Can a Texas legislator be removed from office for walking out to break quorum?

Plain-English summary

This opinion came out of the summer 2021 standoff at the Texas Capitol. The Governor called the Legislature into special session, and on July 12, 2021 a group of House members left the state so the House would lack the quorum it needs to pass laws. Representative James White, chair of the House Committee on Homeland Security and Public Safety, asked the Attorney General two questions: does a legislator have a constitutional right to break quorum, and does Texas law allow a determination that a legislator has vacated office?

On the first question, the AG declined to answer. The office has a policy, in place for more than sixty years, of not issuing an opinion on questions it knows to be the subject of pending litigation, because AG opinions are advisory while court decisions are binding. The constitutional questions about quorum-breaking were being litigated in several courts, and the Texas Supreme Court had just issued a mandamus in In re Abbott concluding that the Texas Constitution "empowers the House to compel the attendance of absent members." The AG directed Representative White to that ruling rather than opining itself.

On the second question, the AG explained the framework but stopped short of applying it to anyone. The Texas Constitution and the Election Code list events that cause a vacancy, such as death, resignation, removal, or acceptance of another office, but the AG found no statute setting out an exhaustive list of why a vacancy occurs. Looking to the courts, the AG noted that since 1873 Texas case law has recognized that an office may become vacant by abandonment, which it described as "a species of resignation" that turns on the officer's intent to relinquish the office, a question of fact. Whether a specific legislator abandoned office, the AG said, is a fact question for a court and beyond the scope of an AG opinion. The path forward is a quo warranto suit: the attorney general or the proper county or district attorney may sue in district court, and if the court finds a forfeiture by abandonment it shall enter judgment removing the officer, creating the vacancy when the judgment becomes final.

What this means for you

This describes what the opinion holds. It is the AG's August 2021 reading against the backdrop of then-pending litigation; constitutional interpretation and statutes can change, so confirm current law before relying on it.

Legislators and legislative staff

The opinion does not say a walkout forfeits a seat. The AG declined to opine on whether breaking quorum is constitutionally protected (pointing to the courts) and treated whether any particular member abandoned office as a fact question it would not decide.

Prosecutors and the attorney general's office

The opinion identifies the quo warranto statute as the mechanism. Under it, the attorney general or the proper county or district attorney may file suit in district court; the opinion describes who may sue and what a court must do if it finds a forfeiture, without saying any suit is warranted here.

Journalists and the public

The AG did not declare any seats vacant and did not say the members who left had abandoned office. The takeaway is procedural: removal for abandonment runs through a court judgment in a quo warranto action, not through an AG opinion or an automatic operation of law.

Common questions

Q: Did the AG say the legislators who walked out lost their seats?
A: No. The AG said whether a specific legislator abandoned office is a fact question for a court and is beyond the scope of an AG opinion.

Q: Why didn't the AG answer whether breaking quorum is a constitutional right?
A: Because the question was the subject of pending litigation, and the office's long-standing policy is not to opine on matters being litigated. The AG pointed to the Texas Supreme Court's ruling in In re Abbott instead.

Q: How could a legislator actually be removed for abandonment?
A: Through a quo warranto suit in district court brought by the attorney general or the proper county or district attorney. If the court finds the officer forfeited the office, it shall enter judgment removing the person.

Q: When would the vacancy occur?
A: Under Election Code section 201.024, when an officer is removed by a court or other tribunal, the vacancy occurs on the date the judgment becomes final.

Q: What is "abandonment of office"?
A: The AG quoted older Texas cases describing it as "a species of resignation," a relinquishment through nonuse that requires an actual or imputed intent to give up the office. Nonuse alone is not enough; the intent is inferred from the officer's acts and conduct and is a question of fact.

Background and statutory framework

The Texas Constitution requires two-thirds of each House to be present as a quorum to do business (art. III, § 10). The House has 150 members, so 100 must be present. Government Code sections 311.013 and 312.015 supply the general rule that a quorum is a majority unless the law provides otherwise. The Governor's authority to convene the Legislature for specified subjects comes from article IV, section 8(a).

