Analysis Of Briefs In Speaker Authority, Removal Opinion Request

Yesterday was the final day for interested parties to submit briefs to the Texas Attorney General concerning the authority of and procedure for removal of the Speaker of the Texas House prompted by a request for an opinion [request, .pdf] on these issues requested by Representatives Jim Keffer and Byron Cook.

To date, several briefs and letters to the OAG offering opinions on the issue have been made public, though none of those submitted by any Democrats have been disclosed. The Attorney General’s office initially asked 29 individuals and groups for briefs, but later allowed any interested parties to submit briefs.

Via Texas Weekly, has reviewed all of the briefs submitted so far. The briefs are clearly divided into two different camps. First, there are the short letter briefs of Craddick allied legislators like Reps. Jodie Laubenberg and Dan Flynn (and the brief of Leo Berman and several other legislators) which are highly critical of the legislators who tried to remove Craddick and essentially tell the Attorney General’s Office that the OAG has no authority to interpret the rules of the Texas House of Representatives. Second, there is a group of briefs that include the Pitts brief which argue the Attorney General’s office should answer the four questions posed in the Keffer-Cook request.

First, we’ll turn our attention to the brief of Warren Chisum (R-Pampa), which is more of a commentary letter than a brief. Chisum’s brief specifically tells the Attorney General he is not authorized to interpret the rules of the House and accuses Keffer and Cook of abusing their authority in making the request.

From the Chisum brief:

House rules are not law and you are being asked to make determinations about legislative rules. It is my belief that the House rules are clear and that the requests to you are mususes of a chairman’s authority to request A.G. opinions in that you are being asked, for political reasons, to analyze long-standing procedures that are the exclusive business of the legislative banch.

First and foremost, there is no such thing in the House rules as a “motion to vacate the chair.” It has never existed, and for good reason. Putting aside for a moment the plain language of the Texas Constitution, which provides for the speakers election to occur when the house first assembles, common sense makes it apparent that creating a procedure to remove and replace speakers during a session could have serious adverse consequences.

While Chisum is correct in that a motion to vacate the chair is not mentioned in the House Rules, precedents including Thomas Jefferson’s parliamentary procedure manual and Congressional precedent to address the issue. And, precedent exists in the House because a speaker was removed by a motion to vacate the chair by more than 100 years ago. It is also highly unlikely that allowing the replacement of a speaker would have “serious adverse consequences.” For more than 100 years, members of the House have known they could remove a speaker by this vehicle, but it has only come into play twice: concerning Gib Lewis and concerning Tom Craddick. Clearly, that it only came into play in those two instances shows that the members of the Legislature are well aware of the type of situations in which such a motion is appropriate and would likely not abuse motions to vacate the chair.

The brief of Rep. Dan Flynn (R-Van), another Craddick ally, echoes similar sentiments:

I fully support the rules passed by the House which gives the Speaker the right to recognize or not to recognize for any motion; otherwise, chaos would erupt each time one disagreed with the ruling of the chair. Mob mentality is very diffrent from majority rule, and the House Rules are designed to avoid the chaotic nature of mob mentality.

The rebellion to unseat Speaker Craddick had nothing to do with legitimate issues. I am a public servant and as such, I will defend anyone’s right to seek public office, including the office of Speaker of the House. From day one since Tom Craddick was elected Speaker, the opposition never accepted his leadership nor governance. Their method of operation has been to create as much chaos as possible, ending in elicit obstructionism. It was this opposition that planned the nonsensical tactics to vacate the chair. In order to achieve this end, the opposition worked with a few Craddick supporters who willingly joined to obstruct an progress of the Texas House.

That Flynn notes, “the opposition never accepted his leadership nor governance,” is interesting, given that two Republicans requested the opinion and that Republicans were at the center of the attempts to remove Craddick. Likening a removal of the speaker to “mob mentality” is also a bit of a reach.

A more formal brief was filed by Representatives Charlie Geren, Todd Smith, Mike Krusee, Pat Haggerty, Brian McCall, and Kirk England. In their brief, the legislators specifically addressed each question posed by Keffer and Cook. Before we look at the brief, let’s take a quick look at the four questions for reference:

Question 1: “Are the Speaker of the Texas House of Representatives and the President Pro Tempore of the Texas Senate ‘legislative officers’ as recently held by the Texas Supreme Court, officers who serve at the pleasure of the membership … or are they ’state officers’ subject to removal only as provided in … of the Texas Constitution?”

