Sunday, October 17, 2021

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Texas Dem Gets Order Stopping Arrest but Ted Cruz and Jonathan Turley Show Why That Will Likely Fail


Texas Democrats are trying to pull whatever tricks they might have out of their bag as their options are diminishing, forcing House Democrats back to have a quorum on the election integrity bill.

As we previously reported, the Texas Supreme Court ruled in favor of Gov. Greg Abbott’s right to veto their funding so that their pay and that of their staffs stops come the end of September if they don’t come back. On top of that, the effort was also cracking as some of the Democrats came back and actually showed up on the floor on Monday, almost enough to break the quorum.

The one thing the Democrats had in their favor was a judge who issued a restraining order to block the possibility of arrest. But then the Texas Supreme Court issued a stay blocking that restraining order, clearing the way for them to be arrested. Yesterday the arrest warrants were served at the Democrats’ offices, although none of them were present in those offices apparently.

One of the most vocal of the runaway Democrats, Gene Wu, filed an action in Harris County criminal district court to stop the civil warrant arrest that would act to have him do the job that he had sworn to do.

From Houston Chronicle:

The rare action over a civil warrant led to some head-scratching Wednesday in the 230th Criminal District Court, including from presiding Judge Chris Morton. After a brief recess, he determined that he did have jurisdiction to grant a “writ of habeas corpus” in the case, essentially trumping the state’s civil warrant for Wu and releasing him from potential custody until the court determines the legality of the warrant. [….]

Morton on Wednesday acknowleged the unusuality of the case before him. He questioned whether he has jurisdiction in a criminal court, and whether his court had jurisdiction over the sergeant-at-arms who distributed the arrest warrants to the 52 Democrats’ offices Wednesday at the Capitol.

He also told Wu’s attorneys that they should have contacted the Texas Attorney General’s Office, and his decision could change depending on their response.

“This is a novel issue to say the least,” Morton said.

Seems like it might be rather important to allow the opposing side their ability to respond. So expect this to change shortly.

Meanwhile, as to the question of legality, we noted that the Texas Supreme Court lifted the stay, allowing for the possibility of arrest, which seems instructive albeit not a decision on the merits. There’s virtually no case law on the question since it hasn’t come up often, but as both Sen. Ted Cruz (R-TX) — the former Solicitor General for the state of Texas — and George Washington University law professor Jonathan Turley have observed, there’s a specific constitutional provision that provides for such an arrest.

Politifact claimed it was false for Cruz to say that there was clear legal authority for the arrests.

Turley points out how that’s wrong as he points to the specific Texas constitutional provision that allows it.

However, Cruz is right to claim that there is clear legal authority if he was relying on the constitution.

The legislature has relied on that authority for its own rule allow for a Motion for Call of the House, directing the House’s sergeant-at-arms to order state police to force the wayward members back to the floor. Rule 5 (Sec. 8) specifically refers to an “arrest”: “All absentees for whom no sufficient excuse is made may, by order of a majority of those present, be sent for and arrested, wherever they may be found.”

So, once again, the law would be against the Democrats but they’re stalling for time.




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