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Legal matters

First Watson defense briefs filed

Just keeping an eye on developments.

Texans quarterback Deshaun Watson’s legal team on Monday filed a general denial of the 22 allegations of sexual assault and harassment, including their own claims that some of the massage therapists asked the football player if they could give him additional sessions.

The denial comes days after Watson’s attorney Rusty Hardin successfully pushed for the names of the women to become public, which he said would allow him to investigate and respond to the lawsuits. The Houston Chronicle does not typically identify victims of alleged sexual assault or harassment.

[…]

Hardin, in his response to the lawsuits, said that several of the women bragged about massaging Watson or praised him after their sessions. Others offered to work with him again, and one said she was attracted to Watson and wanted to go on dates with him, the attorney said.

Several of the women failed to disclose they had more sessions than what they said in their lawsuits, and some of them told others that they wanted to get money out of Watson, according to the filing.

Many of the women have also deleted or altered their social media accounts, where some evidence might have been found, Hardin said.

See here for the previous update. As was the case with the lawsuits themselves, do not rush to judgment about anything in the defense filings. More information will come out as the plaintiffs (and perhaps the prosecution) gets a chance to respond. Part of the job of the defense is to cast doubt on the accusers, and that is going to feel weird and perhaps aggressive. It’s not going to get any less uncomfortable from here. Sean Pendergast, who quotes from the defense brief and breaks down the different arguments being made, has more.

Watson cases consolidated

All in one court now, for your convenience.

All 22 sexual assault and harassment lawsuits against Texans quarterback Deshaun Watson have been consolidated to one Harris County court.

Both legal parties agreed on Friday that State District Judge Rabeea Sultan Collier should handle the cases until the time of trial. Any trial would then be returned to the originally assigned courtroom.

Court documents show that the cases have been consolidated. Collier said Friday she expected a panel of judges to meet and officially OK the agreement at an unspecified date.

The decision is primarily a matter of convenience for the judges, Watson’s attorneys and the lawyers of the 22 women bringing litigation. Rusty Hardin, Watson’s attorney, and Tony Buzbee, representing the women, said that it would be easier to exchange evidence in one courtroom instead of several.

See here for the previous update. I don’t need to be a lawyer to know that this is a normal thing, consolidating lawsuits like this. As a blogger who follows various legal cases, I drive myself crazy sometimes trying to tell from a bland news story whether a particular court action has to do with this lawsuit or that one or the other one over there. I appreciate the simplification.

In semi-related Watson news, don’t do this.

Football writer Aaron Wilson is no longer with the Houston Chronicle after he went on a Boston sports radio show and compared the women suing Deshaun Watson to terrorists, multiple sources told Defector on Friday.

The radio appearance was on The Greg Hill Show on WEEI on March 19. During the appearance, Wilson called the lawsuits “a money grab” and “ambulance chasing.” At one point during the conversation, when talking about the Watson case, he said, “In his case, you know, it’s kind of you don’t negotiate with terrorists. People are demanding money, they’re asking for money. It kept escalating, it kept going up and up and up. You’re talking about more and more funds, I’m not going to say how much it got to, but my understanding is, you know, that there was an admission that, it was, you know, something, you know just that this was, you know, just a money grab.”

Wilson has since issued an apology, but yeah. You can’t, and you shouldn’t, come back from that. We all have our thoughts and often conflicting feelings about the accusations against Deshaun Watson, but outside of the accusers and Watson themselves, no one knows anything. We should take the accusers seriously, and we should give Watson the chance to defend himself, and we should not jump to dumb and ill-informed conclusions.

UPDATE: The remaining cases against Watson have been refiled to include the plaintiffs’ names, minus one who chose to drop out.

Watson seeks names of accusers

This was going to happen sooner or later.

Attorneys for Texans quarterback Deshaun Watson on Thursday urged several state courts to require the disclosure of the names of the women accusing him of sexual assault and harassment — a move one legal expert called an intimidation tactic.

In a new court filing, defense lawyer Rusty Hardin lambasted the women’s attorney, Tony Buzbee, for holding a “trial by press conference” and making it difficult for Watson to respond to the 22 separate accusations without knowing who filed suit. The anonymous women, most of whom are massage therapists, allege that Watson assaulted or harassed them during sessions in 2020 and 2021 in Texas, California, Georgia or Arizona.

Hardin filed multiple requests Thursday but said he intended to file them in all of the women’s cases.

“Through the spectacle of the last few weeks, Mr. Watson has been unable to responsibly defend himself in the face of overwhelming national media coverage,” Hardin said in the filing for a special exception to the original petition. “Mr. Watson’s counsel cannot in good conscience publicly respond to the specific allegations being made because any response would be based on dangerous speculation about the identity of the accusers.”

[…]

The women are all officially listed as “Jane Doe” in court documents. Two Texas Rules of Civil Procedure prevent plaintiffs from filing civil claims using pseudonyms, Hardin said. One rule requires plaintiffs to state their name if it is known, and the other requires giving the defense fair notice of the claims involved. An exception is made for minors in sex assault cases.

A judge could potentially permit the defense to learn the identities of the plaintiffs but order the names not be released publicly, University of Houston law professor Meredith Duncan said.

Tahira Khan Merritt, a Texas attorney who litigates civil sex assault cases in state and federal court, said judges have discretion as to whether they would allow the case to proceed under a pseudonym. Prohibiting a pseudonym would merely be an intimidation tactic so early in a case, she said.

“The use of pseudonyms is very common across the United States,” Merritt said. “The only reason they would push it is to shut the victim up and discourage others from coming forward.”

Buzbee previously told Hardin he could provide the names if they used a confidentiality order, Hardin said.

As we know, two accusers have come forward publicly, but the others have not. At the court hearings today, they got some of what they wanted.

Two Harris County judges ordered in separate hearings on Friday that Tony Buzbee refile sexual assault and harassment cases against quarterback Deshaun Watson with the names of the accusers made public.

State district Judge Dedra Davis granted defense attorney Rusty Hardin’s request and asked that Buzbee refile a case in her court and disclose one of the women’s names within two days. Buzbee had suggested a private disclosure to Hardin for the women, who were initially all listed as “Jane Doe.”

A second judge, Rabeea Sultan Collier, made the same determination in the cases of three other women late Friday morning. Ten other women agreed to allow Buzbee to release their identities, and the woman in Davis’ court was “emboldened” and told Buzbee not to fight the judge’s decision, he said.

[…]

Hardin told Collier that making names public, while a concern for women’s safety, is also necessary for the defense. Since Solis and one other woman identified themselves during a Tuesday news conference, his team has received information about them from outside parties, he said.

Davis agreed that both parties needed fair treatment and that the women needed to be protected. But she agreed with Hardin that his use of publicizing the case in the media hurt his arguments.

“Everything’s been thrown into the spotlight,” she said. “I understand that you said in private you will allow the accuser to be known but it’s been very public.”

Collier heard arguments about 12 cases, nine of which were moot since the women agreed to have their names released. Solis’ case, the first to be filed, landed in her court, which means it is customary that any consolidation of cases would also move to her courtroom.

