Friday, August 03, 2007

We filed a brief

The Texas Progressive Alliance, a confederation of more than 50 Texas bloggers and Internet activists representing many of Texas' most prominent blogs, this morning filed a brief with the Texas Attorney General's office in relation to Request for Opinion No. RQ-0589-GA, pertaining to the authority of the Office of Speaker of the Texas House of Representatives.

The initial request for the opinion relating to the power of the Speaker was made June 18, 2007 by Texas State Representatives Jim Keffer and Byron Cook following the close of the 80th Texas Legislature which ended with House Speaker Tom Craddick (R-Midland) refusing to recognize House members for a Motion to Vacate the Chair claiming his office was above the precedents and rules of the House and was instead only subject to impeachment pursuant to the Texas Constitution.

Initially, the Attorney General's office invited only 29 individuals and organizations to submit briefs in connection with the Opinion Request. However, the process was later opened to all interested parties.

"Once the door was opened, we felt we would be remiss in not submitting a brief," said Vince Leibowitz of, Chair of the Texas Progressive Alliance. "As bloggers and citizen journalists, we all covered this process. We all examined the rules, the Texas Constitution, and case law and offered our opinions on this on our websites. We offered our opinions and shared with our world our collective shock at Speaker Craddick's actions, and felt this was a prime opportunity to interject some of our ideas on this process," Leibowitz continued.

The Alliance's brief addressed each of the four questions posed in Reps. Keffer's and Cook's opinion request, and brought to the attention of the OAG's opinion committee other information as well.

A key issue in the debate over the speaker's power concerns whether or not the Speaker of the House of Representatives is a legislative officer or a "statewide" officer, subject only to impeachment. Though precedent (including the removal of a speaker over a century ago) clearly show the Speaker is a legislative officer, Speaker Craddick's attorneys and others contend that he is, in fact, a statewide officer subject to impeachment provisions in the state constitution.

In its brief, the Alliance addressed what kind of absurd results Speaker Craddick's position would bring:

It appears as though Speaker Craddick interprets the omission of the position of Speaker of the House of Representatives as creating some ambiguity with regard to the status of the position which does not exist. See TEX. CONST. art 15 §§ 2 and 7; TEX. ATTNY. GEN. OP. 0-898 (1939, G. MANN); and In re Texas Senate 36 S.W.3d at 120-1 as cited in notes 11, 12 of the KEFFER REQUEST.

Should you find, however, in light of these precedents, that there remains such an ambiguity, other precedents address manners of appropriate interpretation. When construing an ambiguous statute, a court should avoid adopting an interpretation that would lead to absurd results. Boykin v. State, 818 S.W.2d 782, 785-86 (TEX. CRIM. APP. 1991). In such a case, a court may presume that the Legislature did not intend for its efforts to lead to illogical consequences. Id. Although the present matter presents questions of constitutional rather that statutory interpretation and concerns an Attorney General’s Opinion as opposed to a court ruling, the same principle applies. Craddick asserts that under the Texas Constitution, the Speaker of the House is a “statewide” officer who can be removed from office only by impeachment. If accepted, Craddick’s interpretation of the relevantprovisions would create the possibility of an absurd result.

Under the Texas Constitution, the House can expel a representative with the consent of two-thirds of House members. See TEX. CONST. art III, § 11. Thus, the House of Representatives alone could expel the member who happens to be serving as Speaker. That person would no longer be a member of the House, but if one follows the reasoning set forth in the Craddick Brief, that person would still be the Speaker. Thus, the presiding officer of the House would be a person who is no longer a member of the House.

This would be an absurd result, and the possibility of this absurd result demonstrates that the drafters of our Constitution did not hold Craddick’s view.

In addition to addressing the four questions posed by the requesters, the Alliance also addressed concerns relating to a brief filed by House Parliamentarian Terry Keel, a former State Representative and attorney who was appointed parliamentarian following the resignation of Parliamentarian Denise Davis after Speaker Craddick issued his ruling on motions to vacate the chair during the 80th Legislature.

"Regardless of whether or not Mr. Keel is serving as both parliamentarian and Special Counsel as Denise Davis did during her distinguished tenure, the position of Parliamentarian has been, historically, a position which advises all members of the house even though it is appointed by the Speaker. Speaker Craddick has already attempted to use the guise of attorney-client privilege to make confidential much of Mrs. Davis advice when she was parliamentarian because she was also a licensed attorney. We believe that because Mr. Keel, who is also a licensed attorney, may have a significant conflict of interest. In his brief, he supported most of Speaker Craddick's arguments. Yet, the Parliamentarian serves all members of the House, many of whom disagree strongly with Speaker Craddick's assessment of this situation," Leibowitz said. "We believe Mr. Keel should recuse himself from this situation; his position represents all members of the House, but his brief is in tune with Speaker Craddick note, measure, and verse. Clearly, there may be some issues covered under the Texas Disciplinary Rules of Professional Conduct [for attorneys] which deserve closer attention," Leibowitz said.

In its brief, the TPA noted:

Regardless of whether Mr. Keel now serves as a special counselor, it is clear that Speaker Craddick has now tailored the position of Parliamentarian and instructed the Parliamentarian to act such that the parliamentarian speaks for the Speaker and is his representative. This places Mr. Keel in direct conflict with his other clients, the remaining 149 members of the Texas House of Representatives.

Obviously, Mr. Keel is placed in this unique position of conflict because of his status as a lawyer, which is not a requirement for serving as Parliamentarian in either chamber of the Texas Legislature, though it has become a custom in recent years. However, it does not overshadow the fact that the Parliamentarian has, by longstanding custom and past practice, represented the House of Representatives and not the Speaker[.]

The Alliance sincerely hopes that the OAG’s Opinion Committee will look at the precedents in this case and issue a fair ruling, Leibowitz noted.

***The Texas Progressive Alliance is a confederation of more than 50 bloggers and Internet activists. It was founded in 2006 and includes many of Texas' most prominent blogs and bloggers.***

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