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.

Comments

[OtisAH]

I like how you include the answer as to why they acted — that he’s still technically a member — and then carry on with your question anyway.

[KenveeB]

Yeah, with the dismissive handwave of "I'm sure that's not the case," presuming he knows the governing laws better than the relevant legislature does.

[Gandydancer]

Why is Slaton’s career “probably over”? The whole point of his resigning is to escape penalties for having been expelled when he runs again for the same seat, as I understand it. It’s a single-party district where all he needs is the (D) nomination, which may not be much of a barrier.

edit: OK, nvm, I confused this case with the TN ones.

[Frank Drackman]

Wild guess that the expelled member isn't Afro-Amurican or there'd be protests already.
So what did he do? Diddle an Intern?

Frank

[Krychek_2]

https://freethoughtblogs.com/pharyngula/2023/05/09/every-accusation-a-confession/

[Frank Drackman]

A man had sex with a woman?? what a wierdo!!!!

[Krychek_2]

Why am I not surprised that you thought that was the point of the article.

[Frank Drackman]

It IS the point,
Barney Fag paid for sex with a man and stayed in Orifice (literally) for another 20 years

[Krychek_2]

Was the man a teenager whom Barney Frank got drunk and then raped? No? Then what does that have to do with this?

[Gandydancer]

She was 19. Where does the "then raped" bit come from?

Clinton had sex with Monica, and it was... undignified. But it wasn't rape.

And, no, alcohol beforehand shows nothing relevant.

[Krychek_2]

Did you read the linked article? From the fact that she was intoxicated.

[Gandydancer]

No, I didn't, but if all there was in there is that she was intoxicated then that doesn't make it rape. Lots of sex takes place when the individuals involved are intoxicated. What part of "no, alcohol beforehand shows nothing relevant" used words too hard for your tiny little brain?

[Krychek_2]

Well, maybe you should read the article. For the time being, "no, alcohol beforehand shows nothing relevant" and "the moon is made out of green cheese" are logically identical. I realize I used a four syllable word but I'm sure you can look it up if you haven't seen it before.

[Krychek_2]

And Frank, there's a reason most people here, including people who agree with you, mostly ignore your comments: You're a complete buffoon. You say, "Oh, this case is about sex, and the Barney Frank case was about sex, so they must be the same." No, they're not. This case is about getting a teenager drunk and then raping her; Barney Frank's case was about sex between consenting adults (albeit where money changed hands).

It's like a surgeon removing someone's liver instead of their gallbladder and then saying, "Oh, well, an organ is an organ so the two must be the same."

[Mr. Bumble]

Now do Harvey Milk.

[Krychek_2]

Only after you explain WTF Harvey Milk has to do with this thread.

[BrotherMovesOn]

It's just Bumble and his effeminate "now do ..."s.
His dainty, daily non-sequiturs.

[Mr. Bumble]

Politician having sex with minors.

[Gandydancer]

The nitwits for whom HM is a martyr never let little facts that contradict their manias into their craniums. Same for MLKJr.

[Krychek_2]

I have seen accusations that HM was a pedophile but other than accusations on right wing sites I've not seen actual evidence. Assuming he was, it's possible to be a terrible human being and still be a martyr if you're killed for a cause.

[bevis the lumberjack]

A maker of law plying someone who by law is too young to drink and then coercing them into barely remembered sex. Frank thinks that’s ok I guess.

Personally I think there’s a case for rape here but unfortunately no one will make it. Hopefully his wife gets his balls in the divorce.

[Krychek_2]

Bevis, I just want to say that it's nice you and I are on the same side of an issue for once.

[bevis the lumberjack]

Yep. Guys like this just piss me off no end.

I was a VP at four different offices and there were times that I was the head person in an office of 50ish people. I was expected to treat people with respect. Including the women. Which I managed to do - hell, it was actually easy.

If I could do it, then assholes like this can do it too.

[Gandydancer]

The question isn't whether he's an asshole, but the ease with which you swallow the allegation that the asshole is a rapist. The woman was 19 and I'm pretty sure that that's past the age of consent in TX. And I'm not seeing any allegation that she was tied down in order to pour the alcohol down her throat.

[bevis the lumberjack]

Oh, yeah. She was eager to have a fling with a fat ugly guy more than twice her age. That’s why he had to get her blind and bulletproof drunk first.

Don’t sprain anything throwing garbage at the victim.

[BrotherMovesOn]

Krychek, apologies, I 'disappeared'
your comment above by accident.

