Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
Early in the 2023 legislative session, Republican House Speaker Dade Phelan vowed to present “a very innovative solution” to combat the surge in migrants attempting to enter Texas from Mexico — one that would test the limits of states’ roles in immigration enforcement.
The proposal Phelan teased, known as House Bill 20, sought to create a team of police and deputized citizens to patrol the southern border. The legislation, which critics said would empower “vigilantes” and endanger the lives of asylum seekers and Hispanic Texans, died when Democrats killed it with a procedural tactic. And despite Republicans’ best efforts to revive a version of the measure, it never made it to Gov. Greg Abbott’s desk before the regular session ended.
HB 20 has since been overshadowed by Senate Bill 4, which lets any law enforcement officer arrest someone suspected of illegally crossing the border, a boundary-testing immigration law that has been put on hold amid legal challenges.
But the earlier proposal has resurfaced in the speaker’s own GOP primary as his critics blame him for its demise in their broader effort to paint the Beaumont Republican as soft on the border and overly deferential to Democrats. Phelan has slammed the attacks as “absurd” and “misleading” attempts to deflect from his oversight of other far-reaching border laws and a record $6.5 billion spending spree to pay for Abbott’s Operation Lone Star, which includes building a state border wall.
That has not stopped David Covey — the GOP activist and energy consultant who pushed Phelan into a May runoff for his House seat — from also condemning the speaker for not casting a vote on SB 4. Two of Covey’s most prominent backers, former President Donald Trump and Lt. Gov. Dan Patrick, have echoed the same attack.
House speakers rarely vote on legislation, and they control whether a bill can reach the floor — meaning SB 4 could not have passed without the green light from Phelan. The speaker argued as much in a post touting SB 4 as “the strongest border security law in the nation.” It would let authorities arrest people they suspect of illegally entering the state from another country and allow judges to order their removal, essentially granting deportation powers long reserved for the federal government.
The way immigration is playing into Phelan’s primary serves as a telling example of where things stand in Texas politics: the issue is being used as a cudgel to jeopardize the political career of a Republican speaker whose record includes an eightfold increase in Texas’ border security spending and passage of laws that dramatically expand state law enforcement’s immigration role.
Matthew Wilson, a political science professor at Southern Methodist University, said it’s no surprise that Covey is trying to convince voters he is more committed to border issues than Phelan, given that “poll after poll shows that immigration and border issues are a central concern for Republicans.”
Many of Phelan’s Republican allies have faced similar attacks even after voting for the entire slate of border legislation that made it through the Legislature last year. That strategy likely contributed to the record number of House Republicans ousted in last month’s GOP primary, a trend Phelan and several other incumbents are trying to forestall in the May runoffs.
Phelan is the first House speaker in 52 years to be forced into a primary runoff. The speaker is elected by the 150-member House when lawmakers convene in Austin every other year, meaning the outcome of Phelan’s race will not determine who wields the speaker’s gavel next January.
State Rep. Jacey Jetton, a Richmond Republican who carried a bill last fall that provided $1.5 billion for the border wall, said the immigration-focused attacks on Phelan and other Republicans are “absurd.”
“If the governor felt we could be doing more, we would be in a special session getting it done right now,” said Jetton, who was defeated in his primary by insurance adjuster Matt Morgan, a staunch Phelan critic.
For Phelan, the death of HB 20 also converges with one of Covey’s main arguments: that the speaker has afforded Democrats too much power by appointing them to chair nearly one-quarter of the chamber’s standing committees — a longstanding tradition — and declining to shield GOP bills from parliamentary attacks.
A Phelan spokesperson did not respond to a request for comment. The speaker has defended the practice of letting Democrats oversee some committees, arguing that it helps the Legislature avoid Congress-style gridlock without holding up conservative priorities. And he appointed fewer Democratic chairs in 2023 than he did two years earlier.
A difficult defense
Phelan may find it challenging to parry the attacks on his border record, Wilson said, because his defense comes down to matters of parliamentary nuance.
“Deceptive and misleading attacks are the order of today in our contemporary politics,” Wilson said. “There are lots of charges that get thrown back and forth between politicians that are unfair and misleading, and it is often hard, particularly when you’re dealing with procedural inside-baseball-type stuff, to educate the electorate.”
