The Lawsuits to Expel Texas’s Democratic Lawmakers Lack Any Support

Last week, Democratic members of the Texas House of Representatives fled the state, preventing the house from having a quorum and blocking the legislature from carrying out a gerrymander of the state’s congressional districts that would likely create five new Republican seats.

In response, Gov. Greg Abbott (R) filed a lawsuit last Tuesday in the Texas Supreme Court, asking the justices to declare that state Rep. Gene Wu (D) had “abandoned” his seat and seeking to have Wu’s seat vacated. That Friday, Texas Attorney General Ken Paxton (R) filed his own lawsuit asking the court to expel 13 Democratic lawmakers who had left the state. (Paxton said in a letter to the court on Tuesday that the Texas Constitution and state court precedent allow only the attorney general to bring the suit, not the governor.)

The lack of legal support for these lawsuits is stunning. Not only is their claim that the lawmakers abandoned office self-contradictory, but there are serious questions about whether the Texas Supreme Court can hear these cases at all. On both the merits and jurisdictional issues, Abbott and Paxton rely on paradoxical, unsubstantiated arguments that fall apart with the slightest examination.

The Lawmakers Didn’t Abandon Their Offices

Abandonment, as Texas courts have noted, requires “the failure to perform the duties pertaining to the office . . . with actual or imputed intention on the part of the officer to abandon and relinquish the office.” Paxton parrots this standard in his filing but fails to demonstrate how it’s met here.

To be clear, while abandonment certainly can be a cause for vacancy, its invocation has historically been in much more colorful circumstances — like where a public official responsible for state funds embezzled the funds and then absconded from the state.

It’s absurd to suggest that the Democratic lawmakers are intending to relinquish their offices. Instead, they are deliberately using the powers of their office to “defend their constituents’ representation.” Suggesting that they have, by doing so, evinced any intent to relinquish their offices is nonsensical.

It’s unclear there is any precedent in any state for the argument Abbott and Paxton are making, and they don’t cite any. For example, Paxton relies on a 19th century treatise on public officers, which establishes the broad proposition that abandonment can be a cause of a vacancy. But the treatise deliberately distinguishes cases involving “temporary” refusals to perform duties — which Paxton hasn’t even established would include breaking a quorum — and refusals for “so long a period” that they “warrant the presumption that [the officeholder] does not desire or intend to perform the duties of the office at all.”

Paxton also points to the treatise’s suggestion that, where an officeholder is “bound to attend upon request, and refuses,” it can be recognized as a legal cause of abandonment — pointing further to a 1611 case from England. Context makes clear that treatise’s reference to officers “bound to attend upon request” is about local officials responsible for the administration of justice. And in any event, citing a 500-year-old case decided before the Glorious Revolution — which established the Anglo-American conception of separation of powers — in lieu of any case decided by a state court since 1776 betrays the unavailability of persuasive authority.

Abbott similarly articulates no arguments of substance. Like Paxton, he makes circular and unsupported arguments that failing to perform the duties of a legislator and leaving the state without definite plans to return is abandonment. Abbott argues the constitutional job of a state legislator is to show up to the state legislature and vote and that a lawmaker who doesn’t do that has abandoned their office. He cites no case law for this argument.

Depriving the legislature of a quorum by leaving is a common practice dating back to the 19th century, as the Texas Tribune recently laid out. Abbott makes no effort to explain why this situation differs from the many instances of quorum blocking over the last two centuries.

Abbott makes two additional arguments that Paxton doesn’t. First, he suggests that by leaving “the state for an indefinite period of time,” Wu has effectively “removed” himself from the state and ceased to be a resident. The facts certainly don’t support such a bizarre assertion. Again, Abbott cites no law for this proposition.

Abbott’s final meritless assertion is that Wu has been bribed and could be charged under state law. He points to a provision in the Texas Constitution that disqualifies state legislators who have been bribed. He argues that Wu “demonstrably accepted ‘things of value’ — including an expensive trip on a private jet — to facilitate the ‘withholding of’ his vote from the Texas House by effectuating his out-of-state absence” and that “he did all of that in exchange for his failure to perform the most basic of duties placed upon him — showing up for meetings of the Legislature when convened by the Governor.”

Abbott’s characterization of the facts is only thinly supported, and he cites no case law to support his contention that these allegations, if true, would amount to a bribe. The sources he does cite — the state constitution and Texas’s Penal Code — undermine his argument. The constitution requires that Wu must have “solicit[ed], demand[ed], or receive[d], or consent[ed] to receive” any “thing of value” in exchange “for his vote or official influence, or for withholding the same.” Likewise, the Texas Penal Code requires that an officeholder accept “any benefit as consideration for the recipient’s decision.”

