MEMORANDUM RE: REMOVAL OF COMMITTEE CHAIRS

July 20, 2021

The below is written to assist me with responding to questions from constituents and is not a
substitute for legal advice. No attorney-client relationship is established or intended between the
author and any individual reading this Memorandum.

A. Background

On July 13, 2021, the House came to order and considered motions to excuse certain absent
members. Rep. Metcalf requested a roll call vote. Only 80 members voted. Rep. Metcalf then raised
a point of order under Rule 5, Section 6 that quorum was not present as reflected in the vote just
taken. The point of order was sustained. Speaker Phelan then recognized Rep. Metcalf, who moved
a call of the house under Rule 5, Section 7 to consider all matters included in the Governor's July 7,
2021 proclamation. At least fifteen members seconded. The motion passed 76-4. Speaker Phelan
again recognized Rep. Metcalf, who moved to instruct the Sergeant-at-Arms pursuant to Rule 5,
Section 8 to send for all absent members not excused under warrant of arrest if necessary to secure
their attendance. The motion passed 76-4. The House remains under a call of the house as of the date
of this memorandum.

B. Questions Presented and Analysis

1. May the speaker remove a chair of a substantive or procedural committee after

appointment during the same session?

No. All legislative power is derived from the people. TEX. CONST. art. I, § 2. The people have
chosen through the Texas Constitution to vest such power in the Texas House of Representatives
(the "House") and the Texas Senate. TEX. CONST. art. III, § 1. The House is vested with power by
the people to "determine the rules of its own proceedings." Id. § 11. In the absence of any enacted
rule, the House, like any other legislative body, has inherent authority to govern its proceedings as
Memorandum Re: Removal of Committee Chairs, Page 2

the majority sees fit. E.g., John Locke, THE SECOND TREATISE OF GOVERNMENT § 96 (Thomas P.
Peardon, ed, 1952) (1689); Thomas Jefferson, NOTES ON THE STATE OF VIRGINIA (Frank Shuffelton
ed., Penguin Books 1999) (1795) (footnotes omitted) (citing Brooke, Hakewell, and Puffendorf);
see also Thomas Jefferson, LETTER TO ALEXANDER VON HUMBOLDT (June 13, 1817) ("The first
principle of republicanism is that the lex majoris partis is the fundamental law of every society of
individuals of equal rights; to consider the will of the society enounced by the majority of a single
vote as sacred as if unanimous is the first of all lessons in importance.”).

Pursuant to Section 11, Article III of the Texas Constitution, the House has adopted its Rules of
Procedure (the "Rules") through H.R. 4 (87 Reg.). The speaker is charged by the House with
enforcing and interpreting the rules. Rule 1, § 1. In interpreting the Rules, like any other enactment
of the Legislature, the speaker must follow the general rules of statutory construction. See, e.g.,
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (setting forth general rules of
statutory construction applied to enactments by the legislature).

The Rules must be interpreted as a whole, giving due consideration to all of their provisions. See, e.g.,
Helena, 47 S.W.3d at 493. When the House includes a provision in one part of the Rules, but omits it
in another, the omission is presumed intentional. See, e.g., PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners
Ltd. P'ship, 146 S.W.3d 79, 84 (Tex. 2004). Further, when the House amends the Rules to omit a
provision, the remaining provision must be interpreted in such a way as to give effect to the change,
rather than render the amendment useless. See, e.g., Entergy Gulf States, Inc. v. Summers, 282 S.W.3d
433, 443 (Tex. 2009); Ex parte Trahan, 591 S.W.2d 837, 842 (Tex. Crim. App. 1979).

In Rule 1, Section 15, the House has vested power in the speaker to appoint chairs of standing
substantive and procedural committees:

Sec. 15. Standing Committee Appointments. (a) The speaker shall designate the
chair and vice-chair of each standing substantive committee and shall also appoint
membership of the committee, subject to the provisions of Rule 4, Section 2 . . . .
(d) The speaker shall appoint the chair and vice-chair of each standing procedural
committee . . . .

