House rules

When House Speaker Tom Craddick (R-Midland) ruled that he was not required — under House Rules or state law — to recognize House members for a motion that could have resulted in his removal as speaker in the final days of the 80th Legislature, it set in motion a chain of events that may cause a constitutional crisis for Texas on par with the one that briefly left Robert Bork at the helm of the U.S. Justice Department in the 1970s.

The fate of that serious constitutional question rests in the hands of Attorney General Greg Abbott, who may or may not decide he has the authority to wade into such a nettlesome political thicket.

When the dust settled following gavel down in late May, representatives who wanted to oust Craddick were left holding a bag of thorny sticks in the form of the speaker’s ruling drafted by new parliamentarian — and former legislator — Terry Keel. The ruling claimed Craddick was in a special class of statewide officers subject to removal only by impeachment.

Two legislators — Byron Cook of Corsicana and Jim Keffer of Eastland, both Republicans — decided to put Craddick’s ruling to the test by asking the state’s attorney general for an opinion on the matter. Their June 18 request asked Abbott four questions related to the nature of the speaker’s position and whether or not the speaker holds, under House rules or otherwise, the absolute power of recognition of House members.

Then came the Power Rangers — legislators who weighed in on all sides of the debate with everything from hefty legal briefs fit for UT’s Law Review to an earthy letter brief from Appropriations Committee Chairman Warren Chisum, a Pampa Republican.

Abbott has until mid-December to come up with an answer for Keffer, Cook, and more than a dozen legislators and advocacy organizations — not to mention Speaker Craddick — who are anxiously waiting for his response.

The numerous briefs filed by legislators fall roughly along an invisible line drawn in the sand. On one side of the line are the precedents (including the removal of Speaker Ira Hobart Evans in 1871), case law, House rules, and everything else that shows a House speaker is not a constitutional officer, is subject to removal by his peers, and cannot unconditionally refuse to recognize his fellow members. On the other side are briefs and letter briefs that tell Abbott in no uncertain terms that he has no constitutional authority to intervene in what detractors allege is a pissing contest over the rules of the Texas House of Representatives.

On the left of the line are members such as Rep. Jim Pitts (R-Waxahachie), who is once again a candidate for Speaker. Pitts argues that the speaker is not a statewide officer subject to impeachment but a mere legislative officer who serves no set term of office and serves at the will of the House, and that the rules of the house do not delegate to the speaker absolute authority to recognize members on any matter, including such privileged matters as a motion to vacate the chair.

Pitts (who was unavailable for comment on the matter as he is presently vacationing overseas with his sister) reaches back as far as Thomas Jefferson’s seminal work on parliamentary procedure for the U.S. Congress for some of his arguments.

State Rep. Brian McCall (R-Plano) goes back even farther in search for his precedents. In a brief that reads as much like a history lesson as a commentary to the attorney general, McCall invokes the years 1258 and 1642 and medieval and Renaissance England to trace the history of the position of “speaker.”

On Pitts’s side, Representatives Charlie Geren (R-Fort Worth), Mike Krusee (R-Round Rock), Pat Haggerty (R-El Paso), McCall, and Kirk England (R-Garland), make arguments similar to those of Pitts, but add a new twist. They note that, while Craddick is right in that the Rules of the House give him the absolute power to recognize, those rules are actually unconstitutional.

On the opposite side are confirmed Craddick disciples such as Reps. Jodie Laubenberg (R-Wylie), Dan Flynn (R-Van), Bill Callegari, Leo Berman (R-Tyler), and Appropriations Committee Chairman Warren Chisum (R-Pampa) — all of whom submitted individual briefs or letter briefs.

Berman, joined by 14 other Craddick loyalists (including Betty Brown (R-Terrell), Fred Brown (R-Bryan), Callegari, Frank Corte (R-San Antonio), John Davis (R-Houston), Rob Eissler (R-The Woodlands), Flynn, Linda Harper-Brown (R-Irving), Charlie Howard (R-Sugar Land), Carl Isett (R-Lubbock), Jim Jackson (R-Carrolton), Jim Murphy (R-Houston), Beverly Woolley (R-Houston), and Bill Zedler (R-Arlington)), argues that Abbott only has the constitutional authority to address the fourth question — whether or not the speaker can be removed during the session — and that he should rule that the speaker may not be removed mid-session for political or personal reasons.

