An Analysis of the Speaker’s Argument Concerning the Process by which He Can Be Removed
I received an e-mail this morning containing a scholarly analysis of the speaker’s argument that he can only be removed from office under the provision of the Texas Constitution authorizing the House to expel any of its members by a two-thirds vote.
The author is known to me as an expert, but I am not going to publish the name without permission. It is my intention to ask permission.
I have also presented my own comments pertaining to the speaker’s argument as it was entered in the House Journal. It is considerably less scholarly, but I hope no less valid.
The analysis follows:
The naming of the Speaker in the Constitution does not prevent the House from choosing a new Speaker at any time. The language of the constitutional provision merely requires the Speaker to be chosen at the beginning of each legislative session because, as a matter of law, there is no Speaker at the beginning of the regular session since all representatives run every two years. See Tex. Const. art. III, §§ 4, 9. Since a Speaker is required to be a representative, his term as Speaker ends when his term as a representative ends. See id.
The House has removed a sitting Speaker before. See 12 H.J. Reg. 1474, 1480 (1871). The wording of the constitutional provision relating to the Speaker at that time is practically identical to the current constitutional provision. Compare Tex. Const. art. III, § XV (1868) (providing that the “House of Representatives, when assembled, shall elect a Speaker”) with Tex. Const. art. III, § 9(b)(providing that the “House of Representatives shall, when it first assembles, organize temporarily and thereupon proceed to the election of a Speaker”).
The Speaker of the U.S. House of Representatives is a constitutional officer in that the Constitution names that office in its text. U.S. Const. art. I, § 2, cl. 6 (providing that the “House of Representatives shall chuse their Speaker”). It is well-settled that the U.S. Speaker may be removed from office by a resolution presenting a question of privilege declaring the office of Speaker vacant. 6 Cannon § 35.
The Texas Constitution provides for the mode of removal of the Speaker when its provides that “[e]ach House may determine the rule of its own proceedings[.]” See id. art. III, § 11. Under this section, the Chair has repeatedly held that it is for the House to decide its procedure. During the election of the Speaker on the opening day of the 80th Legislature, the Chair stated, in overruling a point of order by Mr. King of Parker against the use of a secret ballot, that “Article III, Section 11, makes it clear that this house may determine the rules of its own procedures, which includes adopting rules for the procedure for electing a speaker.” 80 H.J. Reg. 11 (2007).
The general provisions of Article XV, Section 7, Texas Constitution, relating to do not prevail over the specific provisions of Article III of the Constitution giving the House the authority to elect a Speaker and determine its own rules of procedure. As the Chair correctly observed:
It is important to note that Texas courts do have a well-established standard in dealing with conflicting constitutional provisions. “In construing apparently conflicting constitutional provisions, a general provision must yield to a special provision.” (See Carrollton-Farmers Branch I.S.D. v. Edgewood I.S.D. (Tex. 1992); San Antonio & A.P. Ry. Co. v. State (1936); County of Harris v. Shepperd, (1956); City of San Antonio v. Toepperwein (1911)). The only provisions . . . that specifically deal with the election of a speaker are the timing requirements of Article III, Section 9, and the explicit recognition of non-viva voce voting requirements for the election of legislative officers under Article III, Section 41.
Id. at 11-12.
Thus,the Texas Constitution does not provide an explicit procedure for the election of a Speaker because it commits that procedure to the sound discretion of the House by permitting the House to adopt its own procedures. This is why the Members adopt a resolution on opening day specifying how the Speaker will be elected. E.g., 78 H.J. Reg. 8-9 (2003) (showing resolution adopted by the House governing the nomination and election of a speaker of the 78th Legislature). If the House can specify how to elect an officer, it can specify how to remove an officer since House is the electing authority.
It is not at all clear that the Speaker is a state officer embraced by the meaning of the Article XV, Section 7. While considering where local legislators held civil office, the Sixth Court stated that it is “settled law that a legislator is not a ‘civil officer,’ the speaker of a legislative assembly is not a ‘state officer,’ the members of state Legislatures are not ‘officers of the state,’ subject to impeachment, and this will hold true even though the State Constitution may fail to expressly give the legislative body control over its own members.” Diffie v. Cowan, 56 S.W.2d 1097, 1101 (Tex. App.— Texarkana 1932, no writ). If the Speaker is not a state officer, then the Speaker would be the only office named in the Constitution that could not be removed from office by the Members who elect him. See Tex. Const. art. XV, § 2 (providing for the Senate trial of the impeachment of the “Governor, Lieutenant Govenor, Attorney General, Commissioner of the General Land Office, [and] Comptroller”) and at § 8 (providing for removal of judges by address of each of the Legislature).
Finally, it would not be proper to use impeachment proceedings to remove a Speaker because impeachment would have the practical effect of requiring the Senate’s consent to the removal of a solely legislative officer, the Speaker, which is not the case when the Legislature impeaches a Lieutenant Governor who also performs executive functions as acting Governor. See Tex. Const. art. IV, §§ 16, 17 (providing that the Lieutenant Governor acts as Governor or becomes Governor under certain circumstances and may be impeached).
Simply put, the Speaker is no more than a member of the House of Representatives elected by the citizens residing within a single member district just as any other member of the House. The Speaker serves as the presiding officer at the will of the House and can therefore be removed by the will of the House.