Abbott’s argument, apparently, is that Wu agreed to withhold his vote in exchange for a plane trip to a location where he could withhold his vote, yet the entire first part of his brief argues that Wu was purposely withholding his vote to deny a quorum. To say that he did it for a trip . . . which he only went on so that he could deny quorum . . . is paradoxical.

Neither Paxton nor Abbott present any historical analog or point of comparison, make any citation to relevant case law, or advance arguments that make any sense.

Representative Gene Wu’s response to the lawsuits points out that Abbott’s allegations are unproven and don’t support a conclusion that he has “abandoned” his office. Wu argues that Abbott has presented no proof that Wu or the other Democrats had unequivocally intended to relinquish their offices, as Texas case law requires. He maintains that he is “exercis[ing] a power granted his office by the Texas Constitution” and upholding his oath to the federal and state constitutions by “exercis[ing] independent judgment” as to the legality of the maps proposed.

The Texas Supreme Court Shouldn’t Hear These Cases

As if the suits weren’t bad enough on the merits, they should also fail procedurally. There are multiple reasons why the Texas Supreme Court shouldn’t hear them at all.

Ordinarily, cases are filed with trial courts. But most state supreme courts have exceptions to that usual practice in special cases. The Texas Constitution grants the state supreme court the power “to issue writs of quo warranto and mandamus in such cases as may be specified” by the legislature. Quo warranto is a Latin phrase that means, basically, “by what authority,” and it’s used to question the legal basis that an officeholder has to their office.

The Texas legislature has, in turn, granted the supreme court the power to issue “writs of quo warranto” against “any officer of state government except the governor.”

Abbott’s brief argues that this law empowers the court to hear the case that he’s filed because “it is clear that a member of the Texas House of Representatives is an ‘officer of state government.’” He cites an 1893 case that the phrase “officer of state government” is “given its plain meaning.”

But Abbott ignores the fact that, for over a century, the state supreme court’s interpretation of “officer of state government” directly contradicts what he’s arguing here. As the court explained in a 1999 case, In re Nolo Press/Folk Law: “We have construed this phrase to refer, not to every State official at every level, but only to chief administrative officers — the heads of State departments and agencies who are charged with the general administration of State affairs.”

Not, in other words, state legislators. Abbott cites nothing to the contrary.

It also bears noting that this is an unusual invocation of quo warranto. As Wu argues — and Paxton agrees — Abbott, as the governor, isn’t entitled to bring this action under Texas law. Moreover, as explained in the same 19th century treatise on which Paxton relies, courts will usually not grant a writ of quo warranto where there is “any other remedy” available — like when the state constitution or statute creates a specific process for doing so.

In Texas, as in most states, there is a separate process for removing a state legislator from office. The state constitution delegates to each chamber of the state legislature the power to “judge of the qualifications and election of its own members,” and separately, the power to “punish members for disorderly conduct” and “expel” them for misconduct. As a result, there’s a powerful argument that this lawsuit is improper and that the court does not have jurisdiction to issue a writ of quo warranto.

Finally, because state constitutions normally delegate the power to resolve intra-legislative disputes to the legislature itself, courts are generally reluctant to intervene in matters relating to alleged legislative misconduct. As a result, it would not be surprising if the Texas Supreme Court held that the lawsuits presented non-justiciable political questions and refused to hear the case.

Lessons from Oregon

The Texas Constitution requires a quorum for the legislature to conduct business and contains no provision — other than allowing the state legislature to attempt to compel the attendance of absent legislators — that supports Abbott and Paxton’s arguments in this situation. If Texans want fleeing the state to prevent a quorum to constitute abandonment, or if they want to attach any other consequences to such actions by legislators, they can amend the constitution.

This idea is not unprecedented. In 2022, following several legislative sessions in which Republican state senators in Oregon purposely denied quorum, voters ratified a constitutional amendment disqualifying legislators from seeking re-election after accruing 10 or more unexcused absences. The Oregon Supreme Court applied the provision to absent legislators last year, holding that 10 senators who boycotted a legislative session for 6 weeks in 2023 to stall bills related to abortion access, transgender rights, and gun restrictions could not run for reelection.

• • •

The Texas Supreme Court this week consolidated Abbott and Paxton’s cases and set a schedule that anticipates briefing to wrap up by September 4. That means we won’t have a ruling in the matter until sometime in September, at the earliest.

Despite the weakness of Abbott and Paxton’s arguments, there is no predicting how the court will rule. We are living in unprecedented times.

Quinn Yeargain is an associate professor of law and the 1855 Professor of the Law of Democracy at the Michigan State University College of Law. Portions of this article previously appeared on their substack, Guaranteed Republics.

Suggested Citation: Quinn Yeargain, The Weak Lawsuits to Expel Texas’s Democratic Lawmakers, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 13, 2025), https://statecourtreport.org/our-work/analysis-opinion/weak-lawsuits-expel-texass-democratic-lawmakers