Opening day of every Texas legislative session begins with the swearing in of members and, in the House, the election of a speaker. On January 10, 2023, the Texas House of Representatives gathered to execute these duties, while the party faithful watched in disbelief as all, but 3 House Republicans voted to re-elect Speaker Dade Phelan (R-Beaumont). Phelan had publicly defended and vowed to continue the practice of appointing Democrats as committee chairs – in spite of the fact that banning Democrat chairs was a top GOP legislative priority supported by 81% of polled Republican voters.
All but 3 Republican House members believed a vote for Phelan would guarantee them the committee assignments they wanted and didn’t care that their FIRST official act was to vote against the wishes of their constituents and local Republican party members who helped them win election to the House.
Republican Speaker Dade Phelan Kills Every GOP Legislative Priority on Day 2
On day 2 of the legislative session, the House convened to adopt a Housekeeping Resolution which it does at the beginning of every session. Among the things addressed in the Housekeeping Resolution are the Speaker’s Powers and Duties, for which no change was proposed. The resolution mostly changed dates and references to session numbers; it gave raises to House employees and added the following new section, which would later provide the basis to kill every GOP legislative priority for the rest of the session and future sessions, unless it is repealed in 2025. It reads as follows:
SECTION 5.11.USE OF HOUSE RESOURCES FOR POLITICAL PURPOSES PROHIBITED. Pursuant to Section 51, Article III, Texas Constitution, house resources may be used only for a public purpose. A house member, committee, officer, or employee may not use or direct the use of any house resources to further any political purpose. In this section, “house resources” includes appropriated funds, property, services, personnel, or any other thing of value belonging to the government that comes into the custody, possession, or control of a house member, committee, officer, or employee by virtue of public office or employment.”
There was no discussion of the new Sec. 5.11, and the Housekeeping Resolution was adopted with 1 amendment, which further increased the salaries of House employees. The next order of business was the adoption of House rules. Only Reps. Slaton (R-Greenville), Rep. Tony Tinderholt (R-Arlington) and Rep. Mark Dorazio (R-San Antonio) voted against the Housekeeping Resolution, though their reasons are unclear. Did they oppose the date changes? The salary increases? Or did they oppose proposed rule 5.11? If that was the reason, why didn’t they offer an amendment to strike the proposed rule? For that matter, why didn’t Rep. Slaton offer the “No Democrat Chairs” amendment during the Housekeeping Resolution discussion where it would have been proper, and BEFORE the adoption of Rule 5.11?
Republican Speaker Dade Phelan Pulls a Fast One on SREC Members and the Grassroots
The State Republican Executive Committee planned to have busloads of Republicans, wearing red and white “Ban Democrat Chairs” t-shirts, show up at the Capitol on January 12, when they believed the House Rules would be taken up. They knew that Rep. Slaton would seek to amend the House Rules to ban Democrat committee chairs. Party activists planned to visit their state representatives BEFORE the House rules were adopted on day 3 and encourage them to support the Slaton Amendment.
Phelan also knew Slaton would be offering the “No Democrat Chairs” amendment to the House rules, and he also knew that there would be a sea of red shirts in the gallery on day 3. So, he simply announced that the House Rules would be adopted on day 2, January 11, right after the Housekeeping Resolution was adopted.
The only substantive amendment to the House Rules was the so called “AWOL amendment” by Rep. Charlie Geren, which would penalize a member who was absent without leave for the purpose of impeding the business of the house, or quorum busting. It was adopted along party lines with one clarifying amendment by Rep. Trey Martinez Fischer (D-San Antonio.)
Then, Rep. Slaton, supported by Reps. Hayes, Schatzline, Tinderholt, Dorazio, Harrison and Toth, offered the “No Democrat Chairs” amendment to the House Rules. Rep. Charlie Geren (R-Ft. Worth) raised a point of order against the Slaton Amendment and what follows, verbatim, is the ruling of the Speaker:
“Representative Geren raised a point of order against further consideration of Amendment No. 3. The point of order was sustained, and the speaker submitted the following ruling: RULING BY THE SPEAKER on Amendment No. 3 to House Resolution 4 Announced in the House on January 11, 2023, Representative Geren raises a point of order against further consideration of the Slaton Amendment on the grounds that the amendment seeks to authorize actions prohibited by the Housekeeping Resolution. The subject of the amendment, as stated by the author in his layout, is to prohibit the Speaker from appointing certain members as committee chairs, specifically those members who were elected as nominees of an identified political party. (The author additionally stated that the purpose of the amendment was to implement the directive of a political party s’ state executive committee).
