A Legal Standoff in the Lone Star State

A bitter political and legal battle is unfolding in Texas.

On Sunday, more than 51 Democrats in the Texas House of Representatives fled the state in an effort to block Republican attempts to re-draw the state’s congressional map ahead of the 2026 midterm elections. Hours later, Gov. Greg Abbott threatened to remove the absent lawmakers from office if they didn’t return for a scheduled floor debate by 3 p.m. on Monday, Aug. 4. In response, the Democrats invoked a defiant slogan from the Texas Revolution: “Come and take it.”

In the days that followed, Texas House Speaker Dustin Burrows announced that he would sign civil arrest warrants for the absent Democrats. A sitting U.S. senator, John Cornyn (R-Texas), asked the FBI to assist Texas state law enforcement efforts to “locate or arrest” them. And Abbott made good on his promise to seek the removal of Democratic legislators, starting with a petition that asks the Supreme Court of Texas to remove the so-called “ringleader” of the effort, state Rep. Gene Wu, on grounds that he “abandoned” his office.

All of which has Americans fretting over several questions concerning Texas state law. Why exactly did the Democrats leave? Can they really be arrested? Can Gov. Abbott actually remove the Democrats from office? And what the heck is a “quo warranto” action, anyway?

Below, we address your burning legal questions about the showdown in the Lone Star State.

Why did Democrats leave the state? 

The groundwork for the showdown was laid well before Democrats left the state on Aug. 3. In July, Gov. Abbott called a special legislative session to provide for flood relief following the deadly disaster in Kerr County and to propose new congressional maps that could help Republicans maintain their slim majority in the U.S. House of Representatives.

The timing of the redistricting was unusual. States typically draw new maps every ten years, and Texas wasn’t scheduled to do so again until 2031.

But President Donald Trump had other ideas. According to the New York Times, Trump urged Republican leaders in Texas to move forward with what one aide described as a “ruthless” strategy to potentially net five seats in the U.S. House, thereby protecting the party’s majority in Congress.

The pressure reportedly pushed Texas Republicans to act—and compelled Texas Democrats to play their own kind of constitutional hardball.

The Democrats’ strategy hinges on Article III, Section 10 of the Texas Constitution, which provides that two-thirds of a legislative chamber must be present to constitute a quorum. In the 150-member Texas House, that means at least 100 lawmakers must be in attendance. On Sunday, when more than 51 members of the Democratic minority left the state, the move effectively brought legislative business to a standstill by denying Republicans the quorum needed to bring their redistricting plan to a vote.

The strategy, known as “quorum-breaking,” has a long history in Texas. The first recorded instance occurred in 1870, when 13 state Senators walked out of the state Capitol in protest of a bill that would give the governor power to declare martial law. Though the Senators were arrested and the bill ultimately passed, the “Rump Senate” incident established quorum-busting as usable, if extreme and not necessarily effective in the ultimate sense, legislative tactic.

Quorum-busting efforts have rarely succeeded—with one notable exception. In 1979, a group of Democratic state senators known as the “Killer Bees” broke quorum to block a proposed elections bill. Amid a statewide manhunt, the 12 legislators hid out in a garage apartment in Houston. After a four-day standoff, Republicans agreed to drop the contested bill.

More recent efforts, however, have only delayed the passage of legislation. In 2003, Democrats attempted to block a redistricting plan but failed when one of them broke ranks after 46 days. In 2021, another standoff over voting laws ended when several Democrats returned to the legislature amid internal party divisions and threats of arrest. In both cases, the contested legislation eventually passed.

This history suggests that the current effort may be a symbolic, rather than substantive, effort to derail the mid-decade redistricting. Texas’s special session is set to end Aug. 19, and Democrats have pledged to remain out of state for at least two more weeks. But state law allows the governor to call an unlimited number of 30-day special sessions—meaning that Gov. Abbott could call a second or third special session as needed.