Hardin and Buzbee also agreed on a consolidation agreement Friday. All 22 women’s cases will proceed in Collier’s court before trial, but would move back to their original courts for a trial.

OK then. There are still hearings to be had for the remaining women, so we’ll see how that goes. We also now have a preview of the defense.

Deshaun Watson’s attorneys on Friday issued their first extensive defense of the star quarterback, alleging that every sexual act he partook in was consensual.

Rusty Hardin and a team of four women spoke from the Hilton Americas hotel downtown, issuing statements of support to the media and apologizing for remaining quiet as Watson was hit with 22 separate lawsuits of sexual assault and harassment. But the veteran, high-profile defense attorney also prodded reporters to look more closely at the behavior of the women’s lawyer, Tony Buzbee, who he said withheld the names of the anonymous plaintiffs until it was vital that they be made public through an emergency hearing.

[…]

Watson has been receiving two to three massages a week for four years, totaling sometimes to 150 a year, Hardin said. Most of the allegations seem to stem from 2020 and 2021 because the massage industry has changed over the course of the pandemic with the closure of spas and tendency of massage therapists to turn to Instagram for marketing, he said.

Watson, 25, largely operates from Instagram, and he doesn’t have a large team of massage therapists at his disposal through the Texans as many would believe, his attorneys said.

The female attorneys at the press conference clarified that they were not the only people from Hardin’s office on the lawsuits and did not appear to speak for appearances. They were only there because they wholeheartedly believe Watson, they said.

Attorney Leticia Quinones, a sexual assault survivor herself, said that she and other women on the team personally met with Watson and were convinced of his innocence. She urged the public to look at Watson’s “credit history” of good deeds in the community and success in overcoming a rough childhood.

She said Watson has a target on his back after signing a $160 million contract. He’s separately trying to leave the Texans.

“This 25 year old man was thrown in the depths of something he wasn’t accustomed to – money fam and stardom,” Quinones said.

Quinones added however, “I don’t discount anything that a young woman believes happens to her,” and after taking questions, Hardin agreed that “good guys” are capable of doing bad things.

Hardin said he simply wants to move the needle back to the middle in terms of public discourse following weeks of attacks from Buzbee’s team.

I’ve tried not to jump to any conclusions as the plaintiffs have made their accusations, and I’m going to continue to try to stay neutral as the defense begins to speak. There is sure to be a lot more said on all of this. Sean Pendergast has more.

Paxton sued by Twitter users

Maybe he should just get offline.

Best mugshot ever

A group of Texans and a free speech advocacy group are suing Texas Attorney General Ken Paxton in federal court, accusing him of unconstitutionally blocking nine people on Twitter for criticizing him or his policies on the platform.

The lawsuit also argues that being blocked from viewing Paxton’s tweets is a violation of the First Amendment because it limits the right of people to participate in a public forum and access statements made by Paxton. The account mentioned in the lawsuit, @KenPaxtonTX, is a separate account from the official account of the Office of the Texas Attorney General.

But Paxton uses the account to make official announcements, comment on local issues and defend his policies, according to the lawsuit.

“This information is relevant not just to the residents of Texas but to Americans more generally, given the national scope of many of the matters the Texas Attorney General’s office tackles,” the lawsuit says. “Those who are blocked from the @KenPaxtonTX account are impeded in their ability to learn information that is shared only through that account.”

[…]

According to the Texas lawsuit against Paxton, one plaintiff realized they were blocked after replying to a tweet from Paxton in January about a MAGA rally with “Enjoy the fresh air before you go to prison, Kenneth!” Another Twitter user learned they were blocked after replying with “wear a mask nerd” to Paxton’s tweet with a photo of him and another person at the Conservative Political Action Conference without masks, the lawsuit states.

Paxton’s action of blocking people who criticize him appears to be widespread, and he has “blocked many other individuals from the @KenPaxtonTX account based on their viewpoints,” according to the lawsuit.

The lawsuit asks a federal court to order that Paxton’s action of blocking users based on their critical tweets violates the First Amendment. The plaintiffs are also asking for Paxton to unblock them and everyone else who was blocked from the @KenPaxtonTX account “based on their viewpoints.”

As the story notes, there was a successful lawsuit against Donald Trump for the same thing – a federal appeals court ruled that Trump violated the First Amendment when he blocked Twitter followers, on his personal account that was also used to make official announcements. The suit was ultimately mooted by SCOTUS following Trump’s electoral loss and banishment from Twitter, so the issue isn’t fully resolved. It sure sounds to me like these plaintiffs have a strong case, though. Paxton is also involved in a separate fight with Twitter, because that’s the world we live in these days. I will of course keep an eye on this. The Chron has more.

Harris County Attorney sues Juul

From the inbox:

Christian Menefee

Harris County Attorney Christian D. Menefee filed a lawsuit Thursday in California state court against e-cigarette company JUUL and several of its executives. Harris County is the first governmental entity in Texas to join the nationwide fight to hold JUUL accountable for the deliberate and deceptive marketing of its highly addictive and destructive products to young people.

“JUUL took its marketing plan from the tobacco industry’s template by creating an image that would lure teenagers. JUUL’s vaping devices are designed to appear like a slick, high-tech gadget that’s attractive to young people. The brand even offers kid-friendly flavors like mango and cool mint,” said Harris County Attorney Menefee. “Cigarette companies were long ago barred from engaging in this type of marketing. Our youth do not deserve to be exploited by a company looking for a lifetime of profits. My office will hold JUUL accountable for its exploitative and negligent practices designed to create the next generation of nicotine users. Lawsuits were a major reason that federal regulators finally reined in cigarette industry, which has caused so much death in this country. I will continue that tradition by making sure JUUL doesn’t get away with the same behavior.”

The lawsuit contends JUUL targeted young people by using social media to showcase the product as a lifestyle brand. The company also adopted a “Make the Switch” campaign to mislead the public that e-cigarettes were benign smoking cessation devices, even though JUUL was never designed to break addictions.

In fact, JUUL’s e-cigarettes were designed to maximize addiction through its patented nicotine delivery mechanism. The CDC’s website warns of nicotine’s harmful effects on the developing brains of adolescents, and how JUUL’s products have also caused lung and cardiovascular injuries. JUUL also took advantage of the loose regulations for e-cigarettes, and made sure its products and advertising do not contain any health risk warnings.

As part of this lawsuit, the Harris County Attorney’s Office is also suing cigarette giant Altria, which owns 35% of JUUL and other companies like Philip Morris. Altria was instrumental in helping JUUL develop its marketing tactics, using its well-developed playbook.

You can see a copy of the lawsuit here – it’s quite long. This was filed in California because that’s where Juul is based, but there’s more to it than that. There’s already a bunch of lawsuits against Juul over its marketing practices in California, and they are basically combined in what is known as a Judicial Council Coordinated Proceeding, their term for when there are multiple similar lawsuits across different judicial districts. This Law.com article, which is mostly paywalled, gives a bit of an outline of what that means. If you look at the Harris County filing, you’ll see that it’s also in this JCCP, in the same court that the Law.com story references.