The Housekeeping Resolution adopted by the House earlier today codified the constitutional rule that House resources may be used only for public purposes and may not be used for political purposes. Attorneys General John Cornyn and Greg Abbott have held that political parties are not public entities but are political instrumentalities. Atty. Gen. Ops. Nos. GA-880 (2011); JC-562i (2002). The amendment would require a speaker to use public resources, including staff time and government facilities, on behalf of one political instrumentality. This obviously would require the speaker to violate the Housekeeping Resolution. Once adopted, a House resolution is not subject to collateral attack. Deschler-Brown ch. 11, § 3.2.
The Slaton Amendment effectively seeks to amend the previously adopted Housekeeping Resolution, which is not permitted under House precedent. 32 H. Jour. 71-72 (1911). It may only be offered by way of direct amendment to that measure. 41 H. Jour. 1st. C.S. 16, 79-82 (1929). Accordingly, the point of order is well-taken and sustained. The ruling precluded further consideration of Amendment No. 3.”
For some reason, Slaton failed to offer the “No Democrat Chairs” amendment when the Housekeeping Resolution was being discussed. It’s very clear that the “Speaker’s Powers and Duties are outlined there. And since new Rule 5.11 hadn’t been adopted yet, it would not have served as the basis for Geren’s second point of order.
Instead, he offered the amendment during the House Rules debate and gave as his rationale that the Ban Democrat Chairs amendment was one of the top GOP Legislative Priorities. These two things opened the door for Geren to kill the Slaton amendment by pointing out, correctly, that the amendment should have been offered during the Housekeeping Resolution debate. Furthermore, because the Housekeeping Resolution now included Section 5.11 set out above, Geren could claim that Slaton’s amendment (because it was offered on behalf of the State GOP, a political instrumentality) violated newly adopted Rule 5.11 of the Housekeeping Resolution.
The Speaker agreed with Geren’s point of order and the Slaton Amendment was dead. There would be no opportunity now to get a record vote on that amendment. Rep. Tinderholt later went to the back mic to appealed to House Republicans to join him in signing a motion to appeal the ruling of the Chair. He needed 10 signatures but could only get 6. The Republicans who signed Tinderholt’s motion were Slaton, Schatzline, Tinderholt, Toth, Harrison and Dorazio. hat the Slaton Amendment should have been offered in the Housekeeping Resolution. Tinderholt’s actions substituted for a record vote in that he could show there were only 6 who were willing to move to reopen the debate. Their signatures didn’t necessarily indicate they were against Democrat chairs because 3 of them (Toth, Harrison, Dorazio) had voted to reelect Phelan as Speaker and Phelan had made clear his intent to continue naming Democrats to chair house committees.
If Every GOP Legislative Priority is Dead Whose Bills CAN Pass??
The parliamentary ruling that the Slaton “No Democrat Chairs” amendment violated Housekeeping Resolution Rule 5.11 means that the Speaker can’t use state resources to even refer a bill to a committee if it can be identified as a GOP Legislative Priority. Wisely, the Democrats didn’t adopt or publish any legislative priorities, but both parties publish their party platform.
Would any bill that aligned with either party’s platform be subject to Housekeeping Resolution Rule 5.11? How about a bill advanced on behalf of a private entity like, Tesla. Would that bill be subject to Rule 5.11, which says resources can only be used for a public purpose? Whose bills CAN pass Rule 5.11? Public entities to be sure, so – school districts, cities, counties and special districts should have a good session.
The Grassroots Response: Censure Watch
Already, party activists, SREC members and even Texas GOP Chairman Matt Rinaldi are talking about censuring the GOP members who voted for Phelan. Texas GOP Rule 44 provides that a member can be censured for violating 3 core principles of the Texas Republican Party in a biennium. What follows is Texas GOP Rule 44, verbatim.