Still, there’s a chance—albeit a slim one—that Democrats could thwart the Republicans’ redistricting plan. That’s because Texas must complete its redistricting before the state’s Dec. 8 filing deadline for congressional candidates to appear on the general primary ballot. If Democrats can hold out past that deadline, they could ensure that the new maps aren’t adopted in time for the 2026 midterm elections. 

It’s unlikely that the standoff will last that long. Serving in the Texas legislature is a part-time job, and many of the Democratic holdouts have professional or personal obligations in their home state. Maintaining a long-term absence would also come at a steep cost: each absent Democrat is currently subject to a $500 daily fine. Over time, mounting financial pressure, legal threats, and the strain of a prolonged absence could erode party unity—just as it has during previous quorum-busting efforts.

Can Texas compel the return of absent Democrats by issuing warrants for their arrest?

Unlikely—at least as long as the Democrats remain out of state.

On Monday afternoon, Republicans in the Texas House voted to issue arrest warrants for the missing Democrats. But the warrants are unenforceable outside of state lines, rendering the move largely symbolic.

To be sure, House Republicans are allowed to issue such warrants. That authority derives from the same provision of the Texas Constitution that establishes the quorum requirement. It reads as follows:

Two‑thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide.

As the Texas Supreme Court explained in In re Abbott, Article III, Section 10 both “enables quorum-breaking” by a minority faction and “authorizes quorum-forcing” by the remaining members. It does so by providing that the remaining members may compel the attendance of absent members by imposing penalties established under the chamber’s internal rules. To that end, Rule 5 of the Texas House Rules provides that absentees may be “sent for and arrested, wherever they may be found, by the sergeant-at-arms…and their attendance shall be secured and retained.”

With respect to enforceability, the problem for Texas Republicans is jurisdiction. The absent Democrats are currently in other states, placing them beyond the reach of Texas law enforcement.

What’s more, Texas Republicans have limited legal options to compel the Democrats’ return. Breaking quorum is not a crime, and the warrants issued by the Texas House are civil—not criminal—warrants intended to compel attendance. Because no crime has been committed, federal law governing interstate extradition is not applicable.

Moreover, though news reports suggest that the FBI has agreed to help “locate” quorum-breaking Democrats, it’s not clear what kind of assistance it intends to provide.  Nor is it clear what authority the bureau has to arrest and transport someone pursuant to a non-criminal warrant in a different state. 

While Texas could certainly request the extradition of the legislators, Democratic leaders in the states to which they fled are unlikely to cooperate with such requests.  That said, the picture changes somewhat if Gov. Abbott makes good on his threat to charge the Democratic lawmakers with bribery.

Abbott first made the unsubstantiated bribery allegations in a statement he released on Aug. 3. He claimed that the Democratic legislators “may have committed felonies” for “soliciting funds to evade the fines they will incur under House rules.” The governor also pledged to use his “full extradition authority” to “demand the return to Texas of any potential out-of-state felons.” The same day, Abbott ordered the Texas Rangers to investigate fleeing House Democrats for “potential bribery and any other potential legal violations.”

As discussed later in this piece, Abbott’s claims of bribery are unsupported by proof and fail to withstand scrutiny.  Rather than serving a genuine law enforcement function, his threats to investigate and criminally charge the quorum-breakers seem designed to induce the Democrats’ return to Texas. He made that clear on Sunday, writing the following on X:

It seems to me that the only way some of the fleeing Democrats can avoid bribery charges is to not break quorum. It seems that would eliminate any potential quid pro quo connected to any payment they received to deny a quorum and skip a vote.

The bribery accusations also provide Abbott with a convenient legal pretext in his effort to remove Democratic legislators from office. In his petition filed with the Texas Supreme Court on Tuesday, Abbott argues that Rep. Wu should be removed from office on grounds that he accepted a bribe in exchange for breaking quorum. 

Still, what if Abbott’s threats do result in actual criminal charges? In that scenario, Abbott would likely be able to secure the return of the legislators through legal process. Specifically, he could go to court to initiate extradition proceedings for the return of any charged legislators who are located out-of-state. He has already suggested that he would do so. “I will use my full extradition authority to demand the return to Texas of any potential out-of-state felons,” he wrote in an Aug. 3 statement.

