From Texas Supreme Court Justice John Devine's dissent from denial of petition for writ of mandamus today in In re Hotze:
In our republican form of government, the relationship between citizens and their political representatives is sacred and constitutionally protected. "[T]he people are the sovereign," but they express their will and govern through their duly elected representatives. For that to happen, our elected representatives must be free to communicate and share information with their constituents. The freedom of political dialogue and association is of such "transcendent importance" to "the maintenance of democratic institutions" that the Texas Constitution expressly guarantees the right to speak, to assemble, and to petition our government. These bedrock principles of freedom are the foundation of an enduring democracy.
But at a historic moment for our great state, these rights are imperiled by rules adopted in connection with the impending impeachment trial of Warren Kenneth Paxton, Jr., the third-term Attorney General of the State of Texas. In an unprecedented move, the Senate, sitting as the "Court of Impeachment," has adopted Rule of Impeachment 10, which broadly prohibits political representatives from talking to their constituents about "any matter relating to the merits of the proceedings before the court of impeachment." In a corollary measure, Rule 10 also requires the presiding officer of the impeachment court to issue a "gag order." The presiding officer has complied by issuing an extremely broad suppressive order that threatens representatives with contempt, criminal confinement of up to six months, and monetary penalties. In effect, if not by design, the gag order chills our representatives from engaging in constitutionally protected attributes of our government….
Our Constitution grants an "inviolate" right to "speak … on any subject." At the very core of this protection lies political expression. Speech between constituents and their representatives about the merits of impeachment and removal is undoubtedly political. In many ways, it is archetypically political.
