Be Careful What You Ask For

What a bunch of bullshit:

Gov. Greg Abbott on Tuesday asked the Texas Supreme Court to remove Houston Rep. Gene Wu, chair of the House Democratic Caucus, from office, an unprecedented escalation in Republicans’ efforts to resume business in the Legislature and advance new congressional maps.

Hang on, this could actually be funny, but first I have to get through this, because it ain’t all fun ‘n’ games.

First, the action to be filed here is called a quo warranto, and it’s a funky beast:

An action in the nature of quo warranto is available if:
(2) a public officer does an act or allows an act that by law causes a forfeiture of his office;

Sec. 66.002. INITIATION OF SUIT. (a) If grounds for the remedy exist, the attorney general or the county or district attorney of the proper county may petition the district court of the proper county or a district judge if the court is in vacation for leave to file an information in the nature of quo warranto.
(b) The petition must state that the information is sought in the name of the State of Texas.
(c) The attorney general or county or district attorney may file the petition on his own motion or at the request of an individual relator.
(d) If there is probable ground for the proceeding, the judge shall grant leave to file the information, order the information to be filed, and order process to be issued.

The relief provided by statute is:

Sec. 66.003. JUDGMENT. If the person against whom the information is filed is found guilty as charged, the court:
(1) shall enter judgment removing the person from the office or franchise;
(2) shall enter judgment for the costs of prosecution in favor of the relator; and
(3) may fine the person for usurping, intruding into, or unlawfully holding and executing the office or franchise.

The Texas Supreme Court is not a trial court nor a court of first impression. Not for a quo warrant action. The statute explicitly places jurisdiction for such an action in “the district court [highest level of trial court/court of general jurisdiction in Texas] of the proper county.” Which means venue is in the county of the defendant’s residence. Even if Wu lives in Travis County (Austin is the county seat, and the Supreme Court is there), jurisdiction is in the district court, not the highest civil appellate court.

Abbott seems to think if he belches smoke he’ll puff up like a fearsome toad. But the statute defines jurisdiction and venue, and doesn’t define “an action…that by law causes a forfeiture of his [sic] office.” That requires findings of fact. That means it requires a trial, and Wu would be entitled to a jury trial. He’s also entitled to service of process, and 20 days (IIRC) to answer, as well as notice of hearing and opportunity to respond. Unless Abbott thinks he’s gonna get a TRO to force Wu back to Austin. But all that gets, at best, is a hearing within 10 days where Wu can appear through counsel.

Abbott is not going to get Wu before this all becomes moot. There are 16 days left in this special session. A new one resets all clocks and votes on House rules for appearance. 

I don’t think Abbott could get a TRO on grounds Wu is in Illinois. What constitutes a “forfeiture of office “ would require opportunity to present facts and defenses, and make legal arguments. In a district court that would take more than 16 days. (Wu is allowed more than 16 days to file an answer to a forfeiture suit. And that hasn’t been filed in the proper court, brought by the proper party (the AG, not Abbott), or had service issued. By the time all that’s done, the session is over , and the issue is moot. Oh, you could amend the petition to include a new instance of forfeiture, but mootness is still an issue, because this is not a regular civil case where you file with the clerk and get service issued immediately. You’ve got to have a hearing first:

If there is probable ground for the proceeding, the judge shall grant leave to file the information, order the information to be filed, and order process to be issued.

I mentioned a TRO earlier, because that’s the only order one can generally get from a court without the presence of the other party. But I would assume due process would require a hearing with both parties, and briefing on the legal issues. 16 days would be up PDQ, getting all that arranged. Unusual to let a defendant argue against filing and service, but a TRO follows filing; it doesn’t precede it, and it’s allowed only because it ends in 10 unless extended after a hearing with all parties at least having an opportunity to attend. Perhaps it’s treated as civil equivalent of probable cause, but there, too, the defendant can ask for a hearing at arraignment (Perry Mason wins all his cases at those hearings). So it seems logical a defendant could argue for a chance to challenge the probable grounds evidence and legal argument. Especially since “act of forfeiture” is not defined in the statute, but is probably established, to some degree, in case law. And the case law seems to point this way:

Chad Dunn, a former attorney for the Texas Democratic Party, said proving abandonment of office would require showing that the member had failed to perform the duty of their office and intended to relinquish the seat, both of which he argues are not evident in a quorum break.

