Signed warrants produce no arrests of Texas Democrats for now, but perhaps a hardened resolve to stay away

Members voted on a motion by State Rep. Will Metcalf, R-Conroe, to instruct the Department of Public Safety to detain absent members and return them to the House floor until a quorum is present on Aug. 10, 2021.

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Even with the fresh threat of arrests hanging over them, a majority of House Democrats still refused to show up at the Texas Capitol on Wednesday.

On Tuesday night, House Speaker Dade Phelan, R-Beaumont, took the extraordinary step of signing 52 civil arrest warrants for the missing Democrats, many of whom fled the state last month for Washington, D.C., to block the GOP elections bill.

But instead of prompting absent Democrats to return to the chamber on Wednesday as it gaveled back in soon after 10 a.m., the warrants were met by lawmakers from the minority party doubling down in their intentions to fight tooth and nail to extend their now weekslong quorum break.

“That's why we didn't go back,” state Rep. Michelle Beckley, D-Carrollton, who remains in Washington, said later Wednesday. “We knew this was going to happen.”

Beckley told The Texas Tribune that “there’s been talk of leaving again,” referring to some of her colleagues who returned to Texas this week as the House inched closer to regaining enough members to start up business.

Meanwhile, it’s still unclear how far Phelan and Republican leadership plan to take the arrests, and there remains debate about the limits of law enforcement’s authority to detain lawmakers who are not accused of committing crimes.

Phelan’s office said Wednesday that the speaker will continue to keep all options under House rules available to him as Republicans push to regain a quorum.

“Speaker Phelan has stated clearly that every option provided by the House Rules that members approved unanimously is on the table,” Enrique Marquez, a Phelan spokesperson, said in a statement to the Tribune. “Speaker Phelan looks forward to seeing his colleagues to move forward with the people's business.”

The 52 warrants were turned over Wednesday morning to the House sergeant-at-arms, who gets to decide whether to tap law enforcement to help track down those absent lawmakers.

On Wednesday, it didn’t appear as though state troopers had been deployed, and a spokesperson for the Texas Department of Public Safety did not respond to a request for comment.

Copies of the warrants were distributed to Democratic representatives Wednesday morning in emails from House sergeant-at-arms Michael Black, who offered to "assist" members in "making any necessary arrangements" to be present.

"I respectfully request that you appear voluntarily in the House chamber today and report to the Journal Clerk so that your presence can be recorded in the Journal and the House can proceed with its business," Black wrote.

Later Wednesday, Black and other House sergeants delivered the warrants to members’ offices, according to footage from KXAN and The Dallas Morning News, reading off scripts that asked whether the lawmaker was at the Capitol and requested they reach out should they need help returning to the chamber floor.

The arrest warrants were signed after House members voted overwhelmingly to authorize law enforcement to go after the missing Democrats, as part of a procedural move known as a “call of the House” in an attempt to regain quorum.

Though state authorities do not have jurisdiction to detain Democrats still in Washington, a number of lawmakers have returned to Texas in recent days. If lawmakers are arrested, they would not face criminal charges or fines and could only be brought to the House chamber.

The elections legislation that the absent Democrats are aiming to block would outlaw local voting options intended to expand voting access, further tighten the voting-by-mail process and bolster access for partisan poll watchers, among several other changes to state elections. Republicans have championed the proposal as “election integrity” that would bring what they argue are much-needed reforms to the state’s voting system, while Democrats and voting rights groups have criticized the proposal as a vehicle that would harm marginalized voters in the state.

At least one Democrat said he has shielded himself against the warrants, at least for the time being: Gene Wu of Houston, who on Wednesday was granted an order by a state district judge to temporarily avoid arrest if law enforcement tracks him down. The lawmaker said in a statement that he and his legal counsel were working to grant that same protection for his quorum-busting colleagues.

“The battle is far from over,” Wu said, “but we are fired up and ready to keep on fighting.”

But Attorney General Ken Paxton told the Chad Hasty Radio Show on Wednesday that he'd fight Wu's protective order just like the state had fought a previous restraining order by a Travis County state district judge to block the arrest of other Democrats.

"The same thing will happen in Houston," Paxton said of Wu’s order. "If we have to take it to the Texas Supreme Court, we'll do it."