As I understand it, these cases all have similar claims, some filed by government entities and some by private plaintiffs, and a subset of lawyers from them will lead the litigation. The idea is for Harris County to be among them. Harris is the first county in Texas to file this kind of lawsuit against Juul. The county needed to get permission from the Attorney General’s office to hire outside counsel for the suit, on a contingency basis, which it has received. Other state AGs have taken action themselves, including California and New York. It’s certainly possible that Texas will follow along that path – I’m old enough to remember the massive tobacco lawsuit settlement that Texas and then-AG Dan Morales got in the 90s – but that remains to be seen. If that does happen, the state can file its lawsuit here.

The only news story I found relating to this when I looked was from Click2Houston, which mostly recaps the press release. I’ll be keeping an eye on this.

A Watson accuser has come forward

Listen to what she says.

The first of 22 women to file a sexual assault and harassment lawsuit against Texans quarterback Deshaun Watson spoke out on Tuesday, coming forward publicly in response to the defense team’s questions over the accusers’ identities.

At a news conference in attorney Tony Buzbee’s downtown high rise office, licensed massage therapist Ashley Solis shared her experience as a woman who is now struggling in her profession in the aftermath of the alleged assault. Buzbee then distributed pages of documents showing messages that he claims Watson sent to some of his clients, and his associates named a second woman who filed one of the lawsuits.

Solis said she now has difficulty touching patients without shaking, and on several occasions she has had to end sessions early.

“We were all deceived into thinking that Deshaun Watson was a great guy,” Solis said. “Unfortunately we know that good guys can do terrible things.”

Watson’s attorney, Rusty Hardin, released a lengthy statement containing a series of email exchanges allegedly between Buzbee’s camp and a Watson representative, claiming Buzbee sought $100,000 to settle Solis’ allegations just one month before he filed her suit.

“Mr. Buzbee himself repeatedly claimed that the litigation he filed on behalf of other Jane Does ‘isn’t about money,’” Hardin said. “In fact, according to the documentation below, Mr. Buzbee sought $100,000 in hush money.”

Separately, he said Buzbee has not turned over any of the documents he shared with the media. Hardin has previously criticized Buzbee for failing to give him the names of his clients, which he says prevents him from investigating the claims.

See here for the previous update. I would much rather live in a world where no one ever had any reason to accuse Deshaun Watson – or anyone else, for that matter – of any kind of inappropriate sexual behavior. One is allowed to have complicated feelings about all of this. I’m still wrestling with a lot of contradictory emotions and reactions, and I’m a pretty lukewarm Texans fan. While Deshaun Watson and Rusty Hardin have the right to defend his actions and his reputation, Ashley Solis deserves to be treated with respect. She’s already being attacked by trolls, which is a great illustration of why very few women make this kind of accusation lightly, and why most of these plaintiffs have remained nameless so far. Watson and Hardin will get their chance to question her account and her veracity, and we will get to make up our own minds about it, hopefully once all the evidence is in. Let’s all please try not to be jackasses about this.

I mention Watson and Hardin defending Watson’s reputation because that is very much at issue here.

Nike has suspended its business relationship with Texans quarterback Deshaun Watson, who is facing 22 civil lawsuits that allege sexual assault and harassment.

“We are deeply concerned by the disturbing allegations and have suspended Deshaun Watson,” Nike said in a statement e-mailed to the Chronicle. “We will continue to closely monitor the situation.”

Beats by Dre also has terminated its relationship with Deshaun Watson, according to sources not authorized to speak publicly. Watson had a business relationship with Beats by Dre since he was drafted in the first round in 2017 out of Clemson.

Also, Reliant Energy has dropped its relationship with Watson as a brand ambassador is over.

“Reliant is aware of pending civil lawsuits and a criminal investigation involving Deshaun Watson, Houston Texans quarterback,” Reliant said in an email. “Our relationship with Watson as a brand ambassador was scheduled to end this spring prior to these allegations, and there are no plans for future engagements or contracts with him. We take accusations of this nature very seriously. With respect to the legal process, we do not have any further comment on this matter.”

Not hard to understand why these companies took this action. The stakes overall are a lot higher than endorsement deals, but this is a significant development. Sean Pendergast has more.

Why lawsuits?

If you’ve wondered why the women who have accused Deshaun Watson of sexual harassment and assault have filed lawsuits against him instead of police reports, this Chron story offers some reasons.

The 22 women suing Deshaun Watson for allegedly sexually assaulting and harassing them have been criticized for not first taking their allegations to police.

But experts say a civil suit is often a sexual assault victim’s best shot at justice.

“In a civil case, you can expect a broader range of accountability,” said Elizabeth Boyce, general counsel and director of policy and advocacy for the Texas Association Against Sexual Assault. “You might settle before trial and that might include a public acknowledgment and apology.”

[…]

But experts said there are myriad reasons why a victim would choose to file a case in civil court instead of a criminal complaint — including compensation to pay for any emotional and medical care needed after an assault.

“Victims of sexual assault had something stolen from them,” said Noblet Davidson, founder and clinical director of enCOURAGE Trauma Center in Houston. “They need to be compensated. If you get in a car accident, you get compensated.”

The fear of being outed, for example, can deter a victim from filing a police report, Boyce said — especially when the alleged perpetrator is famous.

“Confidentiality and privacy is always at the heart of these cases,” Boyce said. “Honestly, it’s a fear of any victim of sexual assault that this is going to result in some sort of public condemnation or harassment.”

The nation has seen it play out over and over again, Boyce said.

When California professor Christine Blasey Ford testified before Congress, alleging that now-Supreme court Justice Brett Kavanaugh had sexually assaulted her in high school, she received death threats. She and her family had to move multiple times and had to pay for a private security detail.

[…]

For some victims, taking their assault to police can seem hopeless.

Not only are they retraumatized each time they have to describe their assault, Boyce said, but it can also seem as if they are not in control of the outcomes.

“In criminal cases, the state doesn’t represent the victims, they represent the state and they control every aspect of the case,” Boyce said. “And so often (the cases) are refused for prosecution for a variety of reasons — if they think they can’t win or they think there’s too much political pressure.”

The criminal investigation process also is intrusive and time-consuming, with court hearings, follow-ups with police and medical appointments, said Olivia Rivers, executive director of the Houston-area advocacy nonprofit Bridge Over Troubled Waters. Officers may show up at the victim’s house or workplace. Family and friends — who the victim may not want to tell about the assault — may be interviewed to corroborate the report.

“A sexual assault exam can take hours,” she said. “How do you explain to your family why you were at a hospital for that long? Or how do you explain to your employer why you had to miss so much work for court?”

Additionally, the burden of proof also is lower in a civil court than in a criminal prosecution. Civilly, the victims only have to show a preponderance of evidence, but in criminal cases, authorities have to prove beyond a reasonable doubt that the assault happened.

