Abbott swings for the Craddick team 

Late last Friday evening, Texas Attorney General Greg Abbott finally weighed in on the controversy swirling around House Speaker Tom Craddick’s late-session power grab.

The result? You got “pwned.” Or you did if you were a House member who opposed Craddick.

In the most controversial Attorney General’s Opinion in at least a decade, Abbott droned on for more than 30 pages to justify siding with Craddick and his allies on the question of
whether or not the Speaker is a state official subject to removal only by impeachment before declining to opine on the speaker’s absolute authority to recognize under the House Rules.

For those who may be new to this ongoing saga, here’s a little recap:

Near the close of the 80th Session of the Texas Legislature in May, Speaker Craddick refused to recognize any member for a “motion to vacate the chair,” which would have resulted in a new speaker’s election. `See “Anatomy of a counterinsurgency,” August 29, 2007.` Following the resignation of his parliamentarians, Craddick installed former legislators and longtime allies Terry Keel and Ron Wilson in their places. Keel and Wilson ruled that Craddick was a “state official” under the Texas Constitution and could only be removed by impeachment. Following the session, Representatives Jim Keffer (R-Eastland) and Byron Cook (R-Corsicana) asked Abbott to issue an opinion on the matter, submitting to the Attorney General four questions relating to the office and power of the speaker and the House Rules.

Abbott’s opinion, which only effectively ends the saga if no one challenges it in court, was no surprise to anyone — least of all House Democratic Leader Jim Dunnam of Waco.

“No one should be surprised by Greg Abbott’s ruling,” Dunnam said in a written statement. “They are wed at the hip by the same donors.” Dunnam added that the result is “what anyone would expect from the legacy of Tom DeLay politics.”

Analyzing the full opinion is a complicated matter, but there are several important points worth noting. First, Abbott did rule that impeachment isn’t the only way to remove a House Speaker. The opinion states that the speaker is also subject to the “expulsion” provision of Article III, Section 11, of the state constitution, and the “exclusion” provision of Article XVI, Section 2, of the state constitution. Article III, Section 11 gives the House the power to expel its own members by a two-thirds majority vote; Article XVI, Section 2 governs legislators convicted of bribery, perjury, forgery, or other “high crimes.”

One bizarre facet of the opinion is that, while Abbott allows that the speaker can be impeached or otherwise removed, the speaker doesn’t, by Abbott’s logic, actually have to be replaced:

“And if the Speaker were legally removed from office, article III, section 9(b) of the Texas Constitution — on its face — neither requires nor precludes the election of a new Speaker by the House.”

By failing to state affirmatively that the constitution actually requires an election of a new speaker if one is impeached, Abbott essentially leaves the door open for the speaker to be replaced by a hand-picked lieutenant, i.e., the second in command of the House, the speaker pro tempore. One can only imagine what kind of constitutional crisis such a succession might create.

And that’s not all.

In order to reach some of his conclusions, Abbott resorted to reasoning and history that is, to say the least, quite tortured.

To justify the inclusion of the Speaker of the House in the listing of “state officers” subject to impeachment, Abbott actually relies in part on a 1917 letter between Speaker F.O. Fuller and another legislator found in the state archives. The letter purports to explain the purpose of House Bill 44 from the 1917 session, which expanded the state officers subject to impeachment. The letter says that the purpose of the legislation was to define “what officers, agents, and employees of the State Government may be impeached by the House of Representatives.” Since the legislation itself never mentioned the Speaker of the House, Abbott uses the letter to show that the law was intended to include all manner of positions not included in the bill.

Abbott also virtually ignored that a Texas House speaker previously had been removed from his position by a simple parliamentary move — the 1871 removal of Speaker Ira Hobart Evans. Instead, Abbott hinges part of his reasoning on a Depression-era case in which Texas courts held that a superintendent at a state hospital was a state officer.

Worse still, Abbott totally dismisses what is perhaps the only state appeals court decision that actually says the House Speaker isn’t a state officer — a 1932 case before the Texarkana court of appeals — by saying that the court’s opinion was mere “dicta,” an observation that has nothing to do with the actual subject matter upon which the court ruled.

Abbott also relies on the fact that the speaker sits on statewide “boards” with constitutional state officers — the Legislative Redistricting Board and the Legislative Budget Board — to further bolster his tortured reasoning.

Although Abbott’s opinion has been almost universally criticized outside of Craddick’s camp, it may be moot. Most political observers consider Craddick’s chances of winning a fourth term as speaker unlikely at best, and if he does prevail, Abbott’s opinion would likely face serious dispute. But absent a special session or another go in the Speaker’s Chair for Craddick, it could be decades before the Attorney General’s reasoning is challenged. •

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