[Gandydancer]

The idea that giving drinks to a 19 y/o in a private residence is a crime anywhere is a joke. As is the idea that such need result in one being unable to consent to sex. Yeah, if she was comatose that's different. But I'm not going to assume it.

[Krychek_2]

His fellow Republicans all seem to disagree with you.

[Gandydancer]

And why would I give a fuck about that?

[Krychek_2]

Because it shows it's not a partisan witchhunt. The evidence seems to be pretty solid if his own partisans are getting rid of him.

[Krychek_2]

But of course I wouldn't expect you to make logical connections or anything.

[bevis the lumberjack]

“the evidence seems pretty solid”

He admitted it to a couple of colleagues and asked them to zip their lips.

[Frank Drackman]

"Raping" is doing alot of work there,
and the girl was 19, in what jurisdiction is that a problem.
You can't fuck a woman when she's drunk? before I met my wife that's the only woman I could fuck.
And there was a little more to the Barney Fag case than 2 Homo's loosening each other's sphincters. Little matters of fixing tickets, (I believe the legal term is "Obstruction of Justice")
Can you tell I don't like Barney Fag? maybe because he's such a cheapskate he got his Bypass Surgery done at Bethesda Naval on the Taxpayer's dime and he's not a Veteran.
Oh, and everyone who took care of him said he was a prick.

Frank

[Rev. Arthur L. Kirkland]

Barney Fag

Does this blog generate right-wing bigots, or instead merely attract them?

[Gandydancer]

Barney WAS a fag, shacked up with a fag sex entrepreneur. The truth isn't bigotry.

[Nige]

No, the bigotry is the bigotry.

[Krychek_2]

No, but using homophobic slurs is.

[Gandydancer]

That admitted fags are fags is the truth, not a “slur”, and I’m not required to admire the breed whether you like it or not.

[Rev. Arthur L. Kirkland]

The Volokh Conspirators welcome your homophobic slurs, Gandydancer.

Thanks to your contribution, they won't need to publish a racial slur for another few days (unless they're really itching to do so).

This frees them to spend even more time combing the internet for stories about Muslims, transgender sorority drama, drag queens, transgender parenting disputes, white grievance, lesbians, etc.

[Krychek_2]

What about admitted n*gg*rs? If you call someone the N-word, is that the truth or a slur?

[Frank Drackman]

I borrowed that from former Texas Rep Dick Armey who said it in 1995

[Dr. Ed 2]

What we don't know is who the woman was.

A married former-minister who (presumably) is also officially anti-alcohol (as most Baptists are) is itself a lot, but what if she also was a "saving myself for marriage" virgin as well? Who *only* was willing to go to the evil city of Austin because her parents trusted him as a "Man of God."

Note that it's his own side condemning him...

[bevis the lumberjack]

We know that she was below the legal drinking age in Texas. That’s pretty much all you need to condemn this asshole.

[Gandydancer]

Nonsense. The legal drinking age in TX is a joke with no normative claim on anyone.

Now, Slaton is a slimy hypocrite, but that doesn't mean the woman didn't consent. So is Bill, but Monica was eager, as were many of the women summoned to his rooms by State Troopers in Arkansas. There's no accounting tastes.

[bevis the lumberjack]

A state official involved in making laws induced someone to break the law for his own purposes. Someone who was subordinate to him at work. Something he did to at least three people. Yep, nothing to see here.

Try to make sure your knuckles don’t drag on your way out.

[Gandydancer]

As I said, the legal age to be given a drink in a private setting in TX is a joke. There is not the slightest evidence that I know of that the adult woman was coerced or that the sex wasn’t consensual. You can try to pull your panties out of your butt-crack any time you want to.

[Krychek_2]

The "as you said" part disqualifies it from being taken seriously.

[F.D. Wolf]

The Cadaver Synod. (also called the Cadaver Trial; Latin: Synodus Horrenda) is the name commonly given to the ecclesiastical trial of Pope Formosus, who had been dead for about seven months, in the Basilica of St. John Lateran in Rome during January 897. The trial was conducted by Pope Stephen VI, the successor to Formosus' successor, Pope Boniface VI. Stephen had Formosus' corpse exhumed and brought to the papal court for judgment. He accused Formosus of perjury, of having acceded to the papacy illegally, and illegally presiding over more than one diocese at the same time. At the end of the trial, Formosus was pronounced guilty and his papacy retroactively declared null.

https://en.wikipedia.org/wiki/Cadaver_Synod

[Mr. Bumble]

Is something similar in Trumps future?