Therefore, it can easier for victims to get some form of justice in a civil court, whether it be a public apology or a monetary award for pain and suffering — especially when there isn’t enough physical evidence to criminally convict a perpetrator.

“Sexual violence … isn’t taken seriously by society,” Rivers said. “This about having their voices heard.”

Sometimes, victims might seek both criminal prosecution and civil damages.

At least one alleged victim has done exactly that, and others may follow. In the meantime, lawsuit #22 is on the books. We won’t know how successful this approach is until we have some resolutions in these cases, but the reason why the lawsuits were filed should be clear.

Parents sue Katy ISD over its mask mandate

Someday, these dumb stories will stop happening. Others will replace them, to be sure, but this type of dumb story will eventually fade away.

A group of parents are suing the Katy Independent School District, calling its continued requirement for masks in schools unconstitutional and a violation of Gov. Greg Abbott’s executive order from last month that lifted the statewide mask mandate, among other COVID-19 safety restrictions.

The lawsuit, filed Thursday by a Houston attorney for parents Bonnie Anderson, Jenny Alexander, Doug Alexander, Heather Calhoun and Stephen Calhoun, takes issue with the district’s current safety protocols for in-person schooling, specifically its requirement that students wear masks in hallways, buses, and other common areas.

When Abbott announced his executive order, he did not address the ways rescinding the mask mandate affected public schools. In a later interview with radio host Chad Hasty, Abbott said he expected the Texas Education Agency to leave the decision to require masks up to local school boards.

The agency’s updated mask policy has allowed “local school boards have full authority to determine their local mask policy,” according to its website. In public planning guidance, the agency also recommends the use of masks.

Under Katy ISD’s policies, students who don’t comply with the mask policy will be moved to online school and aren’t allowed to participate in other student activities. Those who have medical conditions that preclude them from wearing a mask must notify the school nurse and have documentation from their medical provider, according to the policy.

The lawsuit also argues under the U.S. Supreme Court’s decision Brown v. Board of Education that forcing students to switch to virtual school is a form of “separate but equal” discrimination.

The Supreme Court case’s ruling focused on segregation between Black and white students in public schools and discrimination on the basis of race.

[…]

Katy ISD responded to the lawsuit with a statement that it is complying with the agency’s public planning recommendations.

“Katy ISD continues to follow the Governor’s Executive Order GA-34 and comply with the Texas Education Agency’s Public Health Planning Guidance,” said the statement, obtained by Fox 26 Houston.

If you guessed that only Jared Woodfill would be dumb and obnoxious enough to cite Brown v Board of Education as a precedent for this silly lawsuit, congratulations. You don’t win a prize but you do get to live with the knowledge that you are familiar enough with Jared Woodfill to recognize his handiwork. It sure seems to me like this lawsuit is unlikely to win, but the part of my brain that tries to make sense of the world around me is convinced there must be some merit to this, however hard it may be to find. I don’t think my analysis can get any deeper than that, so let’s wrap this up. The Chron has more.

Sery Kim

Poor baby.

A Texas congressional candidate on Monday sued The Texas Tribune for defamation, claiming that the newspaper wrongly identified her as a “racist.”

In an article, Texas Tribune political reporter Patrick Svitek reported on comments made by Sery Kim, a Korean American who is on the ballot for Texas’s 6th Congressional District, during a GOP forum March 31. Responding to a question about U.S. immigration, Kim reportedly said, “I don’t want them here at all.” According to the Tribune, she was referring to Chinese immigrants.

“They steal our intellectual property, they give us coronavirus, they don’t hold themselves accountable,” she continued, according to the Tribune.

“And quite frankly, I can say that because I’m Korean,” she reportedly added.

The Tribune article in question ran with the headline, “GOP congressional candidate in Texas special election loses prominent supporters after racist comment about Chinese immigrants.”

Following these comments, two of Kim’s largest backers, California Reps. Young Kim (R) and Michelle Steel (R) — the first two Korean American Republicans to serve in Congress — pulled their endorsements for her.

In the lawsuit, Kim claimed that the Tribune “rendered judgment on what is the standard for a racist comment” by using the quote from Kim, “I don’t want them here at all,” later adding that “The Texas Tribune’s direct quote from Sery Kim does not have any words relating to China, Chinese, Chinese immigrants or any nouns or pronouns or even adjectives other than ‘them.’ ”

According to the lawsuit, the paper acted with actual malice by writing “outside of the direct quote made by Sery Kim,” the phrase Chinese immigrants “to paint Sery Kim as a racist.”

The lawsuit adds that “at no point” during the forum “did Sery Kim, in direct quotes, say she didn’t want Chinese immigrants here at all.”

I didn’t write about the original story because “Republican candidate says something stupid and offensive” is hardly noteworthy. This is next level, so I have to give her some props. My vast experience in reading and watching legal dramas makes me fully qualified to say that this will be laughed out of court, and if a bunch of Twitter commenters are correct, could subject her to court costs due to Texas’ anti-SLAPP law. I will say this much: If the goal was to stand out in an extremely crowded special election field, she has accomplished that.

HPD now investigating Deshaun Watson

Someone filed a report.

Already facing a rash of civil lawsuits, Houston Texans quarterback Deshaun Watson now has been named in a criminal complaint, according to the Houston Police Department.

HPD confirmed it “is now conducting an investigation and will not comment further during the investigative process.”

The probe comes as Texans quarterback faces 21 civil lawsuits from massage therapists or wellness professionals who allege he sexually assaulted or harassed them at various points during massage sessions in 2020 or 2021.

Watson and his attorney, Rusty Hardin, have denied the claims

Hardin, who has publicly chastised Watson’s accusers for not disclosing their names in the litigation, said his team will cooperate with police.

“We welcome this long overdue development,” Hardin said of the investigation. “Now we will learn the identity of at least one accuser.”

Houston attorney Tony Buzbee, who is representing the alleged victims in the civil lawsuits, pushed back against the criticism of the alleged victims, saying they are courageous in coming forward.

“It takes great strength to do what these women are doing,” he said. “We are not only dealing with the future of a star quarterback, we are dealing with the physical health, mental health, safety, and well-being of courageous people who had the fortitude to step forward, although powerless, against the powerful.”

On Friday, Buzbee said that he was aware of the criminal complaint filed Friday morning.

“I will also confirm that other criminal complaints will follow, as previously indicated, in Houston and in other jurisdictions and with other agencies,” he said.

That’s more direct than Buzbee’s previous word salad on the topic. It seems likely we were always headed in this direction, but the story so far has proceeded in an unusual manner, so who really knows. Nothing to do but wait and see what if anything comes of this, and how many other reports get filed.

Is it time to pay jurors more?

Not yet, but maybe soon.

Marilyn Burgess

Harris County Judge Lina Hidalgo and her colleagues on Commissioners Court declined to support a proposal to increase pay for jurors and instead referred the idea for more study.

District Clerk Marilyn Burgess, a Democrat, pitched the idea of hiking juror pay from $6 to $50 for the first day of service and from $40 to $80 for any subsequent days. The hike would make Harris County jurors the highest-paid in Texas.