Question 2: “If you conclude that, contrary to the holdings of the Texas Supreme Court and this Office, the Speaker of the Texas House of Representatives and the President Pro Tempore of the Texas Senate are subject to removal only by impeachment or other trial and removal proceeding under … the Texas Constitution, what is the effect of the impeachment of either of these officers? That is, does impeachment only remove them from the legislative office of Speaker or President Pro Tempore, or does it expel them from membership in the House/Senate in a manner different from, and inconsistent with … the Texas Constitution?”

Question 3: “If, after the regular legislative session has commenced, a Speaker chosen by the members of the House is removed from that office by any legal means, does the House then have the power to select a new Speaker, or is it required to continue its operations in the absence of a Speaker, in apparent conflict with … the Texas Constitution?

Question 4: If the rules adopted by the Texas House of Representatives give the Speaker of the House unlimited discretion to refuse to recognize members for purposes of presenting any motion whatsoever … do those rules effectively give the Speaker unlimited ability to prevent his removal (by simply refusing to recognize members for the required motions)?”

Here is how the Geren brief addressed Question 1:

The reasoning is equally applicable to the scope of imeachment under the Texas Constitution. As the Supreme Court has noted, “[w]hen the Constitution of Texas was adopted, it was done in the light of, and with a full knowledge and understanding of, the principles of impeachment as therefore established in English and American Parliamentary procedure. The Constitution in this matter of impeachment created nothing new. By it, something existing and well understood was simply adopted.” Ferguson v. Maddox, 114 Tex. 85, 97, 263 S.W. 888, 892 (1924). Accordingly, it should be not imputed that they had any intention to require impeachment of legislative officers. Based upon the foregoing, the Representatives contend the speaker of the House is not impeachment under Article XV and that the first question should be answered in the negative.

In other words, the Geren brief says the Speaker is a legislative officer, not a statewide officer subject to impeachment.

On question 2, the Geren brief brings to light some interesting points that show that show why impeachment is not a viable option for the Speaker:

The argument against including the Speaker of the House within the class of officers subject to article XV, section 7 is even stronger under the Texas Constitution. First, that provision mandates a “trial,” which the Supreme Court has determined requires, “a hearing of evidence according to rules of law, and the rendition of a judgment by some legally constituted judicial tribunal of competent jurisdiction.” Knox, 141 S.W.2d at 701. Because the Constitution has not granted the House of Representatives the power to sit as a judicial tribunal, if the Speaker were subject to this provision then the Legislature would have to pass a statute providing for his removal by trial in front of some other body that has the power to act as a judicial tribunal. As this mode of removing legislative officers was completely unknown in either English or Ameircan law, see Op. Me. Att’y Gen. No 94-1, it would make no sense to impute such an intention to the framers of our Constitution. Rather, as with those constitutional provisions at the state and national level which deal with impeachment, the term “officers” should not be read to include those members selected to serve at the pleasure of their respective houses.

One of the most argued topics in all of the briefs concerns whether the Speaker is or is not a “statewide” officer subject to impeachment. In Craddick’s brief and in Keel’s brief, those two contend that the Speaker is subject to impeachment, and rely on various precedents (or distortions thereof) to make those claims. Footnote 4 to the Geren brief, however, makes an important point about those cases:

Although the Texas Supreme Court has a long line of cases defining what constitutes a public officer under various provisions of the Constitution, these cases are of no real value in determining the present question. The definitions in those cases are intended to distinguish between an officer and an employee, and not to determine whether the framers intended the Speaker to be an officer such that his removal would require a judicial trial in a forum other than the House.

A very important distinction, indeed.

Additional good points are made on Question 3:

If the Speaker of the House is not subject to removal by impeachment or by trial pursuant to statutory authority, then he is either not subject to removal or the authority for his removal lies elsewhere. The Representatives contend that pursuant to the plenary power given the House over its own affairs by sections 8, 9 and 11 of Article III of the Texas Constitution, it may remove any of its officers, including the Speaker, by a majority vote.

