Law scholars say Gov. Abbott's bid to oust Rep. Wu is unprecedented, lacks legal basis

The Hill

a day ago

AUSTIN (KXAN) — Legal scholars called Gov. Greg Abbott's petition to the Texas Supreme Court, which seeks to remove Rep. Gene Wu, 'unprecedented and said it lacks a legal basis.' One of the experts said he's doubtful it will succeed, but could envision the court siding with the Governor.
Quorum breaking has a long history in Texas; however, Gov. Greg Abbott's Tuesday petition to the state's Supreme Court is unprecedented and lacks evidence, legal experts tell KXAN.
Abbott's counsel filed a 'petition for writ of quo warranto' on Tuesday, which is a request for the Texas Supreme Court (SCOTX) to remove a public officer of the state from their position. Specifically, the petition accuses State Rep. Gene Wu, D-Houston, of allegedly taking or soliciting a bribe to break quorum, and that Wu abandoned his office by leaving the state for an 'indefinite period.'
Other Democrats who broke quorum were not named in the petition. However, it may serve as a pilot for future petitions.
Quinn Yeargain, a Michigan State University law professor specializing in states' constitutional law, said the petition lacks sufficient evidence and asks SCOTX to take the governor's argument as 'common sense.'
'Abbott's basic argument is that by purposely leaving the state to prevent the House from having a quorum and being able to conduct business, Rep. Wu … abandoned his office, and therefore it is vacant, and he should be entitled to call a special election to fill the vacancy,' Yeargain said.
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Seth Barrett Tillman, a U.S. Constitutional law professor, also talked with KXAN about the filing. President Donald Trump's legal team cited Tillman's work in their case before the U.S. Supreme Court over Colorado's decision to remove Trump from the ballot in 2024.
'The filing is professional. It's put together well,' Tillman said. 'The governor has some arguments, but ultimately, I'm not convinced.'
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Yeargain explained to KXAN that elected state legislators aren't public officers in the way Abbott's filing imagines they are. Abbott's counsel cites a 1893 case, which Yeargain said was irrelevant to the petition.
'The argument that Abbott makes in his filing, is that a state legislator is 'clearly, obviously a public official or a public officer,'' he said. 'It's actually not clear, and they're just trying to bluff their way through it.'
The Texas Government Code has been used for more than 100 years, and as recently as 1999, to argue the opposite of what Abbott's filing argues, Yeargain added.
'[Abbott] is not able to cite any relevant case that involved anything similar in the past … and there's a mountain of case law that suggests that that is not an appropriate use of this kind of legal threat,' Yeargain said. 'We're talking about executive branch officials in this kind of situation.'
Tillman also said he's not sure quorum breaking is an example of what state law defines as 'official influence.'
'Official influence is the governor calling up a commissioner and saying, 'Get this guy the relief he wants.' I don't know that [quorum breaking] is official influence,' he said.
The petition argues that Wu and other quorum breakers have left Texas for an indefinite amount of time, and thus vacated their seats. This doesn't hold up with what the quorum breakers have said, which is that they do intend to return to their primary residences in their districts.
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'Usually, when we talk about abandoning office, we want them to have an intent of not coming back; not having an intent for a specific date to come back, isn't really the same thing,' Tillman explained. 'I don't see any evidence that [Wu] doesn't plan to return. He just wants to return in his own good time under conditions that he's satisfied with. What the governor says is, 'I want you to return and debate whether you like those conditions or not.''
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The filing's bribery allegation, which Tillman called 'a fairly weak claim,' cites article 16, section 41 of the Texas Constitution.
'Given the gravity of what the governor is asking the court to do, which is, in effect, to override an election … against his party and political opponents, I think the [Texas] Supreme Court is going to want a very close adherence to the language in that constitutional provision,' he said.
Both scholars said they used narrow and originalist perspectives while analyzing Abbott's petition. They each said that the current SCOTX justices, many of whom were Abbott appointees, lean towards these interpretations in their rulings.
'The Texas Supreme Court is really serious about history. It's very interested in historical practice and consistency with that practice,' Yeargain said. 'The fact that Abbott isn't able to point to … any historical analog in the slightest is jarring. It is stunning, because the scope of what he's asking for is massive.'
Yeargain declined to speculate on how SCOTX might rule on the petition in these 'unprecedented times.' Tillman said he could imagine a majority of the justices siding with Abbott, but remains doubtful of that outcome.
'The Constitution of Texas doesn't say that because the governor has the power to convene the legislature, any particular member of the legislature, including Rep. Wu, has a specific duty to show up that day and on time,' Tillman said, 'to the extent that there are provisions that govern punishments, like the $500-a-day provision, that might very well be interpreted as the limit of what could be done against these people.'
If SCOTX issues a writ in this case, it would open a 'can of worms' and make the state's highest court into 'ordinary run of the mill partisan politics,' Yeargain added. The petition, according to Yeargain's reading, is Abbott asking the court to engage in judicial activism.
'[Abbott's] asking for something that the court doesn't have the power to do. He's asking for something that has never been done before, and he can't point to any example of it having been done before,' Yeargain said. 'He's asking the court to step into a political dispute and to arrive at his desired political outcome. That's entirely inappropriate and something that in almost any other context, he would condemn.'
'What he's saying is, 'if they're going to frustrate my power, they should lose their office.' But that's essentially a political question. That's one that should be left to the voters,' Tillman said.
Without consequences, couldn't another quorum break happen?
A talking point by some around the current quorum break is that if legal action isn't taken at some point, won't this just happen again? It's a fair point, since our state legislature has seen a few other quorum breaks in its recent past.
Tillman argued that super majority quorum rules inherently carry the risk of quorum breaking by the minority party.
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'That's the risk you take when you build a provision like that in,' he said. 'Some people might even go further and say it's not just a risk, that's the intent, to make sure that anything that passes has super majority support. Or, at least if it doesn't have super majority support, it doesn't cross the red lines of the dissenting party.'
Quorum breaking isn't just a Texas thing, Yeargain noted. In 2019, Oregon Senate Republicans staged a six-week walkout over an environmental bill. In response, Oregonians successfully voted to amend the state's constitution to ban lawmakers with a certain number of absences from running for office again. In 2024, the Oregon Supreme Court upheld that rule, barring a third of those Republicans from reelection runs.
Texas lawmakers could send such an amendment to the ballot for voters to approve, if they wanted a constitutional obstacle in the future.
Yeargain also had other ideas for the Texas House to consider, such as redefining quorum in its rules or increasing existing penalties for breaking quorum. In fact, the House added fines for quorum breaking to its rules in 2023 to discourage the action. It also has the power to issue warrants for absent representatives.
And, as both scholars point out, the Texas Constitution already allows the state's Legislative branch to remove members on a two-thirds vote. The Texas House nearly underwent such a vote in 2023 against former House Republican Rep. Bryan Slayton; he resigned prior to the vote.
'There's no tradition in the United States … that if a member's conduct is egregious enough, any federal court, even of the same state or the same district, could just remove that member, even if he commits a crime, right? That's not how we do it,' Tillman said. 'God forbid we should expand that and allow the courts all over the United States to decide for themselves what sort of conduct constitutes expulsion. The very fact there's already several remedies provided by law in Texas, in my mind, raises serious doubts.'