Phelan has tried to push back through his social media channels, arguing that Covey’s SB 4 criticism means he either “[knows] the truth and [is] still making the choice to lie to HD 21 voters” or “[lacks] a basic high-school-civics-level understanding of our legislative process.”
The speaker also recently rolled out an ad that features footage of him surveying the border in a helicopter while a narrator says he “has stepped up to help secure our border.”
Covey, asked about Phelan’s response, said the speaker “can attempt to explain away his previous comments and actions, but at the end of the day, the facts are clear.” He argued Phelan “was vocal about his opposition to SB 4 during the legislative process,” and now, “he realizes his seat is in jeopardy, so he is trying to take credit for it.”
As for the fact that speakers rarely cast votes, Covey argued that Phelan’s defense rings hollow because he voted to impeach Attorney General Ken Paxton last year.
“Phelan felt strongly enough to push a rushed impeachment process, but he couldn’t find the will to vote for SB 4, which serves to protect Texas families from the chaos taking place at our southern border,” Covey said.
Covey’s charge that Phelan once opposed SB 4 derives from a dispute between Phelan and Patrick — the Senate leader — over a key element of the bill: what to do with migrants after they were arrested for “illegal entry.” While the two chambers aligned on most of the bill, the Senate proposed jailing every migrant arrested, to the “extent feasible,” which Phelan said would be too expensive and lead to a “state-funded hospitality program for illegal immigrants.” The two chambers reached a compromise shortly after.
Covey has suggested that Phelan was opposed to SB 4 overall, pointing to the speaker’s criticism of the earlier Senate draft.
“The speaker’s purview”
GOP immigration hardliners were already skeptical of Phelan thanks to the defeat of HB 20, a precursor of sorts to SB 4 that would have established a “Border Protection Unit” to “deter and repel” migrants between ports of entry. It also sought to create a harsher felony trespassing charge for anyone caught “knowingly entering” Texas from a “neighboring jurisdiction.”
The bill, which allowed deputized everyday citizens to serve with licensed peace officers on the unit, was seen by some immigration hawks as a bold and needed approach to counter the surge of migrant crossings. Democrats and immigration advocates said it would spur racial profiling and endanger migrants and legal residents.
House Democrats killed HB 20 by raising a point of order, a maneuver often used to thwart legislation on technicalities near the end of a session. Phelan upheld the point of order based on the recommendation of the House parliamentarian, though critics argued the ruling was flawed and said Phelan should have taken the rare step of overruling the parliamentarian, who acts as a sort of referee for legislative disputes.
The speaker hires parliamentarians to draft decisions on points of order “so that they comport with precedent” and follow the House rules approved by members at the start of every session, said Andrew Cates, an Austin attorney and expert in parliamentary procedure at the Legislature.
“Technically, any rulings on points of order come from the speaker himself,” Cates said. “The parliamentarian is his employee and advises on House rules issues. The declaration of rulings is entirely in the speaker’s purview.”
With HB 20 and other points of order, Phelan theoretically could have overridden the parliamentarian’s decision and ordered a different ruling, Cates said. But that sort of move could be politically fraught, he added, citing former Speaker Tom Craddick’s refusal in 2007 to allow a vote on whether to remove him from power, which led to his parliamentarian’s resignation and, ultimately, the end of his speakership.
In any case, the Legislature eventually passed SB 4, along with another bill that imposes stiffer penalties for people convicted of smuggling immigrants or operating a stash house. The latter measure took effect earlier this year.
Lawmakers also agreed to spend more than $6 billion over the next two years to pay for an array of border security functions, most of which goes toward apprehending and jailing migrants under Operation Lone Star and building a wall along parts of the Texas-Mexico border.
“The Texas House has delivered under Speaker Phelan and the Republicans in the House made that happen,” Jetton, the ousted House Republican, said. “Those candidates saying otherwise are lying to voters for their own personal gain and voters should beware of such sinister attempts to deceive them.”
Disclosure: Southern Methodist University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
We can’t wait to welcome you to downtown Austin Sept. 5-7 for the 2024 Texas Tribune Festival! Join us at Texas’ breakout politics and policy event as we dig into the 2024 elections, state and national politics, the state of democracy, and so much more. When tickets go on sale this spring, Tribune members will save big. Donate to join or renew today.