As with the date for electing the Speaker, the Legislature has also determined that the Constitution provides no fixed end date for the Speaker to serve in that office. The current constitution provides no fixed end date for the Speaker to serve in that office. The current Constitution contains no set term of office for the Speaker. The statutes relating to the organization of the House, however, provide that the Secretary of State, or in his absence the Attorney General, will preside over the House until the election of the Speaker. Tex. Gov’t Code SS 301.003(a), (b); .006(a).

[...]

This distinction is made clear when one looks at he presiding officer of the Senate, the Lieutenant Governor. This officer is elected for a four-year term and during that time has the primary responsibility of serving as the President, or presiding officer, of the Senate.

Ordinarily, in the absence of a term for a particular office, the Constitution provides that the term shall not exceed two years. Tex. Const. art. XVI S. 30(a). However, it is clear that the position of Speaker is not an “office” under the provision. In reviewing the term of office for the presiding judge of an administrative judicial district, this office opined that this position did not constitute an “office” under Article XVI, section 30. Op. Tex. Att’y Gen. No. M-305 (1968). Relying on prior precedent which held that the office of presiding judge was not a “civil office of emolument” under article XVI, section 40(a), the opinion stated that, “the position of presiding judge of the administrative district [is not] an office that a regularly elected district judge is forbidden by the Constitution to hold and exercise. ‘Its functions are judicial in nature, are not inconsistent with the constitutional duties of the district judge, and should, in our opinion, be regarded simply as superadded duties that the Legislature was authorized to require districti judges to perform’” Id (quoting Eucaline Medicine Co. v Standard Inv. Co, 25 S.W.2d 259, 261 (Tex. Civ. App–Dallas 1930 writ ref’d).

The Geren brief also goes outside the box a bit and looks to how other states have handled similar situations. In particular, the brief cites an interesting Alaska case concerning the removal of the speaker of their house in which the state supreme court ruled that the state House has the authority to select its own officers and employees. Still more:

In addition to its authority to chose its Speaker, the House has the exclusive authority to “be the judge of the qualifications and election of its own members” and to “punish members for disorderly conduct, and, with the consent of two-thirds, expel a member.” Tex. Const. art III, SS 8, 12.

Here’s some of what the Geren brief had to say on Question 4:

The framer’s acknowledgment that the Constitution’s provision for gubernatorial succession might require this eventuality can in no way be interpreted as a denial of any removal power that resides in the House based upon its plenary powers over its members. Because of the significant constitutional difference between the Speaker and the President pro tempore, the provisions for their selection would not be interpreted together nor need any harmonizing, in that they are not “provisions affecting the same thing.” Duncan v. Gabler, 147 Tex. 29, 234, 215, S.W.2d 155, 159 (1948).

Because the Constitution gives the majority of the House the power to remove a Speaker, its rules cannot give a veto to any single member over the use of that authority.

This is important given that there are some who argue that the removal of Ira Hobart Evans cannot be a precedent for removal of a speaker because it was done under a different state constitution. There remain too many different constitutional differences between the Speaker and other officers to conclude impeachment is the right way to go.

Rep. Jodie Laubenberg also argued that allowing for a motion to vacate the chair would be detrimental to the House:

The proceedings of the Texas House of Representatives would be changed and politicized in the worst way. It would constitute a grave disservice to both members and our state’s taxpayers, only to suit the immediate interests of a handful of politicians. I am unaware of any House rule, statute, constitutional provision, practical consideration or policy argument that can excuse the position they have taken.

Secondly, the House Rules giving the speaker the authority to decline recognition to a member serve the valuable purpose in preventing abuses to our legislative process. The rules ensure that no individual member may single-handedly deny the other 149 members of the House the ability to work for their constituents….Absolute rule of law, as designed by the Texas Constitution, is necssary; a hand to enforce that rule of law is equally necessary.

There is a big difference between the authority to recognize and the “absolute rule of law,” and I’m not sure how Laubenberg can even make such a statement. The Speaker’s rulings are not law. Further, her own argument that the rules provide that no member can single handedly deny the other House members their right to work for their constituents can easily be turned around: Craddick denied this to other members as Speaker by refusing to recognize the motion to vacate.