Burgess’s office had commissioned a study that found residents, especially people of color, said they would be more likely to show up for jury duty when summoned if the pay was higher. He proposal also included free parking for jurors.

The liberal majority that controls Commissioners Court was unconvinced. Hidalgo said she supported paying jurors more, but said Burgess had not produced any evidence showing that her proposal would help make Harris County juries more diverse. She questioned the accuracy of the district clerk’s study, which was performed by a third party.

“That’s one survey of Harris County, which is not clear to what extent the results are statistically significant, or to the extent the sample is representative,” Hidalgo said.

Budget Officer David Berry, who reports to Commissioners Court, said his office had reviewed Burgess’s proposal but did not endorse it.

[…]

Several community leaders, including from the Super Neighborhood Alliance and Mi Familia Vota, spoke in support of the pay increase. Burgess said if court members were skeptical, they could simply revert to the old system at the end of the fiscal year if it did not produce results.

She said the cost of the increases, estimated at $1.8 million in the current fiscal year, would be cheaper now because courts are holding fewer trials during the COVID-19 pandemic.

“The judges have signed on in support of it. The community civic leaders say it’s the only way you’re going to get the lower socioeconomic people to appear for jury duty,” Burgess said. “We have discussed this for two years and now is the time to implement it.”

Here’s the Monday story, which previewed the item before Commissioners Court. I haven’t seen the study Burgess presented, so I can’t comment on its data. Burgess’ proposal would make the Harris County courts pay a bit more than the federal courts do for jury duty. I think this is the right direction and it doesn’t cost that much, but if Commissioners Court wants to take 30 days and review it before deciding what to do, fine. I hope that they do choose to take this up afterwards. The Press has more.

Will there be any criminal complaints filed against Deshaun Watson?

Maybe? It all depends on what Tony Buzbee means, and Lord only knows about that.

In his latest Instagram post about the sexual assault allegations against Deshaun Watson, Houston attorney Tony Buzbee said Tuesday that he plans to take evidence of the assaults to an investigating agency outside the Houston Police Department.

Buzbee has filed 19 lawsuits on behalf of women who said Watson sexually assaulted or harassed them during massage sessions in 2020 and 2021.

In Buzbee’s post, published around 9 p.m., the attorney said he was initially reluctant to provide information about the alleged crimes, citing his 2019 mayoral bid in which he called for then-Police Chief Art Acevedo’s resignation.

Acevedo recently took a job as police chief of the Miami Police Department. Buzbee, however, said he has since discovered that Watson’s attorney, Rusty Hardin, has a son “who is on of (sic) the exclusive Command Staff of HPD.”

“I am not saying in any way that Deshaun Watson’s lawyer, Mr. Hardin, has a son who has a position that would compromise HPD and its investigation,” Buzbee wrote. “I support his service, along with all Houston police officers—I think the rank and file know that. But, I am saying that me and my clients will go elsewhere to provide our evidence to investigative authorities. Stand by.”

Buzbee said his legal team has been “roundly criticized” for not filing formal complaints with the Houston Police Department. He said the team has “provided info to other organizations” but did not elaborate in the post.

What “other organizations” might those be? Who knows. I’m not going to try to interpret the musings from Tony Buzbee’s galaxy brain. He’s got a strategy and he’s clearly got evidence to back him up – see Sean Pendergast’s analysis of the five most damaging allegations against Watson for an appraisal of that – and he’s gonna do what he’s gonna do. At some point, we’ll see what the endgame that Buzbee has in mind is. In the meantime, the lawsuit count is up to 21. And as of Wednesday, we now have this.

In a concerted attempt to paint Watson in a more favorable light, Watson’s defense released statements Wednesday from 18 women who “are deeply troubled by the accusations” made against Watson and who believe the allegations are “wholly inconsistent with their experiences with him and who they believe him to be.” All 18 women who released statements Wednesday supporting Watson made their identities public.

Watson’s defense attorney Rusty Hardin said these women who have spoken out on Watson’s behalf have collectively worked with the Texans star “more than 130 times over the past five years.”

“These statements show the other side to this story that has been so lacking in the flurry of anonymous complaints filed by opposing counsel,” Hardin said. It’s the most vigorous attempt from Hardin yet to defend Watson, and comes after Hardin claimed last week that at least one of Watson’s accusers had privately attempted to blackmail the quarterback into paying her to keep quiet about what happened during their massage appointment.

Several therapists are quoted, and you can go read what they have to say if you wish. I get where this is coming from – whatever ultimately happens with the allegations and lawsuits, Watson’s reputation has taken a big hit, so some of this is an attempt to mitigate that damage – but the old-school “well, he never did anything untoward around me” defense is, at best, not on point. I would hope by now that we have internalized the idea that a person can behave differently in different contexts and around different people. It’s dangerously close to victim-blaming, and that’s a road we should want to avoid.

Freeze-related lawsuit filed against CenterPoint

Of interest.

Several more Houston families of victims of the February freeze are among the latest to sue CenterPoint Energy for allowing vulnerable people to languish without power during what were supposed to be brief blackouts.

Travis Flowers, 66, and Qazi Momin, 83, relied on oxygen tanks to survive, according to separate lawsuits — both of which were filed Friday by lawyer Tony Buzbee.

In the case of Flowers, the power at the Army veteran’s Houston home went out Feb. 15 and his wife, Brenda Flowers, swapped out his powerless tank for a portable device. By then, the home was too cold for the backup tank to work, according to the lawsuit. Flowers’ oxygen levels dropped dangerously low and he died at a hospital.

Two days later, when the power went out at another residence, Momin’s caretaker found him breathing rapidly. His oxygen tank was without power, the suit states. She “tried to make him comfortable using pillows to support him” but hours later, he stopped breathing.

Her phone was dead “so she went to her car to charge it so that she could call for help.”

Details surrounding Flowers’ and Momin’s deaths could not be found in medical examiner records.

The wrongful death litigation, among several filed after the winter storm that knocked out power for millions of Texans, both accuse CenterPoint — a private utilities company — of negligence for cutting power to Flowers’ and Momin’s homes as the temperature lingered below freezing.

[…]

Although CenterPoint was acting on instructions from the Electric Reliability Council of Texas to lighten the power load, the regional energy company, Buzbee contends, was able to choose which circuits to sever power to and for how long. ERCOT, who is named in this case but not a defendant, manages most of Texas’ electrical grid through a deregulated market.

The lawsuit claims the energy company failed to disclose the possibility of a failing power grid or prepare Houstonians to keep warm or leave the area. The nine-page document points to a tweet that CenterPoint officials wrote the morning of Flowers’ death that states “controlled, rotating electric outages” would begin but that they would be temporary.

“At (the) same time that CenterPoint and others were telling the public that the blackouts were temporary and rolling, public officials were urging people to stay home and off the roads,” the suit reads.

Transparency and “balanced rotations of power” in Houston neighborhoods, Buzbee argues, could have saved their lives.

