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Supreme Court might leave 'wiggle room'

By J. Lyn Carl,

Austin, TX – Monday's order by the Texas Supreme Court, a one-sentence denial of a petition for a writ of mandamus, was amended later in the day with another single-sentence from three of the nine members of the court.

The original order denied a petition by Gov. Rick Perry and Lt. Gov. David Dewhurst for a writ of mandamus to force the 'Texas 11' back to Texas to complete the business of the Texas Senate. The 'Texas 11' are Senate Democrats who two weeks ago broke the Senate quorum by fleeing to New Mexico to stop a controversial congressional redistricting bill from coming to the Senate floor.

In its original one-sentence order Monday, the Supreme Court noted, "The following petition for writ of mandamus is denied: In re: Rick Perry, governor of the state of Texas, and David Dewhurst, lieutenant governor of the state of Texas and president of the Texas Senate."

Later in the day, the order was amended and this sentence added, "Justice Hecht, Justice Owen, and Justice Smith concur in the denial of the petition for writ of mandamus but would add the notation: "The Court denies the petition for writ of mandamus without regard to the merits of the constitutional arguments."

The three justices adding the notation are Justices Nathan Hecht, Priscilla Owen and Steven Smith.

Austin political consultant Tony Proffitt said the amended order "leaves the door open for further consideration under different circumstances."

The Texas Supreme Court generally is used to hearing cases that have made their way through the court system, not hot potato legislative issues whose first court appearance is being dropped on the high court's doorstep.

Attorneys for the 'Texas 11' said in their response to the GOP leadership's petition for a writ that for the high court to intervene would exceed the court's "limited statutory authority," would "violate bedrock separation of powers limitations set forth in the Texas Constitution" and would "be an unconstitutional intrusion into the legislative function."

The response also argues that the Supreme Court has no jurisdiction over individual members of the legislature and has "no statutory authority" over them. They note that the two houses of the legislature have authority through their own rules to compel attendance of absent members and the high court should not be involved in interpreting or enforcing those rules.

They argue that "courts have uniformly held that judicial enforcement of a legislative body's procedural rules violates the separation of powers." The response notes "it is the role of the legislative body, not the courts, to interpret and enforce its own rules."

Gov. Rick Perry said Monday a court resolution is "critical" to ending the standoff between the Senate Democrats and the GOP leadership. "Without a legal resolution, this constitutional abuse will be used in the future to again bring our government to a halt," he said.

And with the addition of "wiggle room" from the amended order by three of the court's justices, the door could still be open for a court decision on the issue.

On the other hand, Dewhurst indicated the remaining Senate members may take things into their own hands today when the Senate gathers again. He hinted Monday that the remaining senators might come up with their own "appropriate measures" to force the 11 to return. Those "measures" are also hinted to be in the form of fines. The question now is whether the remaining senators have the authority to impose fines or other measures unless they are specifically outlined in the Senate's rules, which were approved by Senate majority when the legislative session began.

To view the 'Texas 11's' response to the GOP petition for the writ of mandamus that was denied Monday, click on the link below.