For vacancies, the AG looked first to article III, section 13 of the Constitution and to Election Code sections 201.021 through 201.025, which fix the timing of vacancies caused by death, resignation, removal, or acceptance of another office, but found no provision listing every ground for a vacancy. Texas courts fill that gap: Honey v. Graham (1873) recognized abandonment as one way an office becomes vacant, and Steingruber v. City of San Antonio (1920) described abandonment as a voluntary relinquishment through nonuse that depends on the officer's intent. The removal mechanism is the quo warranto statute, Civil Practice and Remedies Code chapter 66: section 66.001(2) reaches an officer who does or allows an act that by law forfeits the office, section 66.002(a) lets the attorney general or the proper county or district attorney sue, and section 66.003(1) directs the court to enter judgment removing an officer it finds has forfeited the office. Election Code section 201.024 then sets the vacancy at the date the removal judgment becomes final.

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. III, §§ 2, 10, 13 (House membership; two-thirds quorum; legislative vacancies)
• Tex. Const. art. IV, § 8(a) (Governor may convene the Legislature for specific purposes)
• Tex. Gov't Code §§ 311.013, 312.015 (quorum is a majority unless otherwise provided)
• Tex. Elec. Code §§ 201.021–.025 (timing of vacancies, including removal under § 201.024)
• Tex. Civ. Prac. & Rem. Code §§ 66.001–.003 (quo warranto; who may sue; judgment of removal)

Key cases:

• In re Abbott, No. 21-0667 (Tex. Aug. 17, 2021) (Constitution empowers the House to compel attendance of absent members)
• Honey v. Graham, 39 Tex. 1 (1873) (a vacancy may be made by abandonment, "a species of resignation")
• Steingruber v. City of San Antonio, 220 S.W. 77 (Tex. Comm'n App. 1920) (abandonment turns on the officer's intent; a question of fact)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0382
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0382.pdf

Original opinion text

August 24, 2021

The Honorable James White
Chair, House Committee on Homeland Security & Public Safety
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0382

Re: Whether Texas law allows for a determination that a legislator has vacated office (RQ-0418-KP)

Dear Representative White:

You ask two questions about whether a legislator has a constitutional right to break quorum and whether Texas law allows for a determination that a legislator has vacated office.¹ Your questions arose in the context of the First Called Session of the Eighty-seventh Legislature, which began on July 8, 2021.² The Governor identified multiple subjects for the Legislature to consider during the special session. See Proclamation. On July 12, 2021, numerous legislators left the State for the express purpose of depriving the Texas House of a quorum, thereby prohibiting enactment of any legislation during the special session.³ The legislators stated they would not return to Texas until the thirty-day special session ended. As a result, the Legislature did not enact any legislation during the first called special session. The Governor convened the Second Called Session on August 7, 2021, and it is still in progress.⁴

¹ See Letter from Honorable James White, Chair, House Comm. on Homeland Sec. & Pub. Safety, to Honorable Ken Paxton, Tex. Att'y Gen. at 1, 5 (July 27, 2021).

² See Proclamation of the Governor (authorizing the Governor to convene the Legislature for specific purposes); TEX. CONST. art. IV, § 8(a).

³ Jeremy Wallace, Texas Democrats pledge not to return from D.C. until August, HOUSTON CHRONICLE, July 20, 2021.

⁴ See Proclamation of the Governor.

I. The Texas Constitution requires a quorum of two-thirds of each House's members to be present to enact legislation.

A public body, including a house of the Legislature, must have a quorum present to conduct business. Generally, a quorum is a majority of the members of the body fixed by statute, unless the law specifically provides otherwise for that body. See TEX. GOV'T CODE §§ 311.013, 312.015. Regarding the Legislature, the Texas Constitution provides: "[t]wo-thirds of each House shall constitute a quorum to do business." TEX. CONST. art. III, § 10. The House of Representatives consists of 150 members, and 100 members therefore constitute a two-thirds quorum. Id. § 2. Thus, at least 100 members of the Texas House of Representatives must be present to conduct most business.

