The Volokh Conspiracy

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Can The Texas House Expel A Member Who Already Resigned?

There are some parallels to late impeachment.


On Tuesday, the Texas House unanimously voted to expel Rep. Bryan Slaton. But on Monday, Slaton submitted his resignation. Wasn't the situation be moot? Well, according to Rep. Andrew Murr, who led the investigative committee, Slaton didn't actually resign. Murr announced on Facebook:

Though Representative Slaton has submitted his resignation from office, under Texas law he is considered to be an officer of this state until a successor is elected and takes the oath of office to represent Texas House District 2.

Perhaps this rule is correct under Texas law, but it would seem strange. Could it really be that a member who resigns, and does not wish to exercise the legislative power, would still continue holding that power? Would a different rule pertain if the member dies? Would a corpse continue holding the office until a successor is elected?

Let's assume that Murr is wrong, and that Slaton did actually resign. Can the House expel a member who no longer holds office? Here, there are some clear parallels to the late impeachment debates.

Article III, Section 11 of the Texas Constitution governs explusion:

Sec. 11. RULES OF PROCEDURE; PUNISHMENT OR EXPULSION OF MEMBER. Each House may determine the rules of its own proceedings, punish members for disorderly conduct, and, with the consent of two-thirds, expel a member, but not a second time for the same offence.

The text applies to "members," which seems to refer only to a person who currently is a member. A member who resigned his office would be a former member. I suppose the House could, pursuant to its own rules of proceedings, redefine "members" to include "former members." But that sort of rule would be ultra vires, and beyond the scope of the expulsion provision. I think it prudent for legislatures to narrowly construe the sole process by which a duly-elected member can be removed from office.

There is a pragmatic reason why late-expulsion would be problematic. Under the federal Constitution, with late impeachment, the Senate could disqualify the former-officeholder from holding some future office. But with expulsion, there is no similar disqualification. Indeed, an expelled member could be voted back into the exact same office.

Slaton's career is probably over, so this explusion will likely not be challenged in the courts.