[Frank Drackman]

Well they'd have to bury Sleepy Joe first.

[Frank Drackman]

Wow, don't remember that one in Sunday School

[Currentsitguy]

I went to Catholic Hight School. We learned about this in Church History class. I'm glad that they taught it warts and all.

[Bored Lawyer]

Did they first issue a writ of habeas corpus papam?

[Dr. Ed 2]

Don't forget that Oliver Cromwell was also exhumed -- and then his corpse executed.

[apedad]

Looks like the expulsion was about salary too not just authority.

"The (expulsion) vote came a day after Slaton resigned Monday and more strongly solidifies his ouster. Had Slaton not been expelled, he would’ve remained an officeholder and kept his pay until a successor was elected through a special election."

https://www.statesman.com/story/news/politics/state/2023/05/09/rep-bryan-slaton-texas-legislature-house-expels-after-sexual-misconduct-finding/70199588007/

[Gandydancer]

Dunno if it's "about" that, but it proves Murr right anyway.

[txattorney]

Josh—

Here’s the answer:

https://statutes.capitol.texas.gov/Docs/CN/htm/CN.16/CN.16.17.htm

The Texas Constitution has a holdover provision for elected offices. It prevents gaps in service that have implications for the operation of smaller governmental entities. For instance, a three-person special district wouldn’t have a quorum sufficient to do business post-election if two new members joined and had not yet qualified under state statute to take on their obligations. Ideally, this provision prevents a situation where a smaller governmental entity would not have sufficient statutory authority to operate. As applied here, I don’t think Slaton’s declaration of resignation prevents him from exercising his authority as a member as a legal matter, even if politically he’ll never cast another vote. What’s more, no one has called an election to fill the vacant seat and nothing prohibits him (legally) from rescinding his resignation.

At bottom, the issue isn’t moot legally-even if it’s moot politically.

[ReaderY]

If you’re right, then that’s probably dispositive of the issue. If the expulsion has a material effect – salary which would otherwise continue stops immediately – it’s probably legally valid. You’re probably right to argue that someone who remains a “member” for purposes of continuing to draw a legislator’s salary also remains a “member” for purposes of continuing to be subject to the expulsion clause.

[Brett Bellmore]

Looks like the office is considered vacant for purposes of finding a replacement at the moment the resignation is accepted by the relevant authority, or at the latest 8 days after receiving the letter of resignation, if they decline to act on it.

So, assuming they declined to accept the resignation, they had an 8 day window during which the office was legally not vacant, and he still exercised the power of the office. That seems to cover the necessities for being considered to still be a member, no? The difference between being a member, and "just" occupying the office and exercising its powers seems pretty minimal.

So I'd say, yeah, he was still a member, and they could expel him, since they were well within that 8 day window.

[Noscitur a sociis]

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.

So... what is the pragmatic reason why late-expulsion would be problematic?

[ducksalad]

He puts these non-sequiturs in so we'll know ChatGPT didn't write it.

[John F. Carr]

Can you murder a man who is already dead? You can at least attempt to.

[Bored Lawyer]

Impossible attempt!

[ducksalad]

You can even attempt to murder someone who never existed.

Hell, you could even go to jail for trying to hire a non-existent hitman to kill a non-existent victim, ordering the hit to take place on February 29th of an odd-numbered year.

[Social Justice is neither]

It seems appropriate to me if the resignation/expulsion are contemporaneous as the resignation would just be a means of evading accountability by cutting off consequences. Limiting this as a form of permanent threat with time limits seems appropriate though.

Same goes for laws that get implemented only to be repealed to avoid being struck down so the legislature can reimplement it once the current case is mooted.

[cmcc_aus]

The salary of a Texas legislator is pretty small -- I believe it's only $7200/year, plus per diem while the legislature is in session. But a legislator's pension benefit is significant, is based on time-in-service, and is calculated as though the legislative salary were the same as that of a state district judge. That can add up to real money.

[bevis the lumberjack]

The salaries are low in part because they meet for a couple of months every other year.

We here in Texas get to spend the manioc our time without having to worry about being screwed by new laws/rules.

If only we could arrange that for the feds.

[Dilan Esper]

You can't fire me! I quit!

[A Guy]

The upshot of expelling him now for this, is that he can lay low for two years, get elected again, and the House is constitutionally barred from expelling him for it again.

