinquish the office” (emphasis added).
It’s absurd to suggest that Wu is intending to relinquish his office. He’s deliberately using the powers of his office at this exact moment. Suggesting that he has, by doing so, evinced any intent to relinquish his office is nonsensical.
As a result, before Abbott filed his lawsuit, I was extremely skeptical that he would be able to marshal any persuasive legal arguments in support of his claim that fleeing the state to prevent a quorum constituted “abandonment” of office.
Abbott’s Sunday night letter relied on a wishy-washy 2021 advisory opinion from Attorney General Ken Paxton that merely suggested that fleeing to prevent a quorum might constitute abandonment. Even Paxton said that a court would ultimately have to decide. His opinion, however, cited no relevant cases or presented an argument as to why this would constitute “abandonment.”
Abbott’s lawsuit presents no arguments that are even remotely plausible. They cite nothing. They have nothing. Their arguments are nothing.
So what do they say? Abbott makes three main arguments: (1) failing to perform the duties of a legislator is abandonment; (2) Wu has been bribed; and (3) leaving the state without definite plans to return is abandonment.
The first argument is that the constitutional job of a state legislator is to show up to the state legislature and vote. Not doing that, therefore, violates the oath of office and constitutes abandonment, Abbott claims:
Absconding from the State during a constitutionally mandated session, not for lawful cause, but for the very purpose of subverting the Legislature’s ability to function, constitutes a flagrant violation of Wu’s oath and is an intentional abandonment of his constitutional duty under Article III, Section 5.
But Abbott cites no caselaw for any of these arguments. Depriving the legislature of a quorum by leaving is a common practice dating back to the 19th century, as the Texas Tribune recently laid out. Suggesting that a common practice provides a legal basis for involuntarily removing someone from office by judicial edict is bold enough—but Abbott doesn't bother explaining why that is the case or what in two-plus centuries of Anglo-American constitutional law suggests that would be the case.
Abbott also argues that Wu has been bribed. He points to a provision in the Texas Constitution that disqualifies state legislators who have been bribed, and suggests that Wu could be charged with bribery under state law.
The best that Abbott can say is that Wu “demonstrably accepted ‘things of value’—including an expensive trip on a private jet—to facilitate the ‘withholding of’ his vote from the Texas House by effectuating his out-of-state absence” and that “he did all of that in exchange for his failure to perform the most basic of duties placed upon him—showing up for meetings of the Legislature when convened by the Governor.”
Abbott presents no proof of these allegations, which are outrageous. But more to the point, they don’t make any sense.
Both the state Constitution and Texas’ definition of “bribery” in its penal code require an exchange—essentially, the “thing of value” must induce a change in behavior. The Constitution requires that Wu must have “solicit[ed], demand[ed], or receive[d], or consent[ed] to receive” any “thing of value” in exchange “for his vote or official influence, or for withholding the same.” Likewise, the Texas Penal Code requires that an officeholder accept “any benefit as consideration for the recipient’s decision[.]”
Their argument, if you take it seriously, is that Wu agreed to withhold his vote in exchange for a plane trip to a location where he could withhold his vote. That's absurd.. The entire first part of the brief argues that Wu was purposely withholding his vote to deny a quorum. To say that he did it for a trip … so that he could deny quorum is paradoxical.
And Abbott cites no caselaw to support his oxymoronic argument.
Abbott's final argument is that “[r]emoval from the state for an indefinite period of time . . . amounts to an abandonment of state office.” He attempts to suggest that, by leaving the state indefinitely without clear plans to return, Wu has basically “removed” himself from the state, creating a vacancy.
Abbott is effectively arguing that Wu is no longer a resident of the state, notwithstanding, you know, literally everything else. I have no idea how to engage with this idea any further. In any event, once again, he cites no caselaw.
That’s it. Those are the arguments. Abbott presents no historical analog or point of comparison, makes no citation to even remotely relevant caselaw, and advances arguments that make utterly no sense. This is horrible lawyering in support of horrible outcomes.
I mean none of this as a prediction for what I think the Texas Supreme Court will or won’t do. We are living in unprecedented times. But these arguments are laughably bad. Any judge with any sense of decency would throw them out of court, and any lawyer advancing these arguments should be embarrassed—and face disciplinary action.