Yeah, you’re not gonna prove that in 16 days.,

Here’s where the fun part starts: this has prompted a public spat between Abbott and Costello Paxton:

Attorney General Ken Paxton, who threatened to file similar legal actions earlier in the day against multiple House Democrats, followed Abbott's emergency petition by sending his own letter to the state Supreme Court hours later, in which he argued that Abbott lacked the authority to request the removal.

Paxton wrote that while he "appreciates the Governor’s passion" for restoring a quorum, state law permits only the attorney general or a local county or district attorney to bring what's known as a quo warranto proceeding, which seeks a member's removal on the grounds that they have abandoned their office.

In the letter, Paxton said he would take action against the absent legislators if the House continued to lack a quorum on Friday, the deadline set by House Speaker Dustin Burrows.

Paxton has the same time line problems Abbott does, and the same problems proving forfeiture. Paxton is never going to prove 50 legislators intended to relinquish their seats, and if he could prove it before November, Abbott would have to call 50 special elections, and he wouldn’t have a quorum until after they were held. Hell, one strategy might be to give Abbott what he wants, and not challenge the forfeiture actions. Abbott and Paxton would be the dogs who caught the car. Now what?

Seriously. The 50 could come home, run in their specials, and Abbott couldn’t hold a session until after that. Time it right, and it could ruin Abbott and Costello Paxton. 50 suits would require 50 hearings in 50 counties just to find probable grounds, before service could even issue. Answer after 20 days, then decline to contest. Abbott then has to arrange 50 special elections in accordance with the law, then start all over again. Wait a minute, I’ve got this:

Sec. 203.004. DATE OF ELECTION. (a) Except as provided by Subsection (b), a special election shall be held on the first uniform election date occurring on or after the 36th day after the date the election is ordered.
(b) If the election is to be held as an emergency election, it shall be held on a Tuesday or Saturday occurring on or after the 36th day and on or before the 64th day after the date the election is ordered.

So, back of the envelope: 45 days to file the request, show probable grounds, issue service, and allow for answers. That’s probably too conservative: even Paxton’s office can’t get to 50 judges on one day. Or get 50 uniform hearing dates, decisions in all 50 on the same day, issuance and service simultaneously, etc. But 45 days, arguendo. 

We’re already into October on this very conservative timeline. Now hearings and trials, and acquiescence (why waste too much money on lawyers?), and it’s Hallowe’en. If 50 courts are all in Abbot’s hip pocket. Pro tip; they aren’t. Oh, and 30 days before the 50 judgements becomes final. 30 days for each individually, depending on when the judgements are filed. Filing deadlines (early November, IIRC) for the ballots are upon us before Abbott can even set 50 special elections. And he has to call special elections before he can call a special session. No quorum, remember? Abbott did that. Or Paxton. Same difference.And wait 36 days, plus, for those elections. 50 of them, called no earlier than when judgements become final. Each one.

Win-win.

This is a very top of my head strategy, and a Rube Goldberg one, I freely admit. But it would hoist Abbott and Paxton on their own petars. (No, that’s correct. I don’t have time to explain it now.)

Pretty sure the Texas Supremes are gonna take Paxton’s offer to stay out of this. And if the Democrats really want to deny Trump his redistricting, staying across the Red River until November ain’t gonna work. It never has. They gotta come back sometime, and the Speaker will just lock ‘em in next session. Call Abbott’s bluff, and make him learn the lesson of being careful what you ask for. 😈