They preempt the calls for his ouster later, if they expel him now.

[Dr. Ed 2]

He WON'T get re-elected.

[ducksalad]

Depends on his district and whether the word gets out. He'd be certain to draw primary challengers, but not necessarily ones with the resources to run a good campaign. Most people can't remember the name of their state representative off the top of their head, and scandals only stay in the news for a few days.

He could win just off name recognition in the primary and that (R) beside his name in the general.

[jdgalt1]

I take it, then, that a Texas impeachment does not bar that person from future office, as a federal impeachment can?

[Paul Elliott]

A more important question: Can the Senate confirm a nominee that the President has withdrawn? The constitution says nothing about a President withdrawing a nomination. Someday this will be important in a lame duck session where the outgoing majority want to keep the President from confirming an even more polarized Nominee. If the Senate can confirm a withdrawn nominee, then it will become customary for majorities not of the President's Party, to put nominees on hold until the lame duck session.

[Mr. Bumble]

You have too much time on your hands.

[Brett Bellmore]

No, there was actually some prospect of the Senate trying that with Garland, if Clinton had won. I recall it being discussed as a possibility at the time, and thought that was the reason they never held a vote on him: They wanted to keep the nomination alive just in case.

[John F. Carr]

The Senate gives consent then the President signs the paperwork to officially appoint the person.

A situation like the one you describe came up in Massachusetts. Outgoing governor Jane Swift nominated some judges said to be of poor quality. The appropriate body confirmed them. They started serving before all the paperwork was in order. Incoming Governor Romney reluctantly signed the commissions.

[Gandydancer]

Also see Marbery v Madison.

[Mr. Bumble]

What would you expect from Mittens.
How does someone legally serve before the legal requirements (paperwork in this case, whatever that means) are met?

[jdgalt1]

This author seems confused about some of the facts in the second Trump impeachment. The impeachment was only possible because, when the House voted to impeach, Trump was still in office. The Senate vote after he left was legal because the potential penalty of disqualification from future office was still possible -- but if the House had waited until after January 20 to vote to impeach, that action would not have been valid.

[Mr. Bumble]

It still seems like a stretch.

[Jason Cavanaugh]

Seems that you can't even keep your own argument consistent.

There is no requirement that someone still be in Office in order to be impeached for actions taken while in Office.

[Brett Bellmore]

Sure there is:

"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Once you're not in office anymore, you're not an Officer of The United States anymore. QED.

Now, impeachment is just an indictment, and, as Jdgalt1 says, once impeached, the actual trial could come after they've left office, as leaving office doesn't render the outcome entirely moot.

[Vandalia]

Texas is "sui juris", but given the English origins of many American governmental institutions, I would point out that a member of parliament may not directly resign his or her seat. Instead, he or she must be appointed to an "office of profit under the Crown" and that necessarily results in removal from parliament.

Therefore, given this historical background, the idea that a member of the Texas legislature may "resign" and yet still remain a "member" of that body for a period of time is not at all unusual.

[Krayt]

Krayt 1 min ago (edited)
Ask this. He resigned. Before his successor comes in, could he still vote? If no, he’s gone and cannot be expelled. If yes, he can still be expelled.

Let’s ask the experts! I have no idea if he’s a Democrat or Republican.

If he’s a Democrat…
Democratic Constitutional Experts: Hell yeah he can still vote!
Republican Constitutional Experts: Nope!

If he’s a Republican…
Republican Constitutional Experts: Hell yeah he can still vote!
Democratic Constitutional Experts: Nope!

But aren't you more interested in whether he can run again?

Democrat and Republican experts: Oh, yeah!

If he’s a Democrat…
Republican Constitutional Experts: Hell yeah he can still vote!
Democrat Constitutional Experts: Nope!

If he’s a Republican…
Democratic Constitutional Experts: Hell yeah he can still vote!
Republican Constitutional Experts: Nope!

[Nige]

All you're really saying is that in a two-party adversarial system each party will argue for its own advantage. This is not earthshaking. It's like being cynical about prosecutors prosecuting and defenders defending in legal cases.

[The Margrave of Azilia]

I greatly appreciate your making the case for more political choices and more liberal ballot access for third parties.

[The Margrave of Azilia]

So, what happens if they refuse to accept someone’s resignation – can they arrest him for missing votes?

"Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide." /Texas Constitution, Article 3, Section 10.

https://statutes.capitol.texas.gov/Docs/CN/htm/CN.3.htm