Texas Criminal Defense Lawyers Association

http://home.swbell.net/hamplaw/  1103 Nueces Street Austin, Texas 78701 (512) 476-8484 (512) 476-0953 (Fax)

Keith S. Hampton
Member
Email: hamplaw@swbell.net

By R.G. RATCLIFFE
Copyright 2003 Houston Chronicle Austin Bureau

AUSTIN -- Democratic state senators contemplating a walkout to block congressional redistricting might be constitutionally protected from arrest by state police if they flee the Capitol, a lawyer has advised the senators.

Criminal defense attorney Keith Hampton also told the Senate Democratic Caucus that an arrest by a Senate sergeant at arms or a private security agency to force senators to the Senate floor for a vote might be prosecutable as kidnapping under state law.

"And it gets worse than that. If someone in the Legislature directed them to do that, there is the crime of conspiracy to commit aggravated kidnapping," punishable by up to life in prison, Hampton told the Houston Chronicle Thursday.

As redistricting nears death in the current special legislative session, Gov. Rick Perry has signaled that he may call another session as early as next week to try again to pass a bill.

Sen. Mario Gallegos, D-Houston, said he believes 11 of the Senate's 12 Democrats are committed to a walkout if they decide it is necessary to stop redistricting. He said he hopes Perry will back off and not call another special session.

"I know a stalemate when I see one, and I know when Texans have had enough," Gallegos said.

The state House passed a redistricting bill in this session, but a Senate procedural rule makes it unlikely that chamber will be able to vote on redistricting. Lt. Gov. David Dewhurst has said the procedural rule -- which essentially requires a two-thirds vote to pass a bill -- will not be in effect if there is another session.

Fifty-five state House Democrats blocked redistricting in last spring's regular session by fleeing the Capitol to break quorum.

State troopers searched for those legislators, but state District Judge Charles Campbell, a Democrat, said earlier this month that he plans to rule in a civil suit arising from the search that it violated state law.

Attorney General Greg Abbott plans to appeal Campbell's order once it has been filed.

Dewhurst, who presides over the Senate, evaded questions about whether he would order the Democrats arrested if they broke the Senate quorum.

"I will continue to follow state law. I understand that (Campbell's) ruling has been appealed by the attorney general," Dewhurst said.

Campbell's ruling applied state law, and Hampton said it will provide a starting point for any challenge to Department of Public Safety authority to bring in legislators who break quorum.

House Speaker Tom Craddick cited House rules in ordering the search for the missing state representatives in May. House Sergeant at Arms Rod Welch deputized the Texas Department of Public Safety to conduct the manhunt.

Hampton said the Senate sergeant at arms has the authority to deputize individuals to return runaway senators to the floor to restore a quorum. But he said there is a question of what is legal enforcement and what becomes kidnapping.

"I don't know if they (Senate leaders) can do anything more than make a major effort to persuade them, because a senator has every right to say no," Hampton said.

"They (senators) may find going home and mowing the lawn more productive."

Senate Sergeant at Arms Carleton Turner declined comment.

DPS spokeswoman Tela Mange said the agency has not decided what to do, in light of Campbell's ruling, if Democratic senators bolt.

"If we are asked to help in rounding up folks, I'm sure we will call the attorney general's office and consult with our lawyers and see what they want to do," Mange said.

Abbott spokeswoman Jane Shepperd said no appeal has been filed because Campbell has not officially entered his order.

Each special session costs taxpayers an estimated $1.7 million. Perry called the current special session at the urging of House Majority Leader Tom DeLay, R-Sugar Land.

DeLay and other Republicans say that the state's congressional delegation should reflect the Republican voting trends in Texas. The state now sends 17 Democrats and 15 Republicans to the U.S. House of Representatives.

Redistricting plans passed by the state House and by a Senate committee would results in election of as many as seven more Republican representatives in next year's election.

Hampton said if the Democratic senators decide to break quorum, then Campbell's ruling likely will be used as the basis for a Texas Supreme Court challenge on whether the use of state police to enforce Senate rules violates constitutional separation of powers.

Article II of the state constitution defines the three "departments" or branches of state government.

It continues, "No person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others."

The DPS, an executive branch agency, would become an arm of the legislative branch if drawn into the search, Hampton said.

"It has been conveyed to DPS and the executive branch that they would be in violation of the constitution were they to interfere in the affairs of one single House or Senate member," Hampton said.

"I don't think your law enforcement agents want to be enforcing some political positions."

DPS officers searched unsuccessfully in 1979 for a group of senators -- known as the Killer Bees -- who boycotted the Senate in a fight over a presidential primary bill. The senators evaded state troopers long enough to win the legislative battle, and the troopers' authority to search for quorum-busting legislators was not challenged in court.

Any Democratic effort to break quorum in an upcoming special session could be ground down by Perry's threat to call another 30-day session each time one ended.

But Sen. Bill Ratliff, R-Mount Pleasant, the only Republican openly opposed to redistricting, said the leadership's loss of the power to use the DPS to enforce a quorum might allow a walkout to work.

"If the DPS can't come get them, I suppose they can just go home," said Ratliff, who does not plan to participate in a walkout. "I don't know how you compel them, unless it's in handcuffs."

The question of a boycott or walkout in a second special session arises because Dewhurst has said he will not allow a Senate minority to block the redistricting bill on a procedural vote.

In the current session, the 11 Democratic senators and one Republican senator pledged to vote against redistricting are empowered because other legislation serves as a roadblock on the Senate agenda. A two-thirds vote of the 31 members is required to take a bill out of order.

But because redistricting would be the only issue on the call of a second special session, a simple majority could pass a bill in the Senate.

Perry has indicated he will call a special session quickly if this one fails to pass redistricting. Exactly when is unclear.

Craddick spokesman Bob Richter said about 50 House members are signed up to attend the American Legislative Exchange Council convention next week in Washington. The meeting of the conservative group features a speech by Vice President Dick Cheney and possibly a White House tour.

Sen. John Whitmire, D-Houston, said some senators are afraid Perry will call a new special session immediately after the current session ends on Tuesday, while Democratic senators are still in the Capitol.

"You get a strong paranoia or concern that they are going to sine die (adjourn) at noon and call us back an hour later so they can lock us up in here," Whitmire said.