Earlier this week, a Travis County judge granted 19 House Democrats a temporary restraining order that would bar their arrest, but it was voided by the Texas Supreme Court on Tuesday. Those Democrats plan to push forward with their request for a temporary injunction in a Travis County court on Aug. 20. If granted, the injunction could again grant them protection from arrest.

Republicans have mainly applauded Phelan for signing the warrants. State Rep. Greg Bonnen of Friendswood, who chairs the powerful budget-writing House Appropriations Committee, said “the damage [the quorum-busting Democrats] have brought upon the [Legislature], and the great State of Texas, must end now.”

“We are not the federal government,” Bonnen tweeted Wednesday, “nor will we allow our proud institution of the Texas House of Representatives to become its reflection.”

Over 50 Democrats left the state in July to help prevent the passage of a controversial GOP voting bill filed during the first special session, but Democrats are no longer disclosing how many members are still in Washington.

Just 18 Democratic members were seen in a picture posted Wednesday afternoon by state Rep. Jasmine Crockett, D-Dallas, on the steps of the National City Christian Church, located across the street from the hotel where Democrats have been staying. Representatives for the Democrats who stayed behind in Washington indicated the picture did not include every member still there.

It’s unclear what Democrats still in Washington hope to accomplish by remaining in the nation’s capital aside from perhaps continuing to shave days off the second 30-day overtime round that began Saturday.

During the first special session, members met in person and virtually with White House officials and Capitol Hill leaders to push Congress to act on a pair of federal voting rights bills that would preempt much of Texas Republicans’ priority legislation.

Those hopes were stymied late Tuesday after Texas’ junior senator, Republican Ted Cruz, blocked a last attempt in the Senate to vote on one of the bills before lawmakers left town. The U.S. House could take up its version of separate legislation in late August, which would be earlier than originally anticipated — and a victory for Texas Democrats, according to members such as state Rep. Chris Turner of Grand Prairie, who chairs the House Democratic Caucus.

“There is no question that Texas House Democrats’ hard work the last month has accelerated the timeline in Washington and sparked a renewed sense of urgency,” Turner said in a statement Wednesday, noting that Democrats “will keep fighting with everything we have to stop Republicans from undermining our democracy.”

State Rep. Carl Sherman, D-DeSoto, who was among those pictured in the photo in Washington but has declined to confirm his location, said he was being treated like a fugitive for fighting for his constituents’ right to vote.

“When you're obsessed with doing whatever it takes to change our democracy, you're willing to arrest people,” he said of Republicans, who dominate the House. “That's their mode of operating. I wish it wasn't so. I pray for our democracy.”

Meanwhile, many of the members who have departed from Washington have not divulged their locations — though several of the absent Democrats have said they have no plans to head for the House just yet.

“I clearly feel very strongly about this issue,” state Rep. Jon Rosenthal, D-Houston, told The Texas Tribune before the House gaveled in Wednesday morning. “To me, staying out is doing the job of protecting the voting rights of my citizens.”

While the House rules say absent lawmakers without excused absences could be "sent for and arrested," it is unclear whether law enforcement officers could forcibly return lawmakers to the Capitol against their will. The quorum busting lawmakers have not broken any criminal law, only the House rules, and the issue has not been ruled on by state courts.

"It's a completely blank slate, it's never been interpreted or adjudicated," said Randall H. Erben, an adjunct professor at the University of Texas Law School and a former legislative director for Gov. Greg Abbott.

"If history is any guide, hopefully we won't have to," he added, noting that several Democrats had already returned to the chamber.

When the Democrats last broke quorum in 2003, lawmakers returned to the Legislature on their own, so the issue never came to a head.

When the so-called "Killer Bees," a group of liberal senators, broke quorum in the Senate in 1979 to block the passage of an elections bill, Lt. Gov. Bill Hobby ordered law enforcement officers to find the lawmakers and return them to the chamber.

The senators hid out in a garage to stop a bill that would have split primary elections in the state to allow conservatives to vote for a Republican candidate for president in an earlier primary and then participate in a later Democratic primary where they could elect conservative Democrats to state and local offices without sacrificing a conservative vote in the presidential race.

But even when Department of Public Safety troopers were sent by Hobby to arrest Sen. Gene Jones of Houston in his home, where he was visiting his granddaughter, law enforcement officers never met a state lawmaker.

They arrested Clayton Jones, the senator's brother, who was then transported to Austin. The senator jumped the fence behind his home and escaped while the Texas Rangers arrested his brother.

Patrick Svitek contributed to this report.

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