The brief of Rep. Leo Berman, Betty Brown, Fred Brown, Bill Callegari, Frank J. Corte, John Davis, Rob Eissler, Dan Flynn, Linda Harper-Brown, Charlie Howard, Carl Isett, Jim Jackson, Jim Murphy, Beverly Woolley, and Bill Zedler was also decidedly pro-Craddick and told the AG he had no authority to rule on the first three questions:

Your analysis in your official capacity is limited to only a discussion of whether the Texas Constitition permits the political or personal removeal of a speaker. The Office of Attorney General may opine on matters of constitutional and statutory construction, but is specifically proscribed, as a matter of the Executive Department, Tex. Const. Art. 4, Section 1, from interfering in the rules, process, or procedure of the Senate or House of Representatives, Tex. Const. Art. 2, Section 1. Accordingly, matters of rule construction and interpretation are exclusively and uniquely to be determined by each separate body.

You are left only to opine on whether the Texas Constitution allows for the removal and replacement of a Speaker during a legislative session.

Interesting.

Rep. Bill Callegari offered similar opinions in his brief:

While I would welcome your insights into this issue, I believe that, as a matter of propriety and legislative perogaitive, this issue be left to the House to resolve.

Question 3 of the request focuses on the options before the House upon the removal of the Speaker by “any legal means.” For purposes of clarification, I assume that “any legal means” may include death, illness, or even resignation, in addition to impeachment as contemplated in the request.

Though Callegari surely didn’t mean it, the inclusion of “death” in the “any legal means” clause makes one think of the play Julius Caesar because of the way that statement is worded.

Finally, here’s what Rep. Jim Pitts offered in his anti-Craddick brief. On Question 1:

In short, there is simply no legal authority to support the notion that a person who is selected as Speaker by the House when it first assembles is entitled to remain in that position for two years. In fact, there are numerous authorities that stand for the opposite proposition:

A speaker may be removed by the will of the house and a and a Speaker pro tempore appointed.” (Jefferson’s Manual, 2 Grey, 186. 5 Grey, 134).

It will be especially interesting, if the AG actually answers the four questions, how much reliance, if any he makes upon the Jefferson text, which is the foundation of a American legislative parliamentary procedure.

On Question 2:

As previously noted, Article 15, Section 7 does not apply to the office of Speaker because the Speaker is not a “state officer.” In fact, such a construction of the Texas Constitution would conflict with Article 3, Section 11, which allows the House to
prescribe its own rules for the expulsion of members, including members of the House.
If, arguendo, there is such a conflict, the Texas Supreme Court has established a clear standard for resolving the conflicting constitutional provisions:

“In construing apparently conflicting constitutional provisions, a general provision must yield to a special provision.” Rather, a Speaker may be expelled under the Texas Constitution from membership in the House like any other member. Article 3, Section 11 specifically addresses procedures for expulsion of members of the legislature by their respective houses and stands for the proposition that a member may be removed from the legislature by a process other than impeachment by the House and trial by the Senate.

On Question 3:

None of these provisions preclude the House from selecting a new presiding officer if the office of Speaker is declared vacant. Moreover, none of these provisions support the contention that the house may not create a vacancy in the office of Speaker by a simple majority vote.12 In other words, inherent in the right to select a presiding officer is the right of the body to remove that presiding officer and the framers of the Texas Constitution and subsequent legislatures have declined to reject longstanding parliamentary law which prescribes the resolution of these issues by the membership:

Throughout the years, the members have consistently adopted rules that give the Speaker the power to control the order of business and other important functions of the House. The delegation of this power does not, however, bestow absolute authority upon the Speaker to determine whether a member will be recognized on any matter, including a question of privilege. I simply do not believe that the people of Texas sent their representatives to the Texas House to represent their districts and conduct the state’s business while having their interests subjected to the “caprice or passion” of the Speaker[.]

Interesting points, but probably moot; I seriously doubt the Attorney General will actually decide he has the authority to intervene. And, if he does, it is likely litigation by pro- or anti-Craddick forces would result to challenge the opinion depending upon how the AG rules.

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