But, has the House vested power in the existing speaker to remove chairs in the middle of a
session? It has not. The House has vested power in the speaker to both appoint and remove the
speaker pro tempore in the middle of a session, as set forth in Rule 1, Section 10:

Sec. 10. Appointment of Speaker Pro Tempore and Temporary Chair. The
speaker shall have the right to name any member to perform the duties of the chair
related to presiding over the deliberations of the house and may name a member to
serve as speaker pro tempore by delivering a written order to the chief clerk and a
copy to the journal clerk . . . . The speaker pro tempore shall serve at the pleasure
of the speaker . . . .
Memorandum Re: Removal of Committee Chairs, Page 3

(emphasis added). But, this removal provision is missing from Rule 1, Section 15. By including
authority for the speaker to remove the speaker pro tempore in Rule 1, Section 10, but also omitting
authority for the speaker to remove chairs in Rule 1, Section 15, the House intended to deprive the
speaker of this authority. 1 See, e.g., PPG Indus., 146 S.W.3d at 84. The speaker may not read into
the Rules a phrase the House intentionally left out. See, e.g., Keene Corp. v. United States, 508
U.S. 200, 208 (1993) (declining to read language missing in one provision of statute that was
present in another provision because of the interpreter's "duty to refrain from reading a phrase into
[a] statute when Congress has left it out").

Further, the House through prior amendments to the Rules has indicated its intention to strip
authority from the speaker to remove committee chairs. The House first granted the speaker
authority to remove any chair or vice-chair in the 68th Legislature. 68 H. JOUR. 38 (1983). This
removal authority for committee chairs and vice-chairs was in subsection (e) of the committee
chair appointment provision in the 72nd Session. 72 H. JOUR. 34 (1991) ("All chairs and vice-
chairs appointed by the speaker under these rules shall serve at the pleasure of the speaker.").
However, this provision was intentionally struck in the 73rd Session, 73 H. JOUR. 49 (1993), and
has never been re-enacted. By specifically amending the Rules to strike this provision, the House
intended to remove the speaker's power to remove chairs of committees mid-session. The speaker
may not interpret Rule 1, Section 15 to render this amendment useless, but must give effect to it.
See Entergy Gulf States, 282 S.W.3d at 443; Ex parte Trahan, 591 S.W.2d at 842.

Finally, the House has separately vested power in a new speaker first elected in the middle of a
session to replace committee chairs. Rule 1, § 15(e)(3) ("If a new speaker is elected to fill a vacancy
in the office after the appointment of standing committees, the new speaker may not alter the
composition of any standing committee before the end of the session, except that the new speaker
may . . . designate a different member of a standing committee as committee chair."). By explicitly
including this authority for a new speaker, the House has implicitly denied that authority from the
existing speaker. See PPG Indus., 146 S.W.3d at 84.

Accordingly, the Rules do not vest authority in the speaker to remove committee chairs mid-
session. In order to vest power in the speaker to do so, the House would need to amend the Rules
to grant the speaker this authority like the House did in the 68th Legislature. An amendment must
be proposed by house resolution, referred to the Committee on House Administration, provided to

1
The House has separately provided authority for the speaker to remove officers of the house--which
are not committee chairs--using the same language that is missing from Rule 1, Section 15. Under Rule
2, Section 9(a), "[t]he parliamentarians are officers of the house who serve at the pleasure of the
speaker." See also H.R. 3 at art. 4, § 4.02(a) (2021) ("Officers of the house authorized to be appointed
under this section shall be appointed by and serve at the pleasure of the speaker. Employees of the
house responsible for supervising the departments and divisions that support the operation of the house
shall also be appointed by and serve at the pleasure of the speaker.").
Memorandum Re: Removal of Committee Chairs, Page 4

each member at least 48 hours before consideration, and must be adopted by a majority vote. Rule
14, § 2. Alternatively, the House could suspend the rules to authorize the speaker to remove
committee chairs, but such action requires a two-thirds vote. Rule 14, §§ 3-5.

2. May a majority of the members of the House present and voting remove a chair
of a substantive or procedural committee while no quorum is present?

No. While the speaker lacks authority to remove committee chairs, it is undisputed and universally
acknowledged that the House may exercise its authority pursuant to Article III, Section 11, of the
constitution to amend or suspend its rules and enact other measures pursuant to its legislative power
under Article III, Section 1, of the constitution necessary for its proceedings to remove a member as
chair of a standing or procedural committee. See Rule 14, § 2 (providing procedure for amending
Rules by majority vote adopting resolution referred through Committee on House Administration);
Rule 14, §§ 3-5 (providing procedure for suspension of rules by two-thirds vote). But, no quorum of
the House is currently present to amend the Rules or enact any legislation removing a chair from a
substantive or procedural standing committee.

Article III, Section 10, of the constitution permits less than a quorum of the House to compel the
attendance of absence members:

Sec. 10. QUORUM; ADJOURNMENTS FROM DAY TO DAY;

COMPELLING ATTENDANCE. 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.

The House has provided for the compulsory attendance of absent members. See Rule 5, § 8
(permitting the House to direct the sergeant-at-arms or another officer to send for and arrest absent
members to secure and retain their attendance and to "determine on what conditions they shall be
discharged"). 2 The House has separately provided, however, that no other action may be taken while
a quorum is absent except "a motion to adjourn or a motion for a call of the house and the motions
incidental thereto . . . ." Rule 5, § 6. The Rules are silent on what is meant by the term incidental.

It is the standard practice of the House for the speaker to follow well-reasoned prior precedents in
the House on interpreting the Rules. E.g., 87 H. R. Man. xiii (2021). House precedent establishes
that a motion to recess is not an incidental motion. 56 TEX. LEGIS. MAN. 257 (1959) (now codified

2
It should be noted that Congressional precedent has interpreted the discharge provision to relate
primarily to the payment of a fine. E.g., HINDS PRECEDENTS § 3013 ("On February 24, 1881, the
Speaker pro tempore held that on a call of the House the House might excuse a Member on the
payment of a fine, basing his decision on the line of the rule: And the House shall determine upon
what condition they shall be discharged.").
 Memorandum Re: Removal of Committee Chairs, Page 5

into Rule 5, § 8). While no House precedent has considered whether a motion to remove committee
chairs is incidental, if a relatively simple procedural motion like a motion to recess is not incidental,
then it seems likely that a motion to impose a substantive and permanent change to a committee
chairmanship would not be incidental.

Further, where the Rules are silent and no prior House precedent is on point, Rule 14, Section 1,
directs the speaker to follow the rules and precedents of the United States House of Representatives
and Mason's Manual:

Sec. 1. When Rules Are Silent. If the rules are silent or inexplicit on any question
of order or parliamentary practice, the Rules of the House of Representatives of the
United States Congress, and its practice as reflected in published precedents, and
Mason’s Manual of Legislative Procedure shall be considered as authority.

According to the precedents of the United States House of Representatives, a quorum is not required
to "dispense with all further proceedings" because such motion "touches" a call of the house. HINDS
PRECEDENTS § 2994. Likewise, a resolution revoking leaves of absences is in order because it is a
proceeding "to compel attendance of absent [m]embers." Id. § 3003. On the other hand, a resolution
seeking to enforce a separate statutory provision to deduct from members' pay is not in order because
it is not a measure to compel the attendance of absent members. Id. § 3011. Such an affirmative
measure would require the "action of a majority of the House when transacting its ordinary
business." Id.

A motion to remove a committee chair does not compel the attendance of an absent member, since
it is not conditioned on the member returning to the House.3 Thus, it is not incidental to a motion to
adjourn or a motion for a call of the house. Rather, it is a punishment for improper conduct that can
only be pursued once the House regains a quorum.

Accordingly, while the House has authority to remove chairs and vice-chairs of substantive and
procedural committees, it may only take this substantive action with a quorum. 4

3
While this Memorandum does not address directly what penalties may be imposed on an absent
member as a condition of discharge under Rule 5, Section 8, Congressional precedent has
principally interpreted such conditions to merely include the payment of a fine. See note 2, supra.
Article XVI, Section 41, of the constitution, which prohibits offering "privilege or personal
advantage" to another member of the Legislature "to influence him in the performance of any of
his public or official duties," may prohibit the House from conditioning a member's return to the
House on retention of a committee chair position.
4
Whether such action may be taken by a simple motion or through a house resolution amending the
Rules is a separate question beyond the scope of this Memorandum. Regardless of the avenue
authorized and pursued, quorum is required.