Can Greg Abbott 'fire' Democrat legislators who refuse to attend a special session? He can certainly try.
Duane wrote about the fleebagging Democrats, who have sought succor in Illinois, which ironically is one of the worst states for partisan gerrymandering in the country. Governor J.B. Pritzker says that he will not allow Texas law enforcement to arrest and return the Democrat state legislators, claiming they have no authority to operate in his state. Abbott may not bother with extradition at all, instead threatening to declare their seats vacant and calling for special elections after the session concludes:
“This truancy ends now. The derelict Democrat House members must return to Texas and be in attendance when the House reconvenes at 3:00 PM on Monday, August 4, 2025,” Abbott wrote. “For any member who fails to do so, I will invoke Texas Attorney General Opinion No. KP-0382 to remove the missing Democrats from membership in the Texas House.”
The governor also accused House Democrats of committing felony crimes.
“In addition to abandoning their offices, these legislators may also have committed felonies,” he wrote. “Many absentee Democrats are soliciting funds to evade the fines they will incur under House rules. Any Democrat who ‘solicits, accepts, or agrees to accept’ such funds to assist in the violation of legislative duties or for purposes of skipping a vote may have violated bribery laws…The same could be true for any other person who ‘offers, confers, or agrees to confer’ such funds to fleeing Democrat House members. I will use my full extradition authority to demand the return to Texas of any potential out-of-state felons.”
Let's start with the felonies. After the last time Democrats tried fleebagging to block legislation in 2021, the state legislature made it a felony to raise or donate money for the purpose of obstruction. Democrats think they have ways around that law and have been raising money to pay "salaries" instead, but that likely won't be enough to skirt the statute. (All one needs to know is that the fleebaggers have apparently gotten legal advice from Jasmine Crockett on this point.)
There may well be enough legal exposure here to support felony prosecutions, if Abbott wants to go to the mattresses. But what about declaring vacancies? The purpose of exercising that option is to reduce the quorum requirements that will allow the session to continue. Four years ago, after Democrat fleebaggers scuttled a special session only to have Abbott to declare another special session immediately afterward, AG Ken Paxton created a formal opinion warning that fleebagging constitutes a legal abandonment of office, a status which can be enforced by the executive branch via application to the judiciary:
Both the Texas Constitution and the Election Code establish the timing of when a vacancy occurs in public offices generally, accounting for vacancy by death, resignation, removal, acceptance of another office, a declaration of ineligibility, creation of a new office, if a deceased or ineligible candidate wins an election, or if an officer-elect declines to assume office. TEX. CONST. art. III, § 13; TEX. ELEC. CODE §§ 201.021 (providing that a vacancy occurs at a time prescribed by statute), .022–.025 (prescribing the time of vacancy due to death, resignation, removal, or acceptance of other office). However, we find no constitutional provision or statute establishing an exhaustive list for why a vacancy occurs or the grounds under which an officer may be judicially removed from office. ...
Describing abandonment of office, one Texas court explained:
Abandonment is a species of resignation. Resignation and abandonment are voluntary acts. The former is a formal relinquishment; the latter a relinquishment through nonuser. Abandonment implies nonuser, but nonuser does not, of itself, constitute abandonment. The failure to perform the duties pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact.
The problem here, though, is that there is no mechanism for the governor to declare those seats vacant. However, Paxton claims that he can effectively do so by filing suits in each jurisdiction where the abandonment of office takes place, emphasis mine:
If a legislator is believed to have forfeited his or her office by abandonment, “the attorney general or the county or district attorney of the proper county” may initiate a suit in district court. Id. § 66.002(a). If the court determines that the public officer has forfeited the office, the court “shall enter judgment removing the person from the office.” Id. § 66.003(1). If an officer is removed from office by a court or other tribunal, a vacancy occurs on the date the judgment becomes final. TEX. ELEC. CODE § 201.024.
The DAs and county attorneys in this circumstance are most likely fellow Democrats and won't lift a finger to remove the fleebaggers from office. Paxton therefore made clear that his own office has that authority, and given the circumstances four years ago, strongly suggested that he would enthusiastically apply the law. And since Paxton is now running to challenge John Cornyn for the US Senate in next year's primary, he's probably even more enthusiastic about it than he was four years ago.
However, Paxton will still have to get a judge to agree to remove elected legislators from office. He might have to file those suits in each specific jurisdiction as well, although one would expect him to try a more global approach in a single legal action. Needless to say, judges at all levels are usually loath to intervene in what they see as political questions, especially without express statutory support. This is Paxton's opinion based on a blend of rather unremarkable statutes and judicial precedents. Abbott might be on firmer ground with an investigation into the funding for fleebagging, which would take longer but make disqualification more difficult to defeat.
Both methods are essentially taxes for public stunt work and exercises in performative futility. Eventually, these Democrats will have to return to the state, where they will be subject to arrest and forced to attend a legislative session. As Axios notes today, these fleebagging adventures have ended in defeat every time:
Between the lines: Texas House Democrats have broken quorum twice in recent history — in 2021 to Washington, D.C., in response to proposed voting restrictions and to Ardmore, Oklahoma, in 2003 over redistricting.
- Both times only delayed the inevitable passage of the bills they had opposed.
Abbott can keep calling special sessions until these bills pass. And with flood relief and safety improvements also on the table this session, Abbott can easily make the case that Democrats care more about fundraising than they do about the health and safety of their constituents, especially after the devastating floods last month in Texas Hill Country that killed more than 100 people. This is a bad time for elected officials to spurn the duties of the offices they sought.