Many of the pro-Craddick letter briefs, too, are highly critical of the anti-Craddick insurgents and very strident in telling Abbott he has no authority to wade into the matter.

“The rebellion to unseat Speaker Craddick had nothing to do with legitimate issues,” Flynn wrote in one of the letter briefs most critical of the anti-Craddick insurgents. “The opposition worked with a few Craddick supporters who willingly joined to obstruct an `sic` process of the Texas House.”

Berman and his colleagues strongly urge Abbott to keep out of the House’s business in no uncertain terms, stating, “Your analysis in your official capacity is limited to only a discussion of whether the Texas Constitution permits the political or personal removal of a speaker... matters of rule construction and interpretation are exclusively, and uniquely to be determined by each separate body.”

Whether or not Abbott will issue an opinion remains to be seen. Some suggest he’ll use the “outs” offered by Berman and the other pro-Craddick Republicans as a way to avoid the matter entirely. Others believe Abbott will jump in head first and issue a partisan opinion that favors Craddick’s position and gives the insurgents a rhetorical body slam.

For Rep. Byron Cook, who certainly hopes Abbott will weigh in, the issue isn’t a political one, in spite of what colleagues may allege.

“This is about the integrity of the Legislative Body,” the Corsicana Republican notes.  And, he says, history and precedent favor those who argue Craddick isn’t a state officer and is subject to removal at the will of the House.

“If you go back and look at the history of this, the precedent is there, going back to the 1200s. This isn’t about politics. And, I’ve told my colleagues, if you step back and look it from a factual standpoint and an historical standpoint — and remove the emotion from the situation — you can see this,” Cook told the Current in a phone interview Monday.

“There is a much higher level of success that we could achieve than we did in the last session. This is an issue we need to resolve for future legislatures.”

There are numerous opinions, articulated in brief after brief, on the power and authority of the Speaker of the Texas House and whether or not he is a constitutional officer.

One of the most interesting voices in the debate is State Rep. Warren Chisum (R-Pampa), a 20-year member of the House, Chair of the Appropriations Committee, and an unapologetic defender of House Speaker Tom Craddick. 

In a telephone interview with the Current, Chisum addressed several of the issues swirling around the opinion requests submitted to Attorney General Greg Abbott.

First and foremost, Chisum agrees with some of his colleagues who believe Abbott has no authority to rule on most of the questions presented to him.

“Clearly, under the separation of powers, the Attorney General has the authority to look at the laws we pass and issue an opinion on those. But, to get into the area of issuing an opinion on the rules of the Legislature — that’s outside the constitutional constraints of his office because the Legislature operates the Legislature,” Chisum said.

“He can have a personal opinion on this, but this is an issue that’s up to the Legislature. I don’t think he’s going to get off into this thing,” Chisum says, “because constitutionally, this is a legislative matter. He’s an elected official and he has certain constitutional duties and boundaries, as do we.”

Chisum also notes that any opinion made by the Attorney General can be challenged in court, and will ultimately end up before the Texas Supreme Court.

“I don’t think the Supreme Court is going to weigh in on it, either. They’d look at it and say it’s purely a legislative issue.

If Abbott does rule on the matter, however, and happens to side against the speaker, Chisum says this won’t be the end of the saga.

“I expect there will be `an appeal` regardless, especially if he does weigh in.”

Asked if he was surprised about the sheer number of briefs submitted and the variety of members who contributed them, Chisum offers an interesting theory.

“I believe `the anti-Craddick insurgency` is purely political and that it has been driven from the get-go by trial lawyers. They have been hurt very bad under Tom Craddick as speaker. They’ve been hit in the pocket book. We’ve passed several tort-reform bills that have helped lower insurance rates, and brought more doctors to Texas and it’s cost them money,” Chisum says.

Does he have hard and fast evidence of this? In his infamous West Texas patois, Chisum says it’s a hunch.

“I don’t have any hard evidence to back that up and haven’t been able to trace it back to the trial lawyers, but if you look at the briefs that have been filed by some of the members, it’s a lot of very complicated legal material, and I believe the trial lawyers helped with that.”

The bottom line, though, is that even after Abbott issues an opinion, the issue could continue to linger on.

“This is not going to die. It’s got a life of its own unless the attorney general steps in and stops it there. And then, I expect that could be challenged,” he notes.

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