There have been other freeze-related lawsuits filed, against the now-bankrupt Griddy and against Entergy, with the latter also from the busy office of Tony Buzbee. There’s also litigation against ERCOT, though it remains an open question as to whether or not ERCOT can be sued in this fashion. I don’t have any particular insight about this action other than to say that however much you might think CenterPoint is at fault, the greater responsibility in my opinion lies with the Legislature and the state’s regulatory structure. None of that can really be sued (except maybe ERCOT), so here we are.

On a related note:

Last month’s disastrous and deadly winter storm impacted most Texans served by the state’s main power grid, with almost 70% of those people losing power in subfreezing temperatures and almost half experiencing a water outage, according to a new report from the University of Houston.

And although Texans were told to prepare for short-term, rolling power outages ahead of the storm, those who lost electricity ended up going an average of 42 hours without it, the survey found.

As the updated death toll from the storm reached 111 deaths last week, the severity of its full force has continued to come into focus. The damage the storm wrecked could make it the costliest disaster in Texas history.

That report is here. I figure we were without power for about 50 hours at our house – about half of Monday, all of Tuesday, and about half of Wednesday. Doesn’t have any direct bearing on the litigation around this, but it’s another reminder of just how bad this was, if for some reason we needed one.

AC repairman sues Hotze

Hell yeah.

An air conditioning repairman who was held at gunpoint last October as part of a right-wing group’s voter fraud investigation has sued the group and its CEO, Houston conservative activist Steven Hotze.

David Lopez, the repairman, filed a lawsuit Tuesday against Hotze and his organization, Liberty Center for God and Country, for civil conspiracy, civil theft, and aiding and abetting Mark Aguirre, the former Houston police captain who faces a felony charge of aggravated assault with a deadly weapon stemming from an Oct. 19 confrontation with Lopez.

Aguirre told police he was investigating a massive “ballot harvesting” operation on behalf of Hotze’s group. He previously alleged that Lopez had about 750,000 fraudulent mail ballots in his truck and had been “using Hispanic children to sign” the ballots because the youths’ fingerprints would not appear in databases. Lopez’s truck contained only air conditioning parts and tools, authorities said.

Hotze paid Aguirre $266,400 to investigate voter fraud allegations through his group, including more than $211,000 the day after the incident in which the former cop rammed Lopez’s truck and then held him at gunpoint until a Houston police officer happened by. In December, shortly after Aguirre was arrested, Hotze called the assault charge “bogus.”

At the time, Hotze said he would not condone Aguirre’s actions if they were proven true, but he was not worried about being legally implicated as the one funding Aguirre’s investigative work.

Jared Woodfill, Hotze’s attorney, said Tuesday that Hotze had not instructed Aguirre to take any of the actions mentioned in the lawsuit, and contended that Hotze could not be found culpable of any legal wrongdoing.

[…]

Lopez is seeking more than $1 million for “bodily injury, physical pain, past and future mental anguish, exemplary damages and attorney fees,” according to the suit.

Woodfill said Aguirre’s attorney has given a different version of events, alleging Lopez and Aguirre got into a “fender bender” and Lopez prompted the confrontation when he rushed at Aguirre. In any case, Woodfill said Hotze should not be held responsible for Aguirre’s actions.

“When an allegation of voter fraud would come in, he would turn it over to investigators and they would do their work in the way they thought best,” Woodfill said. “So, using the plaintiff’s logic, if one were to go out and hire a contractor to do whatever the project may be, and they did something that you didn’t agree with, then according to the plaintiff, you’re responsible for it. I don’t believe that’s consistent with the law.”

Woodfill also said he believes the lawsuit is “politically motivated,” pointing to Lopez’s decision to sue Hotze but not Aguirre, and to hire attorneys K. Scott Brazil and Dicky Grigg, both of whom have represented the Texas Democratic Party in voting lawsuits. Woodfill noted Lopez’s lawsuit references Hotze’s numerous legal challenges against Harris County’s efforts to expand voting during the 2020 election, which it is part of Hotze’s “long history of pursuing and alleging bizarre unfounded voter fraud allegations.”

Grigg said Lopez is not suing Aguirre because he already has been indicted in the separate criminal case, and because Hotze — not Aguirre — is the one funding the operation.

“He’s just a puppet, and instead of going against the puppet, we’re going against the puppetmaster, the one pulling the strings,” Grigg said.

He added that the lawsuit was not motivated by Hotze’s political claims or the legal actions he took against Democrats and voter expansion measures.

“This lawsuit is not about any of the claims that Dr. Hotze’s making, no matter how ridiculous or unfounded they are,” Grigg said. “This is against actions that people he paid $300,000 to, the actions that these people took. And the whole purpose of the lawsuit is, fine, you can say what you want, you can hold the opinions you want. But you’re responsible for your actions and your conduct.”

See here, here, and here for the background – that last link has a lot of information. A copy of the lawsuit is embedded in the Chron story. I have never wanted a lawsuit to succeed more than I want this one to succeed. No one deserves this more than Steven Hotze. Attorney Grigg has this exactly right. Let’s hope that a jury, and eventually the Supreme Court, see it that way.

Austin mask mandate somehow still in effect

I admit, I did not expect this.

Best mugshot ever

Austin and Travis County can keep requiring masks for at least a bit longer after a district judge denied Texas Attorney General Ken Paxton’s request for a temporary block of the local mandate.

Paxton sued the local officials for refusing to end the mandate after Gov. Greg Abbott lifted state restrictions earlier this month. Paxton will likely appeal the decision.

District Judge Lora Livingston has yet to issue a final ruling on the merits of the case, meaning Austin and Travis officials may later be told to comply with state officials.

But in the meantime, County Judge Andy Brown said Friday’s ruling at least prolongs the amount of time masks are required in their communities — which gives them more time to vaccinate their residents.

“I’ve been doing everything that I can to protect the health and safety of people in Travis County,” Brown said in an interview. “And Judge Livingston’s ruling today allows us to keep doing that.”

[…]

The final outcome of the case could have implications for other Texas cities and counties on how local governments can enforce their own public health mandates, even after the state ordered them to end.

During Friday’s hearing, discussion broadly centered around the question: What powers do local public health departments have, and how do the governor’s emergency powers affect them?

Austin and Travis attorneys said public health officials have the authority to implement health measures — like mask mandates — outside of the context of the pandemic, and therefore should not be affected by Texas’ latest order.

State attorneys argued that Abbott’s emergency powers because of the pandemic trump any local orders.

Livingston pushed back on some of the state attorney’s arguments that not requiring masks allows for individual freedom.

“I’m trying to understand why the person with the deadly virus should have more power than the person trying to stay alive and not catch the deadly virus,” Livingston said.

