Tom Craddick was right all along, according to Attorney General Greg Abbott: "A court would likely conclude that the Speaker of the House is a state officer." And Abbott said impeachment isn't the only way to remove a speaker and that the Constitution doesn't prevent or require the House from replacing a deposed speaker in mid-session.
That agrees with Craddick's position on those issues. Abbott didn't get into the Speaker's authority to recognize or not recognize members for motions and questions from the floor, saying that's a matter of House rules and that, as a member of the executive branch, he's got no legal business playing there.
Speakers can be impeached, with Senate approval, or expelled by two-thirds of the members of the House (there's a question in that: can you expel a speaker who won't recognize a motion for expulsion?), or booted for bribery convictions, or cast out if they lose an election contest that undoes their right to be in the House in the first place. But in the absence of a House rule making it possible, they apparently can't be ousted by a motion to vacate the chair.
The full opinion is available here, and here's the text of Abbott's summary:
SUMMARY (from text of opinion)
The Texas Constitution and state statutes are silent as to whether the President Pro Tempore of the Senate and the Speaker of the House are "officers of this State" for purposes of removal from office under article XV, section 7 of the Texas Constitution. Thus, any interpretation of this question must be governed by court decisions. The Texas Supreme Court has issued one opinion and adopted one opinion concerning article XV, section 7 removal—the Dorenfield and Knox cases. Although neither decision is a model of clarity, they are the best authority available.
In both Dorenfield and Knox, the courts found the officers in question—the San Antonio State Hospital Superintendent and a member of the Texas Review Commission—to be state officers. Although not purporting to lay out an exhaustive list of potential factors, the two decisions examined, inter alia, whether the officials’ offices were created by law, whether the officers performed sovereign or governmental functions that affect the public as a whole and are continuing in their nature, whether they served terms fixed by law, and whether they took constitutional oaths of office.
Applying this analysis, we believe a court would likely conclude that the President Pro Tempore of the Senate is not a state officer. Although the President Pro Tempore’s office is created by law and requires a constitutional oath, the office’s relevant duties are primarily provisional in nature, having effect only in the absence of the Lieutenant Governor, and the term of office is not fixed by law.
Applying the same analysis, however, a court would likely conclude that the Speaker of the House is a state officer. The Speaker’s office is created by the Texas Constitution. The Speaker performs numerous sovereign and governmental functions that affect the general public, including the substantial and ongoing statutory responsibility of serving as Joint Chair of the Legislative Budget Board. The Speaker most likely serves for a fixed term: his tenure explicitly begins when the House first assembles and temporarily organizes, and, due to his ongoing duties imposed by law, must continue until the next session commences. Finally, the Speaker takes the constitutional oath of office in addition to his oath as a House member.
The Texas Supreme Court has concluded that a Texas Review Commission member and the Superintendent of the San Antonio State Hospital are state officers. Given those holdings, we believe a court would likely conclude that the Speaker’s substantial sovereign and governmental functions affecting the general public as a whole exceed those exercised by the Texas Review Commission member and the Superintendent of the San Antonio State Hospital and, as such, the Speaker is an officer of the state.
As a state officer, the Speaker is subject to impeachment under article XV, section 7 of the Texas Constitution. But the fact that the Speaker can be impeached under article XV, section 7 does not mean that impeachment is the only means of removing a Speaker.
At a minimum, both the Speaker and the President Pro Tempore are subject to expulsion under article III, section 11 of the Texas Constitution or exclusion under article XVI, section 2 of the Texas Constitution. Indeed, section 665.007 of the Government Code expressly provides that “the remedy of impeachment as provided in this chapter is cumulative of all other remedies regarding the impeachment or removal of public officers.” Tex. Gov’t Code Ann. § 665.007 (Vernon 2004) (emphasis added). Accordingly, impeachment is not the only way to remove a Speaker.
If the Speaker were impeached, the Texas Constitution allows the impeachment judgment to extend to, but need not include, removal from office or disqualification from holding office. And if the Speaker were legally removed from office, article III, section 9(b) of the Texas Constitution—on its face—neither requires nor precludes the election of a new Speaker by the House.
Finally, this office will adhere to the Texas Constitution’s separation of powers doctrine and longstanding precedent in declining to answer questions requiring an interpretation of Senate and House Rules or questions regarding legislative parliamentary decisions.
The ruling is an answer to questions lawmakers posed after the legislative session. Craddick asserted "absolute power" over recognizing members, saying there's nothing in House rules that forces him to entertain questions or motions, including motions designed to remove him from the presiding officer's chair.
It was a definitive moment in his speakership. Members — some, anyway — wanted to move to "vacate the chair" and never found out whether they had the votes to do that or not. Why? Because before you can have a vote, the official question has to be posed to the full House, and Craddick's ruling was that only he can determine which questions get posed.
The ruling held for the remaining days of the session, but the war continues, both in the elections and in the questions sent to Abbott in the weeks after the end of the legislative session.
Legislators filed piles of briefs arguing the fine legal points, but the questions, really, boil down to: Does the speaker have the powers he claimed? Can speakers be removed in mid-session? If they are removed, can they be replaced right away?
And the positions basically fell into variations on these questions. Does the AG or anyone in the executive branch or the judicial branch have the constitutional power to tell the House how to conduct business? Is the speaker a creature of the state constitution or a creature of House rules (that goes to the question of who regulates him, if anyone)? Does anything in the constitution protect the speaker and his powers from the will of the House in the middle of a session? Is there a way to remove and/or replace a speaker in mid-session, or is that something that happens only as the House convenes at the beginning of each two-year cycle?
Abbott's decision to collect briefs and take his time with this surprised some observers, especially those who thought he was playing — unnecessarily — with the nasty political virus that rages on both sides of the aisle in the Texas House. He had an easy out, lawyers said: He could say the House gets to make it's own rules, and then that the constitutional questions are best left to the courts.
And since the opinions of Texas attorneys general have no legal weight, a firm ruling wouldn't bind the players in the political fight, and could only splash Abbott with those House germs. Put it this way: It's been difficult to find someone to say Abbott would extract a plum sticking his thumb in this particular pie.