Texas’ Constitution explicitly enables the possibility of a so-called “quorum break,” the Supreme Court of Texas ruled in 2021, although it also allows for consequences to bring members back.

Legal experts say it would be difficult to argue that engaging in a quorum break qualifies as abandonment of office.

“I am aware of absolutely no authority that says breaking quorum is the same as the intent to abandon a seat,” said Charles “Rocky” Rhodes, a constitutional law expert at the University of Missouri law school. “That would require the courts extending the premise to the breaking point. It’s inconsistent with the very text of the Texas Constitution.”

Chad Dunn, a former attorney for the Texas Democratic Party, said proving abandonment of office would require showing that the member had failed to perform the duty of their office and intended to relinquish the seat, both of which he argues are not evident in a quorum break.

“It is not just an option, but one of the features of elected office to decide whether to appear and help establish quorum,” Dunn said. “Each member as part of their duty of office must make that decision.”

Paxton himself has acknowledged that this would likely be a lengthy and complicated process, telling conservative podcaster Benny Johnson that they’d have to bring individual lawsuits in each district.

“This Court’s precedent is clear that a ‘quo warranto’ proceeding ‘can only be brought by the attorney general, a county attorney, or a district attorney.’ In re Dallas County, 697 S.W.3d 142, 152 (Tex. 2024) (orig. proceeding). Further, the Constitution charges ‘the Attorney General’ with the obligation ‘to represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party.’ … As a result, the Court should not dismiss the Governor’s petition until the Speaker’s Friday deadline passes and the Attorney General can be heard on these weighty issues.”