Legislative Law Bulletin

I will have a longer post about the Texas Senate’s adoption of its rules for the 81st Legislature and the controversial decision to exempt “voter identification” legislation from the 2/3rds rule. In watching the proceedings this afternoon and evening, I was struck by the almost-absolute inability of Senators and the Presiding Officer to observe regular legislative procedure. The experience was similar to watching a high school middle school student council meeting. Having closely observed the Senate since the late 1980s, but not so much of late, I was very surprised.

**Update below.**
The financial management of the Pedernales Electric Cooperative has been the focus of countless newspaper articles, legislative hearings and at least one lawsuit. The Austin American-Stateman reported today on the release of a 390-page report by an outside consultant that “offered a sweeping indictment . . . of the utility’s old regime and a critical portrayal of former General Manager Bennie Fuelberg while raising new questions about past actions by former executives and insiders.”

Senate Business & Commerce Chairman Troy Fraser, the cooperative’s chief legislative critic, told the paper that “[n]ow it’s time to put people under oath.”

Now, the paper didn’t say, and the Horseshoe Bay Republican didn’t elaborate on, who would be administering the oath or in what forum. Let’s assume, however, that the Senator meant that he would be calling those “former executives and insiders” to testify under oath before his committee. And although the paper didn’t say so, it earlier reported on the pending criminal investigation. So, let’s assume for a moment that a parade of coop executives and insiders are called before the committee next year.

Friendly advice to those called: You might want to show up, assert that what you are about to say will incriminate you, and tell all.

Why? Because Texas law provides that you cannot be “indicted or prosecuted for any transaction, matter, or thing about which the person truthfully testified or produced evidence.” Tex. Govt. Code § 301.025(c). The privilege is absolute; it applies regardless of whether the witness testified under subpena or voluntarily. Op. Tex. Atty. Gen. No. M-206 at 2 (1968). A witness must answer truthfully and responsively for the immunity to apply. Id.

This privilege is provided because “[a] witness called . . . by a legislative committee does not have a privilege to refuse to testify to a fact” by asserting the witness’s Constitutional rights against self-incrimination. See Tex. Govt. Code  § 301.025(a). The only way the Legislature can take away those rights is by providing the absolute immunity from criminal proceedings. Ferrantello v. State, 256 S.W.2d 587, 594  (Tex. Crim. App. 1952).

The statute makes sense because it permits adequate inquiry by the legislature by removing the self-incrimination obstacle. Consider allegations of prosecutorial misconduct, such as failing to refrain from prosecuting or threatening to prosecute a charge that a prosecutor knew was not supported by probable cause or other conduct involving dishonesty, fraud, deceit, or misrepresentation or otherwise constituting obstruction of justice. A witness must be able to testify fully and freely about the prosecutor’s actions without worrying that the prosecutor would attempt to imidate him with prosecution on trumped-up charges.

Perhaps this seems like letting a wrong-doer off easy, and that will surely be the result at least once, and might be the result here. However, the Legislature can often act much faster than the courts or even the Executive branch. As the branch closest to the people and directly responsible to them like none other (even considering our elective plural executive or our elective judiciary), the Legislature is in an unique position to remedy the situation at the coop. Since legislative changes to the coop’s governance and operations are  needed, the Legislature needs a full record of the misdeeds and wrongdoing in order to craft its enactments accordingly. The absolute immunity thus aids the Legislature in providing quick, effective relief to citizens. For that, the tradeoff is worth it.

UPDATE: A reader asks some good questions I will briefly answer. The first question is “Do you have to be called to testify to be covered by the privilege?” The answer is no, you do not have to be called by the committee; your presence may be voluntary and the privilege applies. The second question is “What if you just sign up as a witness,and start blabbing the truth after saying what you’re about to say possibly will incriminate you, do you get immunity?” Probably not, since the incriminating testimony needs to be in response to a question by a committee member that is relevant to the proceedings. For example, I don’t think immunity applies to a person confessing to a murder when appearing before House Ways & Means to discuss the franchise tax. The third question is “Has a legislator ever called a witness explicitly so that the witness can get immunity (in an effort to help that person avoid prosecution)?” While this is almost like trying to prove a negative, I do not have any notes where someone has made this allegation.

The Boston Globe notes GOP vice presidental nominee Sarah Palin’s response to a second grader’s question about the duties of job she seeks: “But also, they’re in charge of the United States Senate, so if they want to, they can really get in there with the senators and make a lot of good policy changes that will make life better for Brandon and his family and his classroom. And it’s a great job and I look forward to having that job.”

While technically the vice president could function as the Senate’s equivalent of the Speaker of the House and exert major influence over legislation and policymaking, senators would have to grant her that power. And historically, senators have refused to do it.

For example, the Vice President generally has no independent right to address the Senate from the chair absent unanimous consent or other indulgence of the Senate. Riddick, Senate Procedure at 1390, 1391-1392. It is true that the Vice President has made “long statements from the chair” in the past. Id. at 1391. An examination of those precedents show that the statements were made by Vice President Alben Barkley, who was held in high esteem by his colleagues since his days as Senate leader under Roosevelt. The seminal episode demonstrating this came during World War II when he famously resigned his post as leader because he could not support FDR’s veto of a tax bill. After he voted with his colleagues to override the veto, they re-elected him as leader. There may be other times when the Vice President spoke at length of the chair, but I cannot readily locate them in the Senate’s published precedents.

Unlike Tom Craddick, Palin could not attempt to control debate by refusing recognition because the Senate Rules require the Vice President to recognize the first Senator who asks the chair for recognition. U.S. Sen. R. XIX  § 1(a) (providing that “[w]hen a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him“) (emphasis added.)

Further, Palin cannot exert control over policymaking because she has no role in appointing the Senate committees that have the greatest control over shaping policy thru legislation — the Senate itself appoints committees and committee chairs by a resolution embodying the selections of the majority and minority party caucuses. See id. at R. XXIV § 1.

Finally, I would note that Lyndon Johnson, who went from powerful majority leader to figurehead vice president, asked his former colleagues to allow him to be the “permanent presiding officer” of the Senate Democratic Caucus in 1961 in an attempt to keep operating as a “super-leader.” The request was approved by less than unanimous consent after bitter debate showing that the senators didn’t like the idea and Johnson gave up trying to lead the Senate as vice president.

If Lyndon couldn’t do it, I doubt Sarah can.