Can Gov. Abbott unilaterally remove the absent Democrats from office?

With few tools available to compel the return of the absent legislators, Gov. Abbott further escalated his rhetoric on Sunday night, threatening to remove the Democrats from office altogether. The gist of his argument is straightforward: By leaving the state to deliberately break quorum, the legislators “abandoned” their office. 

To be sure, the Texas Supreme Court has recognized “abandonment” as one of several ways in which a public office can be vacated—along with resignation, death, expiration of the term of office, removal, or forfeiture. But the governor has no lawful authority to unilaterally declare a vacancy based on alleged abandonment. Instead, in a 1873 case called Honey v. Graham, the justices made clear that the question of whether a public officer “abandoned” his or her office is a fact question to be resolved in court.

So, no. Abbott cannot unilaterally remove the Democrats from office. But he can try to make his case in court—and he has already begun that process.

Late Tuesday, Abbott’s office filed a petition with the Texas Supreme Court, asking it to declare that Rep. Wu “abandoned” his office by leaving the state for the purpose of breaking quorum. At the time of this writing, the petition remains pending, and the court has ordered Rep. Wu to file a response by Friday, Aug. 8.

Is there any merit to Gov. Abbott’s lawsuit seeking Rep. Wu’s removal?

To put it bluntly: Gov. Abbott’s suit isn’t just weak; it’s laughable. His legal arguments are so flimsy and internally inconsistent that even Texas’s conservative Supreme Court should have no option but to reject his petition. 

Let’s examine some of the key problems in Abbott’s petition.

Jurisdiction and Justiciability

Abbott’s troubles begin long before he even gets to the merits of his claim that Rep. Wu abandoned or forfeited his membership in the House. From the jump, his petition is dogged by jurisdictional flaws that likely bar the court from hearing it at all. 

To grasp the significance of Abbott’s jurisdictional hurdles, it helps to know a thing or two about the nature of the legal action Abbott filed. The suit is styled as a petition for a writ of “quo warranto,” which is Latin for “by what authority.” The writ has a long and varied common law pedigree. But the gist of it is that quo warranto actions have been used to challenge a person’s legal right to hold a public or corporate office.

Today, a petition for a writ of quo warranto can be initiated in a district court pursuant to § 66.001 of the Texas Civil Practice and Remedies Code, which sets out the grounds on which the writ is available.

But the Texas Constitution and state statutory law also authorize a direct action seeking a writ of quo warranto in the state Supreme Court. Article V, Section 4 of the Texas Constitution provides that the legislature “may confer original jurisdiction on the Supreme Court to issue writs of quo warranto.” The legislature, in turn, has authorized the high court to issue writs of quo warranto against “any officer of state government except the governor[.]”

Abbott argues that because a member of the Texas House is an “officer of state government,” the Supreme Court has jurisdiction to hear his quo warranto action. To support this claim, he cites a 19th-century Texas Supreme Court case, which he describes as holding that the phrase “officer of state government” must be “given its plain meaning.”

Conveniently, the governor’s lawyers ignore more than a century’s worth of rulings in which Texas courts have have narrowly construed the meaning of that phrase. As early as 1903, in Betts v. Johnson, the state’s Supreme Court held that the legislature intended “to include only such state officers as are charged with the general administration of state affairs, namely, the heads of the state departments.” More recently, in In re Nolo Press/Folk Law, Inc., the Texas Supreme Court described the phrase as applying only to a “small circle” of state officials. The court explained:

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.

As these authorities make clear, the Texas Supreme Court’s longstanding interpretation of “officer of state government” is limited to state-level administrative officials in the executive branch—not members of the legislature. You wouldn’t know that from Abbott’s brief, because he cites none of those cases. 

There are other potential pleading deficiencies. For one thing, it’s not at all clear that Abbott is the proper movant for a quo warranto action.

In two recent cases, In re Dallas County and Paxton v. Annunciation House, the Texas Supreme Court said that the writ “can only be brought by the attorney general, a county attorney, or a district attorney.” But Abbott’s petition was apparently filed without the assistance of the attorney general’s office. Instead, the petition lists Abbott, in his official capacity as governor of the state of Texas, as the named relator. And it was filed by counsel in the governor’s office—not by the attorney general.