In your first question, you ask whether a legislator has "a constitutional right to break quorum." Request Letter at 1. Since the submission of your question, litigation in multiple courts has arisen involving the constitutional rights of legislators who attempt to avoid a quorum.⁵ The Texas Supreme Court recently issued a mandamus related to one of these proceedings, concluding that the Texas Constitution "empowers the House to compel the attendance of absent members." In re Abbott, No. 21-0667, slip op. at 3 (Tex. Aug. 17, 2021). In so holding, the court directed the district judge to rescind a temporary restraining order prohibiting the arrest of the absent legislators. But the underlying litigation raising the constitutional issues remains pending.

It is the policy of this office to refrain from issuing an Attorney General opinion on questions that we know to be the subject of pending litigation. See Tex. Att'y Gen. Op. Nos. GA-0502 (2007) at 3–4; MW-205 (1980) at 1; V-291 (1947) at 5–6. This policy, which has been in effect for more than sixty years, is based upon the fact that Attorney General opinions, unlike those issued by courts of law, are advisory in nature. By contrast, court decisions are binding unless and until they have been modified or overturned by a higher court or until the law they construe has been amended. Consequently, when a legal matter is being litigated, the courts are generally the appropriate forum for resolving the issue. We therefore decline to issue an opinion in response to your first question but direct you to the Texas Supreme Court's recent ruling for guidance. See In re Abbott, No. 21-0667, slip op. at 12–15.

⁵ In Hinojosa v. Abbott, pending before the 261st District Court in Travis County, the legislators argue that the First Amendment to the U.S. Constitution prohibits infringement on their rights to speak and assemble outside of the House chamber. Plaintiffs' Original Verified Petition at 9, Hinojosa v. Abbott, No. D-1-GN-21-003760 (261 Dist. Ct., Travis Cnty., Tex. filed Aug. 9, 2021). Similarly, in Thompson v. Abbott, the absent legislators argue that efforts to compel their attendance for a quorum deprive them of their constitutional rights. Complaint at 5, Thompson v. Abbott, No. 1:21-cv-00690-RP (W.D. Tex. filed Aug. 6, 2021).

II. Texas courts recognize that a vacancy may occur by abandonment of office.

In your second question, you ask whether Texas law allows for a determination that a legislator has vacated office. Request Letter at 5. 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. We therefore look to the courts for guidance.

The Texas Supreme Court has long recognized that "[a] vacancy may be made by resignation, death, expiration of the term of office, abandonment, removal, or forfeiture," and that "[a]bandonment of an office is a species of resignation." Honey v. Graham, 39 Tex. 1, 7 (1873). 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.

Steingruber v. City of San Antonio, 220 S.W. 77, 78 (Tex. Comm'n App. 1920). Whether a specific legislator abandoned his or her office such that a vacancy occurred will be a fact question for a court and is beyond the scope of an Attorney General opinion. See id.; see also Tex. Att'y Gen. Op. No. KP-0231 (2019) at 1 (refraining from opining on fact questions).

III. A district court may make a determination that a legislator has forfeited his or her office due to abandonment and can remove the legislator from office, thereby creating a vacancy.

Texas law recognizes a public officer may be removed from office. See TEX. ELEC. CODE § 201.024 (providing for vacancy upon removal of office). Subsection 66.001(2) of the Civil Practices and Remedies Code establishes an action in quo warranto if "a public officer does an act or allows an act that by law causes a forfeiture of his office." TEX. CIV. PRAC. & REM. CODE § 66.001(2). 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.

S U M M A R Y

Texas courts recognize that a vacancy may occur by abandonment of office. Whether a specific legislator abandoned his or her office such that a vacancy occurred will be a fact question for a court and is beyond the scope of an Attorney General opinion.

Through a quo warranto action, a district court may determine that a legislator has forfeited his or her office due to abandonment and can remove the legislator from office, thereby creating a vacancy.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee