Dustin Burrows, call your lawyer.
Burrows is the Republican speaker of the state House in Texas. After the
members of the Democratic caucus who had left town to foil Republican efforts
to re-gerrymander the state’s congressional map returned home, Burrows decided
to play sheriff. He ordered the returning Democrats to sign a pledge agreeing
to have a 24/7 police escort that could collar them in the event they made
another run for the border. Those who didn’t accept his terms were told they
would be arrested if they even attempted to leave the legislative chambers.
Enter Democratic Representative Nicole Collier, who represents a Forth Worth district. Collier told Burrows what he could do with the pledge. She read the form, thought about the implications, and flatly said: no way. In her words, she wasn’t going to live under police guard like a criminal suspect.
Calling Burrows’s bluff, Collier settled into her enforced quarters. For the last few days, she’s been sleeping in chairs on the House floor—like a traveler abandoned in an airport terminal. Tuesday morning, she posted a photo of herself asleep on the House floor.
And she has been giving interviews to national media that make Burrows and his colleagues, including House Administration Committee Chair Charlie Geren, look like the oafish jerks that they are.
It’s all made Burrows’s tough-guy posturing look petty and overbearing, especially since the Democrats had returned to town and cleared the way for Republicans to redraw the state map to squeeze out five more seats. They had done so only after California Democrats had moved forward with a plan to counter Texas with their own redrawn map with five new Democratic seats, a plan the California Supreme Court has now green-lighted.
What authority, you might ask, does Burrows have to deprive Collier of her liberty? The uncontroversial answer: none.
The rules of the Texas House include a provision that permits a so-called “civil arrest” (a dubious category in itself—an arrest is an arrest and is subject to Fourth Amendment restrictions) of lawmakers who have fled the state to break quorum. The Texas Supreme Court upheld that power in a 2021 decision, but it made clear that House Rule 5 applies only to compel the attendance of “absent members.”
Of course, Collier isn’t absent. She’s sitting right there on the floor of the House chamber. By her account, she’s never even tried to slip out a side door. The law, by its plain terms, gives no authority to hold her against her will or to threaten her with arrest for refusing an escort.
Collier has filed a habeas corpus motion asking the Texas court to order her release from custody. It is a pristine use of what Chief Justice John Marshall once called “the Great Writ”—she’s being detained on the orders of a state official with no legal justification. Her petition should be a slam dunk.
But that’s not necessarily the end of it. Consider the situation once Burrows’s proffered legal justification falls away. Stripped of the legal cover of House Rule 5, Burrows is operating outside the bounds of the law and is guilty of multiple offenses.
Start with the tort of false arrest. There is no doubt that Collier has been arrested: Applying the textbook definition of arrest, a reasonable person in her position would not feel free to leave. Texas law defines false arrest, a.k.a. false imprisonment, as the unlawful restraint of a person without legal justification.
Texas law does not shield officials who act in bad faith or outside the bounds of their authority. Geren appears to have exposed himself to extensive civil liability should Collier decide to sue him.
Then consider the Texas crime of unlawful restraint, which the state defines as the intentional or knowing restraint of someone without consent. Or “official oppression,” which occurs when a public servant acting under color of law intentionally subjects another to unlawful arrest.
And what about federal civil rights violations? 18 U.S.C. §242 makes it a
crime for a person acting under color of law to willfully deprive someone of
constitutional rights, and Burrows here sought to deprive Collier and other
Democrats of their liberty based on their constitutionally protected activity.
Dustin Burrows, call your lawyer.
All these developments, of course, depend on the independence of Texas state courts and the integrity of the Texas and federal law enforcement systems. The state, of course, is under the whip hand of Governor Greg Abbott and Attorney General Ken Paxton. It may be, in that setting, that all bets are off. And we can be certain that Pam Bondi’s Department of Justice is not going to bring a federal civil rights case against the Texas Republican House speaker with Maxine Collier as victim.
But if Burrows is able to escape the consequences of his unlawful, politicized conduct, it will only confirm that Texas has been captured by the same arrogant bullying, lawlessness, and delusion of omnipotence that have already corrupted the rule of law under Trump.
It’s the all-too-familiar premise that authority exists to dominate the opposition, and the law means whatever the leader says.
In any event, Democrats, who already scored a resounding public relations victory when they fled the state, leaving Texas Republicans feckless and tilting at windmills, have once again secured the upper public relations hand. Collier, pictured camped out on House chairs like a delinquent child at the overbearing command of the Republican speaker, is the kind of image that resonates.
Burrows has blundered badly. The law is against him, as will become apparent; and his officious overreach is likely to harm him in the national public eye. Instead of the domination he seeks, he is likely to go down as a lawless, thin-skinned, vindictive bully, like the president he emulates.