All of which prompted a bizarre public spat between Abbott and Texas Attorney General Ken Paxton. Within hours of Abbott’s filing suit on Tuesday, Paxton’s office penned a letter to the Texas Supreme Court, essentially arguing that the suit should’ve been brought by the attorney general. Nonetheless, Paxton’s office asked the court not to dismiss the governor’s petition until “the Attorney General can be heard.”

To be sure, Abbott has counterarguments. Responding to Paxton’s letter, the governor sought to distinguish his suit from In re Dallas County. Namely, he noted that the quo warranto action in that case was initiated under Chapter 66 of the Texas Civil Practice and Remedies Code, which contains a provision stating that “the attorney general or the county or district attorney of the proper county may petition the district court of the proper county or a district judge.”

By contrast, Abbott says that his petition seeks relief on different legal grounds—specifically, Article V, Section 3 of the Texas Constitution and Section 22.002(a) of the Texas Government Code. In Abbott’s view, those provisions place no such limit on who can bring suit for a writ of quo warranto.

It’s unclear who will win the turf war over quo warranto power. But this much is clear: Openly feuding with your own attorney general on the Texas Supreme Court docket does not seem like a winning litigation strategy for the governor.

Even if Abbott manages to overcome the aforementioned jurisdictional hurdles, there’s no guarantee that the state Supreme Court will agree to hear the case. The justices have rarely entertained direct actions to the Supreme Court for a writ of quo warranto. And, on several occasions, it has required parties seeking the writ to first pursue their claims in the district court. That course of action may be particularly appropriate here given that there are bound to be disputed questions of fact concerning Rep. Wu’s conduct and intent.

Finally, there are serious questions as to whether the case is even justiciable. Courts generally avoid intervening in entirely internal legislative disputes, recognizing that political questions are best resolved within the legislature itself. And the Texas Supreme Court has on at least one occasion refused to get involved in a legislative dispute concerning quorum-breaking. Given that Abbott’s petition essentially asks the court to intervene in internal legislative matters, there are prudential reasons why the Texas Supreme Court might decline to hear it on justiciability grounds.

All of that is before the governor even reaches the merits of the matter.

The Merits: Abandonment and Forfeiture

Abbott’s arguments don’t improve when he finally gets around to the key question: Did Rep. Wu abandon or forfeit his office, thus creating a vacancy under state law?

Abbott, of course, contends that Rep. Wu did vacate his office. To that end, he makes three arguments—none of which withstand scrutiny. 

The first argument is that Rep. Wu “abandoned” his membership in the Texas House by deliberately leaving the state to break quorum. As previously noted, Texas courts have recognized that a public official can vacate office by abandoning it. As one Texas court explained, abandonment occurs when there is a “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.”

But no Texas court has ever considered whether quorum-breaking constitutes abandonment. Abbott, resorting to first principles, contends that Rep. Wu abandoned his office by failing to perform the “constitutionally mandated tasks of actually legislating.” Further, he claims that Rep. Wu “expressed his intention to abandon office” by fleeing the state and “acknowledging” his abandonment of duties.” 

This argument fails on multiple fronts. For one thing, the idea that Wu violated the constitutional duties of his office by breaking quorum is entirely inconsistent with the text of the Texas Constitution and Texas Supreme Court precedent. In In re Abbott, for example, the court recognized that Article III, Section 10 “enables quorum breaking by a minority faction of the legislature.” The state’s Constitution, in other words, explicitly authorizes the conduct of which Abbott complains. And the Supreme Court has said as much without remotely implying that the conduct  it “enables” constitutes abandonment of a legislative office—or anything improper at all.

What’s more, the claim that deliberate quorum-breaking evinces an intent to relinquish office is equally unavailing. In dicta, the Texas Supreme Court has acknowledged that minority factions use quorum-breaking for the express purpose of achieving legislative objectives. In In re Turner, for example, the high court described the actions of a 2021 faction of quorum-busters as follows:

House members oppose that legislation and have broken quorum to further their opposition . . . They have chosen to continue to absent themselves in order to prevent passage of voting legislation (emphasis added).

