Does Texas Governor Greg Abbott have the power to vacate Texas House seats?

AUSTIN (Nexstar) — On Monday the Texas House officially came to a standstill, as over fifty Democratic House members fled the state to prevent the House from getting the 100 members needed to convene. Their primary intention is to stop the redrawing of Texas' U.S. Congressional map, a map President Donald Trump hopes will flip five U.S. House seats from Democratic to Republican.

In the leadup to the quorum break, Republican Governor of Texas Greg Abbott threatened lawmakers by saying he'd vacate their seats and have them charged with bribery — for soliciting funds to support their trip. After the vote, he followed through, asking Texas Department of Public Safety (DPS) officers to bring back missing House members by force, and asking the Texas Rangers to look into bribery charges.

'Come and take it': Democrats call Abbott's bluff

In response to Abbott's initial statements, Texas House Democratic Caucus Chair Gene Wu said, "Come and take it." State Rep. Jolanda Jones, D-Houston, expanded on the sentiment in a Monday morning news conference with New York Governor Kathy Hochul.

"Respectfully, he's making up some {expletive}," Jones, an attorney, said. "He's just trying to get sound bits and he has no legal mechanisms."

While Abbott has authorized DPS officers to civilly arrest delinquent House members, their authority doesn't extend outside of Texas.

"Once they're out of state, it's almost impossible to touch them," Maynooth Law Professor Seth Barrett Tillman said. While Tillman says he doesn't believe Abbott is acting in bad faith, he does believe his arguments won't hold up in court. "The Governor certainly can't send his sheriffs or marshals — or certainly shouldn't send non-government workers like private bail bondsmen to cross state lines to grab people and bring them back to Texas. I think that would be lawless violence."

The governments of New York, Illinois and Massachusetts — where many members are currently located — are unlikely to be sympathetic with Abbott's cause. However, the President of the United States might be.

"We're looking for whatever we need to do to maintain this important work," Speaker of the Texas House Dustin Burrows, R-Lubbock, said when asked about potential federal involvement. "We will continue to work with everybody to make sure there is nothing off the table."

"I hadn't thought about (the federal Government getting involved)," Tillman said. "They're not breaking any federal law that I know of and if there's not I don't know what federal power, what marshal, what other agent of the government could reach into a state out of Texas, grab a member of the legislature and shift him over the state line without basically that action being called kidnapping."

'Courts are very hesitant to overturn elections'

On Sunday night, Abbott cited a non-binding 2021 opinion from Texas Attorney General Ken Paxton, saying "For any member who fails to (appear), I will invoke Texas Attorney General Opinion No. KP-0382 to remove the missing Democrats from membership in the Texas House."

Despite the citation, the opinion does not give claim the Governor has any power to remove members of the Texas legislature from office. Instead, it purports that a district court could declare a seat abandoned, and therefore treat the seat as if it had been resigned. However, in the opinion the Texas Supreme Court is cited saying abandonment is a form of resignation that requires lawmakers to actually abandon their position.

"(Resignation) is a formal relinquishment; (abandonment is) a relinquishment through nonuser," the court wrote in Honey v. Graham (1873). "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."

Even Paxton seem skeptical of being able to vacate members during a Monday morning interview with right-wing online talk-show host Benny Johnson.

"The challenge is that wouldn't be an immediate answer," Paxton explained to Johnson. "We'd have to go through (the) court process and we'd have to file that maybe in district that are not friendly to Republicans. So it's a challenge because every district would be different. We'd have to go sue in every legislator's home district to try to execute on that idea."

If Paxton and Abbott even try to take vacancies to the courts, they'll face an uphill battle.

"(Abbott) certainly has the power to try," Tillman said. Tillman helped author an amicus brief in support of President Donald Trump when Colorado officials attempted to declare him ineligible for running for President. "Terminating an elected official in the position he was elected is a big thing, which is what the Colorado Supreme Court learned... Courts are very hesitant to overturn elections. Courts are very hesitant to overturn voter's rights and courts are very hesitant to limit the participation of citizens in elections."

'I wouldn't call that a bribe'

Late on Monday afternoon, Abbott announced the Texas Rangers would open an inquiry into bribery charges against Texas House members.

"Reports indicate that many absentee Texas House Democrats have solicited or received funds to evade conducting legislative business and casting votes. Under the Texas Penal Code, any of those Democrats who solicit, accept, or agree to accept such funds to assist in the violation of legislative duties or for purposes of skipping a vote may have violated bribery laws," Abbott wrote. "Also, it could be a bribery violation for any other person who offers, provides, or agrees to provide such funds to fleeing Democrat House members."

Tillman says accusing the opposition of bribery is not only incorrect, but potentially disastrous.

"What we usually mean by bribery is when someone takes money or property and secretes it in their closet, and doesn't pay taxes on it and they hide what they're doing from the public because they're trying to engineer a private benefit through exercise of their office," Tillman said. "It seems to me, if a Democratic member attempts to break quorum as a general matter, if he's being transparent about receiving these funds, if he tells the public he's received it, if he spend it in a way that's to facilitate public action, which is breaking the quorum — he's not doing it to repave his driveway, he's not doing it to pay for his own personal rent — He's doing it to facilitate the political action he's taking, and he pays taxes on it, then I wouldn't call that a bribe. I would call that normal politics."

Tillman noted he's not an expert on Texas campaign finance law, and says this trend of calling opposition political spending a 'bribe' picked up a lot with media criticisms of Trump during his first administration.

"I think it would be bad for the country if every time people engage in normal politics, we have to drag them before the courts and try them for bribery," Tillman said. "And some courts are likely to make a mistake on that, and they'll actually call it bribery and convict people. And that would be a terrible thing."