See here and here for the background. Note that the judge still has not issued a ruling, she just hasn’t granted the state’s motion for an injunction while she makes her decision. The usual trajectory in this sort of thing has been for the good guys (i.e., whoever is on the opposite side of Ken Paxton, whether as plaintiff or defendant) to win in round one and sometimes in round two, but to ultimately lose. Since the legal question at hand in these matters is the imposition of a restraining order or injunction, and since Paxton loves filing emergency appeals, the outcome that matters in the short term – that is, whether or not the good guys get to do what they want to do or force their opponents to do or not do something – is decided quickly, and often renders the actual litigation moot. In this case, the judge has taken her sweet time issuing a decision, so there’s been nothing for Paxton to appeal. Plus, even if all they get out of it is a couple of weeks’ extra time, that extra time is consequential in terms of slowing the spread of COVID. I just did not see it playing out this way. So, whatever happens in the end, good for Austin and Travis County for finding a way to do something in the short term. I don’t know how replicable this is, but it worked this time and that did matter.

Another Watson lawsuit update

The count is now nineteen.

Nineteen women have now accused Texans quarterback Deshaun Watson of sexual assault after three massage therapists filed separate lawsuits Sunday night.

The latest accusations involve women who said Watson assaulted and harassed them during massage sessions at various points in 2020. Watson and his attorney, Rusty Hardin, have denied the allegations. Well-known Houston attorney Tony Buzbee, a former mayoral candidate, is representing the women.

In the latest lawsuit, Buzbee claimed Watson is deleting Instagram messages and contacting some of the women in an attempt to settle. Hardin issued a statement Monday afternoon in response to the allegation.

“Like a lot of people, Deshaun regularly deletes past Instagram messages,” Hardin said. “That said, he has not deleted any messages since March 15th, the day before the first lawsuit was filed. We categorically deny that he has reached out directly to his accusers in an attempt to settle these cases.”

“Opposing counsel’s continued statements that these cases aren’t about money do not square with the facts in at least two of these cases. It is incredibly irresponsible to continue to make these types of false allegations in this avalanche of anonymous lawsuits, particularly while we are still trying to find out who the accusers are. We will address these issues, and others raised in these cases, in our formal response to the court in the coming weeks.”

[…]

“Plaintiffs have not brought these cases for money or attention; instead Plaintiffs seek a change in behavior with regard to Watson, and a change of culture in the NFL,” the 19th lawsuit reads.

See here and here for the previous updates, and click on the story link to see a copy of the latest lawsuit. Deleting material evidence (if indeed Watson has done so) could be a problem, which I presume is why Rusty Hardin is out there denying it. I will be very interested to see what their eventual formal response looks like. Sean Pendergast has more.

The Buzbee blitz

It’s been working.

On a Tuesday night, Tony Buzbee announced on Instagram that his client was suing Texans quarterback Deshaun Watson.

With a handful of social media posts, the crackerjack trial lawyer teased more sexual assault allegations to come. By the next Tuesday, 16 women had accused the Pro Bowl player of similar forms of misconduct in 16 separate lawsuits.

Known as a bulldog in the courtroom and a grandiose presence on the local news, the former mayoral candidate retained a firm grasp of the narrative. At first only speaking through social media, he dropped each lawsuit individually, and each accusation dominated the daily news crawl.

Buzbee is known as one of Houston’s most media-savvy attorneys, and the Watson case has been no exception. He has exploited news outlets’ desire for a buzz-inducing story in order to snowball his cases through the legal system, lawyers and analysts say, coinciding with a fragile Texans sports landscape that has kept Watson front-and-center during his unsuccessful attempts to leave the team.

The reality is that Buzbee has earned his reputation by creative and strong-arm tactics to pressure civil defendants into settling, said Sean Buckley, a Houston civil and criminal defense attorney. The Watson cases are prime examples of that, he added.

“The intense and ongoing publicity surrounding the Deshaun Watson allegations appears clearly calculated to pressure Harris County District Attorney Kim Ogg into filing criminal charges against Watson,” Buckley said. “To that end, a formal investigation or prosecution of Deshaun Watson would impair Watson’s ability to defend against Buzbee’s civil lawsuits.”

I’m not going to make any jokes about Buzbee’s Mayoral campaign or his weird life choices because this is a serious topic and I don’t want to make light of the charges that have been levied against Deshaun Watson. There may be room for that when this is farther along, but not now. I’m also not going to comment any further on a story that is a mostly glowing profile of Tony Buzbee because there are no circumstances under which he needs or deserves that from me.

Meanwhile, if you’re wondering how Watson’s defense might take shape, here’s one item of interest.

Texans quarterback Deshaun Watson was the subject of a $30,000 blackmail attempt from one of the 16 massage therapists alleging sexual assault and harassment in civil litigation, according to a sworn affidavit released by his Houston-based attorney, Rusty Hardin.

Bryan Burney, the marketing manager for Watson, submitted in the affidavit that “Jane Doe” believed to be the third plaintiff out of of 16 civil lawsuits filed by Houston attorney Tony Buzbee, stated that she wanted $30,000 for her ‘indefinite silence’ regarding an alleged Dec. 28, 2020 encounter with Watson. The civil suit alleges that Watson “coerced and intimidated” her to perform oral sex on him at a Houston office building.

“I asked her what she would be silent about and whether anything had happened with Deshaun against her will,” Burney stated. “She confirmed that everything that occurred was consensual during her encounter with Deshaun. I asked Ms. Doe why Deshaun should pay for silence regarding something that was consensual — whatever it was. She said that it was a matter that both she and Deshaun would wish to keep secret and that she would need to be paid for her ‘silence.’”

Burney stated that after that conversation, he received a call from a man saying he was the alleged victim’s business manager, that the encounter would be “embarrassing” if Watson didn’t pay what was demanded.

“I told this individual that his demand to be paid for not revealing a consensual interaction between two adults was extortion,” Burney said. “He responded, “It’s not extortion, it’s blackmail. I informed this individual that Deshaun would not be paying the $30,000 requested.

You can read the rest, including the full sworn statement. The idea is that if one accusation is (arguably) false, then maybe the others are as well. We’re a long way away from the finish line in this story, so let’s just leave this here and see what else may develop. And yes, the accuser count is now up to sixteen.

Have you been pining for another Hotze/Woodfill lawsuit?

Well, then today is your lucky day.

Not that kind of face mask

Texas Agriculture Commissioner Sid Miller and conservative activist Dr. Steven Hotze, a prolific litigant, are suing Lt. Gov. Dan Patrick for requiring COVID-19 tests for entry into the Texas Senate gallery and committee hearings.

In the 18-page suit filed in Travis County court, Miller and Hotze argue the Senate rule violates the Texas Constitution and Open Meetings Act and ask the court to block the rule. Patrick’s spokesman did not immediately respond to a request for comment.

“Gov. Abbott is opening up businesses while Patrick is shutting down the people’s access to their government,” the plaintiffs’ attorney Jared Woodfill said in a statement.

Members of the public wishing to view proceedings must receive a wristband that indicates a negative COVID-19 test. The rule was established to prevent the spread of the virus at the statehouse, which proved to be hotspots in other states.

[…]

The lawsuit says the Senate rule “unreasonably restricts speech” by mandating a “medical procedure as a prerequisite” and violates the right to free speech guaranteed by the Texas Constitution.