The court’s characterization again reflects an implicit recognition that quorum-breaking can function as a strategic form of legislative engagement.  In Rep. Wu’s case, his public statements confirm his intent: He has consistently cast his conduct as a deliberate engagement in the legislative process, not an abdication of it. 

Abbott’s second argument is that Rep. Wu forfeited his office by committing bribery. He points to a provision in the Texas Constitution, Article XVI, Section 41, which states that any member of the legislature who receives or accepts a benefit in consideration of his “vote or official influence” forfeits his or her office.  Additionally, he asserts that Rep. Wu’s conduct could likewise amount to a crime under the state’s penal code, namely TEX. PENAL CODE § 36.02(a).

While acknowledging that it is up to law enforcement authorities to prosecute criminal violations, Abbott claims that it is up to the court “to determine whether forfeiture of office has occurred under the Texas Constitution.” Yet he produces not a single case in which a court has adjudicated the forfeiture of a state legislator, whether for alleged bribery or otherwise. Nor, for that matter, does he address the fact that the state’s Constitution already provides for a means to effectuate a legislator’s removal by way of impeachment proceedings.

More troubling is that Abbott barely even attempts to provide a factual basis for his accusations.  His central claims are threefold: (1) Wu met with “outside groups” to “procure funding” that would “enable” Democrats to flee the state; (2) He accepted “things of value,” including a trip on a private jet, to “facilitate” the withholding of his vote; (3) He continuously “solicited” money in connection with the group’s coordinated “official action.”

While Abbott claims that these allegations amount to bribery “on their face,” he doesn’t bother to show how.  Perhaps that’s because, had he tried, it would quickly become apparent that the alleged conduct does not amount to bribery.  Among other reasons, there’s not a scintilla of evidence of corrupt intent. There’s also no suggestion of an exchange. Rather, there is evidence that Wu decided to leave the state and deny quorum and then sought financial support for his action. This is the difference between a politician accepting financial support from those who support his policies and actions and a politician corruptly accepting financial inducement to take certain positions. The latter is a crime. The former is more norm than exception in political life. 

Moreover, the bribery argument is internally inconsistent with Abbott’s previous arguments concerning Wu’s alleged abandonment of office. There, Abbott’s argument was premised on the idea that quorum-breaking isn’t a legislative function but an outright failure to perform the duties of office altogether. In his bribery argument, however, Abbott suddenly changes his tune, describing quorum-breaking as an “official action” of the legislators. Similarly, Abbott can’t seem to decide why Wu did what he did: Did he break quorum for the purpose of obstructing the vote? Or did he break quorum for some cash and a plane ride?

Beyond bribery, Abbott musters a third and final argument for Wu’s removal. He contends that Wu abandoned his office by leaving the state for an indefinite period of time. The idea is that Wu is no longer eligible to hold office in Texas because his “deliberate and indefinite” departure means that he is no longer a resident of the state. 

This is an entirely unserious argument. The legal standard for establishing residency as an officeholder is set out in Tex. Elec. Code § 1.015(a), which provides: “‘residence’ means domicile…to which one intends to return after any temporary absence.”  The standard is generous: Even if the absent Democrats remain out-of-state for an extended period of time, they remain domiciled in Texas because their absence is temporary and they intend to return home. There is no reasonable argument that Wu, who left the state less than a week ago, no longer resides in Texas.

In the end, Abbott’s brief is not a serious legal document. It’s an entirely political one. A serious court will not get past its numerous jurisdictional maladies. The Democratic quorum-denial gambit may very well not succeed, but if it fails, it won’t be—or at least it shouldn’t be—because it’s illegal under state criminal law or constitutes some kind of abandonment of office. If it fails, rather, it should fail because December is a long time from now, and it’s easier for the governor to call special sessions of the Texas legislature than it is for Democrats to serially derail them.