“Rule No. 44 – Censure Process and Penalties
a. A County or Senatorial District Convention or a County or District Executive Committee may, after notice and invitation to the officeholder to appear and be provided time to speak before a County or Senatorial Convention or a County or District Executive Committee, by a two-thirds (2/3) vote of those present and voting, but in no case by less than a majority of the County Executive Committee (CEC) in full, adopt a resolution censuring a Republican public officeholder representing all or a portion of that County or District for three (3) or more actions taken during the current biennium in opposition to the core principles of the Republican Party of Texas defined in the Preamble of the Party Platform as described in Rule No. 43A or to the Legislative Priorities adopted at the most recent State Convention as described in Rule 34(c). Any resolution of censure that does not meet those criteria shall be subject to challenge by a point of order. Such a resolution may include a request, to the SREC or any State Convention held prior to start of the filing period of a Republican Primary Election while these rules are in effect, that the named officeholder be penalized. If such a request is included, after not less than fourteen (14) days’ notice and opportunity to the officeholder to appear and be provided time to speak before the SREC or the State Convention in conformity with the request, the delegates of the State Convention by majority vote in the case of (1) below, or by a two-thirds (2/3) vote in the case of (2) below, or the State Republican Executive Committee by a three-fifths (3/5) vote of the full membership, may vote to concur with the resolution of censure and impose one or both of the following penalties:
- declare that no Rule or Bylaw enacted by any division of the Party at any level that demands the Party be neutral in intraparty contests shall be observed with respect to the named officeholder, and no financial or other support shall be provided to their campaign by the Party except that which is required by law. If the officeholder files an application to run for any public office in the Republican Party primary following the censure resolution’s passage, the SREC shall be authorized to spend up to twelve percent (12%) of the Party’s general fund on voter education in the officeholder’s district, by republishing the original censure resolution verbatim, using a media format determined by the SREC.
- declare that the named officeholder is discouraged from participating in the Republican Party Primary following the censure passage. Any above penalty imposed shall expire on the day following the date of the Primary runoff in which the officeholder would be up for reelection. The term “officeholder” as used in this rule shall mean a holder of public office except a justice of the peace, or a judge of a statutory county court, statutory probate court, district court, court of appeals, the Courts of Criminal Appeal, or the Supreme Court of Texas. Nothing within this Rule shall be construed to authorize the removal of a public officeholder; and likewise, nothing within this rule shall serve to limit the removal of any public officeholder under other rule or law.
b. Any County Chairman who applies the provisions of Section (a)(1) and thereby becomes the subject of a lawsuit for doing so shall be indemnified by the Republican Party of Texas, who shall provide counsel to the County Chairman or pay for any expenses incurred related to any suit. The State Party Chairman shall defend in court any suit against the Party arising from the application of Rule No. 44.”
The 2017 Straus Censure Resolution Provides the Roadmap
In December 2017, the Bexar County Republican Party adopted the following Censure Resolution against former Speaker Joe Straus. The State Republican Executive Committee then concurred in the resolution, which ended Straus’ career. The text of the Straus Censure Resolution is set out, verbatim, as follows:
“WHEREAS Rule 44 of the Republican Party of Texas allows the Party to sanction a Republican office holder who takes three or more actions during a biennium in opposition to the core principles of the Republican Party of Texas platform; and
WHEREAS, Rep. Joseph R. Straus, III, as Speaker of the Texas House of Representatives, has abused the power of his office and his authority as speaker to usurp the power of the people’s duly elected representatives of the Texas House of Representatives, obstructed the agenda of Governor Abbott, and, taken more than three actions during this current biennium that are in opposition to the core principles of the Republican Party of Texas: and
WHEREAS, in disregard of House rules and the Texas Constitution Art. III, Sec 12(c), an act described by Governor Abbott and Lieutenant Governor Patrick as “walking off the job,” Straus unilaterally adjourned the Texas House of Representatives early on August 15, 2017, during the First Called Session of the Texas Legislature without a vote of our duly elected Representatives despite the objections and demands for a record vote of at least 17 members of the House of Representatives; and
