This column first appeared in the San Antonio Express News and other Hearst Newspapers on January 29, 2021.
Dear Mr. Premack: The legislature has come back into session, and I’ve read about the proposal for a referendum on secession of Texas from the US. I think it is an unpatriotic, insurrectionist idea and I cannot believe that any proud American who lives in Texas would support the concept. My emotions aside, can you tell us what the law is about secession, and whether this seditious idea is even legally tenable? – P.A.
State Representative Kyle Biederman (R-Fredericksburg) has filed HB 1359, calling for a referendum vote at the next general election on “whether this state should leave the United States of America and establish an independent republic.” If the bill were to pass and be signed by the Governor, and if the referendum were to then be approved by Texas voters, then the Secretary of State of Texas would have to inform the Texas legislature, the US President, and the US Congress of the vote. The vote would not be secession, it would be a prequel to revolution.
The next step in this prequel would be a “Texas Independence Committee” made of up the Lieutenant Governor, Speaker of the House, four Senators selected by the Lt. Governor, and four Representatives selected by the Lt. Governor. As the Lt. Governor is a Republican and the bill does not require the Committee to be bipartisan, the Committee would likely be composed entirely of Republicans.
The Committee would then make recommendations on a) how the Texas Constitution would need to be amended to create new officers, powers, and functions for the proposed new country, b) how Texas statutes would need to be changed to create new agencies and give them broad powers for the new country, c) how to negotiate issues with the US federal government, like changes to US federal law, how US citizenship would change for Texas residents, how US property in Texas would be handled, how money and trade would be handled, how travel to and from the US would be allowed, how Texans serving in the US military would be handled, how the Texas share of the federal debt would be handled, how Texas would defend itself and whether there would be a collective defense treaty with the US, how the US military bases in Texas would be handled, how postal mail would be handled, how employees of the US federal government who are Texans would be treated and whether they would lose their pensions, how Social Security payments and Medicare for Senior Texans would end, what Texas might to do about Senior income and medical needs, and probably a million other issues.
Note that successful secession from the US would end Social Security and Medicare for Texas Seniors. Secession would eliminate access to medical care for military retirees, and likely end pension benefits for both military retirees and those retired from civil service.
When the Committee’s recommendations get sent to the Texas legislature, the Texas Legislature would decide what is next. Should it vote to secede and implement the Committee’s recommendations? Additional public votes would be necessary, especially wherever a change to the Texas Constitution is sought.
So, patriotism, love of country, and other emotions set aside: would secession be legal? No. Texas became a state in 1845 by treaty, violated that treaty by seceding in 1861, and joined the confederacy a month later. General Sam Houston opposed secession in 1861 and was ousted as Governor by the rebellion. In 1865 the Civil War ended with defeat of the confederacy. Texas repealed its act of secession, declaring it null and void. Texas then passed a new state Constitution and met conditions for again sending representatives to Congress.
The US Supreme Court, in Texas v White (1869) stated that the union is indissoluble and perpetual. A state can only withdraw from the Union with consent of all the other states, or by successful revolution. The court ruled that Texas never ceased being a state. HB 1359 is a proposal to lay the groundwork for unilateral withdrawal from the union. If it passes and is approved by Texas voters, subsequent secession would still be illegal. Secession would be revolution, insurrection, and sedition against the United States.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.