WHEREAS, During the 85th legislative session, Straus repeatedly refused to recognize proper motions and amendments made by the people’s duly elected representatives, only allowing motions and amendments to proceed when he consented to their substance; likewise, Straus set aside parliamentary procedure to deny representatives the right to appeal his parliamentary rulings; and
WHEREAS, Such actions impede and make a mockery of representative government and thereby contradict the principles enshrined in the Texas Constitution and in opposition to the first and fourth core principles of the Republican Party of Texas removing the people from control of their government through their representatives by sabotaging those representatives sworn duty to control the legislature through orderly motions and votes, and thereby violating the third core principle of the Republican Party of Texas; and
WHEREAS Straus acted during the 85th legislative session in opposition to the second core principle of the Republican Party of Texas by repeatedly obstructing legislation designed to protect the right to life; the foremost right for which governments are established to protect; and
WHEREAS, For the 85th Legislature, he appointed as Chairman of the House State Affairs Committee State Representative Byron Cook, who has been outspoken in his defense of certain third trimester abortions, who repeatedly killed pro-life bills, with likely majority support, in past regular sessions, with many pro-life bills referred by the Speaker to Cook’s committee blocked including amongst these, House Bill 14 during the First Called Session, which Cook obstructed administratively for 17 days, causing its demise; and
WHEREAS Straus acted repeatedly during the 85th legislative session in opposition to the seventh core principle of the Republican Party of Texas by obstructing legislation designed to secure the freedom of choice for Texas parents in the education of their children, appointed as Chairman of the House Public Education Committee State Representative Dan Huberty, who has vociferously opposed all legislation that would give parents choice in their child’s education; and
WHEREAS, after his appointment, Huberty publicly announced all school choice bills “dead on arrival” in his committee, yet Straus proceeded to refer all bills giving greater parental choice in education to Huberty’s committee; Huberty and Straus did proceed to kill such bills, including legislation designed to give greater choice to the parents of children with special needs; and
WHEREAS, Straus has taken actions in opposition to the sixth, eighth, and ninth core principles of the Republican Party of Texas by unilaterally obstructing the Texas Privacy Act, legislation designed to protect the privacy, safety, and dignity of Texas women and children and honor the principles of the free market by refusing to refer the bill to any committee for the duration of the regular session and refusing to allow members to make motions to refer the bill themselves ; and
WHEREAS, Texas House Rule 13, Section 2, provides that “[s]enate bills announced [in the House] as passed shall be read for the first time and referred to the appropriate committee as soon as practicable,” and Texas House Rule 7 reserves to the members of the House the right to refer and re-refer bills to a committee of the body’s choosing: and
RESOLVED, In accordance with Rule 44 of the Rules of the Republican Party of Texas, the Executive Committee of the Republican Party of Bexar County, meeting December 11, 2017, a quorum being present, by a vote of at least two-thirds present and voting, hereby censure Joseph R. Straus, III, a public office holder representing a portion of Bexar County; and be it further RESOLVED, We request that the State Republican Executive Committee and the delegates to the next State Convention of the Republican Party of Texas concur in this resolution of censure and impose on Joseph R. Straus, III, the penalties provided in Rule 44 of the Rules of the Republican Party of Texas; and be it further RESOLVED, That an official copy of this resolution be prepared and transmitted to the Chairman of the Republican Party of Texas.”
The SREC sponsor from the Bexar County Republican Party who put forth the Straus Censure Resolution was Mark Dorazio, who now serves as state representative to House District 122, Bexar County.
What Lies Ahead?
Sometime in early February, Speaker Phelan will publish committee assignments. If he appoints a single Democrat to chair a committee, he will have 1 strike against him toward censure. If he appoints 3, he has 3 strikes. Censure would certainly be warranted, but the question will be whether the Chairs of the Jefferson or Jasper County or District Executive Committees will have the will to censure Phelan.
With the knowledge now that every GOP Legislative priority is potentially dead, the grassroots have turned to “Censure Watch” mode. Will local county Republican parties’ censure Republican state representatives if their support of Phelan destroyed their ability to pass legislation supported by the delegates of the Republican Party State Convention? Republican state representatives have tied themselves into a Gordian knot.