“The constitutional mandate that the legislative session be ‘open’ supersedes any statutory emergency authority that may otherwise apply to the Senate,” the suit reads, noting Hotze had tried to enter on March 2 but was denied entry when he refused a COVID-19 test.

See here for some background. I couldn’t find a copy of the lawsuit online, but Jasper Scherer has an image of the first four pages. In the name of preserving my sanity, I did not read them. One does not have to be a lawyer to think that the “free speech” argument here is a stretch, though maybe there’s something to the open meetings claim. I’ve got better things to worry about, so we’ll see what the courts make of it. We know what their recent track record is, I’ll just leave it at that.

Deshaun Watson lawsuit count now at 13

There may still be more.

Six additional women have filed sexual assault lawsuits against Texans quarterback Deshaun Watson.

Well-known Houston attorney Tony Buzbee, also a former mayoral candidate, has now filed 13 pieces of litigation against the Pro-Bowl football player. Most of the accusers are massage therapists who allege Watson harassed them and exposed himself during sessions.

Watson and his attorney, Rusty Hardin, have denied the allegations. Watson is simultaneously attempting to leave the Texans but remains in a standoff with the team after formally requesting a trade in January.

One of the latest lawsuits involves a licensed massage therapist who said she gave Watson a massage in Atlanta, Georgia in March 2021. Watson exposed himself and touched her with his penis, she claims in the suit.

That’s March 2021, as in this very month. The flood of lawsuits began last week, and per The Athletic Tony Buzbee has said he “planned to file at least 12 cases against Watson but had met with 10 additional women about filing similar complaints”, so we’re not done yet. And as Stephanie Stradley reminds us, the processes involved – both the judicial system (civil and criminal) and the NFL’s own investigation – will take time, longer than any of us would like it to take. So try to be patient, it’s going to be awhile before we get any outside review of these awful, horrible accusations.

UPDATE: Up to fourteen now.

HISD Board wins again in court

They’re still a thing, and Mike Morath can’t do anything about it right now.

The Houston ISD school board earned another win Friday in its effort to stave off Texas Education Commissioner Mike Morath’s plan to replace it with an appointed board, this time prevailing in a procedural battle before the state Supreme Court.

In an 8-1 decision, the Texas Supreme Court ruled that a state appellate court had the legal right to temporarily halt Morath’s move to oust HISD’s school board amid an ongoing lawsuit.

The ruling is not final victory for HISD in its fight with Morath. It merely means that the education commissioner cannot immediately move to replace trustees with a board of managers, which could vote to drop the lawsuit. The HISD board’s case remains pending, with an appeal related to the central issues of the case pending before the Texas Supreme Court.

Lawyers representing Morath and the Texas Education Agency argued that a state law precluded the courts from stopping state administrative actions — such as stripping power from school board members and appointing replacements — even if a trial court issues a temporary injunction. A Travis County judge overseeing HISD’s lawsuit issued such an injunction in January 2020.

An appellate court partially agreed with the TEA’s position, but the judges also found that they separately had the power to halt an administrative action under the state’s rules of appellate procedure, which they did in HISD’s case.

Lawyers for Morath and TEA disagreed and asked the state Supreme Court to overturn that finding, but the eight justices sided with the lower court.

See here and here for the background. This is a procedural ruling, which just means that the TEA does not get to take over HISD while the appeal of the ruling that said that the TEA did not properly follow the law while attempting to do the takeover is being litigated. HISD still has to win that appeal, and then have that upheld by the Supreme Court, to get out of the current situation. In the meantime, there’s the Harold Dutton bill that would make all of this moot, though it too would surely be subject to a lawsuit. I dunno, maybe the TEA should try to negotiate a settlement of some kind if they lose again, so we can all get on with our lives? Just a thought.

SCoTX punts on ERCOT lawsuit question

Wimpy.

The Texas Supreme Court punted Friday on a question dogging millions of Texans affected by last month’s catastrophic power failure: Can ERCOT, the state’s grid manager, be sued?

The state’s highest court ruled 5-4 that it won’t decide — at least not now — on closely-watched case between Dallas electricity generator Panda Power and the Electric Reliability Council of Texas. The $2.2 billion case filed by Panda Power in 2016 raised the question whether ERCOT is a governmental agency that has sovereign immunity protecting them from lawsuits. ERCOT, a private, nonprofit corporation overseen by the Texas Legislature and the Public Utility Commission, is the only grid manager in the country that has received such protection.

Five justices led by Justice Jeff Boyd said the Texas Constitution prohibits them from ruling on the case after the trial court issued a final judgment dismissing the case. Based on a finding of sovereign immunity by an appeals court, the Supreme Court narrowly ruled that the dismissal by the lower court made the case moot and that it no longer had the authority to rule in the case.

“Because the trial court’s interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek,” the majority opinion written by Boyd stated. “As a result, any decision we might render would constitute an impermissible advisory opinion, and these consolidated causes are moot.”

Four dissenting justices led by Chief Justice Nathan Hecht, argued they should rule on the case because the public has an interest whether ERCOT can be sued in the aftermath of last month’s storm. Several lawsuits have been filed against the state grid manager, including over the deaths of an 11-year-old boy and a 95-year-old man, who were both found dead in their freezing Houston-area homes.

“The answer to the immunity issue in this case has become perhaps more important to the public than even to the parties,” the minority opinion, written by Hecht stated. “The parties want to know. The public wants to know. The court refuses to answer.”

The ruling by the high court has widespread implications in the wake of last month’s deadly and devastating blackouts, which contributed to more than 50 deaths and billions of dollars of property damage.

David Coale, an appellate partner with Dallas-based law firm Lynn Pinker Hurst & Schwegmann, said the Supreme Court could still decide on ERCOT’s immunity as appeals from the Panda Power case come up through the legal system. In the meantime, ERCOT’s immunity — upheld by a Texas appeals court in 2018 — remains intact, but the state grid manage faces an onslaught of legal cases without any guidance from the Supreme Court.

“The court may have punted, but it didn’t walk away,” Coale said. “It acknowledged that another appeal involving the same parties is on its way up to them, and it can revisit these issues then.”

See here and here for some background. I guess I can understand the “let’s do this all in the correct order” idea, but as the story notes the question about whether ERCOT has sovereign immunity or not is very pertinent right now. Maybe if the ultimate decision is that ERCOT cannot be sued it would be nice to let all those folks who are now suing them know, so they won’t waste a bunch of time and money pursuing their cases. I’m not a lawyer, what do I know? You can find all the relevant opinions and concurrences and dissents here if you need a little light reading for the weekend.

UPDATE: Forgot to mention that Harris, Fort Bend, and Travis Counties submitted amicus briefs urging SCOTUS to find in favor of ERCOT not having sovereign immunity. This Bloomberg article, which is behind their paywall but which you might be able to see if you haven’t exceeded your monthly allowance, details those filings.

The accusations against Deshaun Watson keep piling up

Damn.

Four more women have accused Texans quarterback Deshaun Watson of sexual assault.

The new lawsuits, all filed Thursday and made publicly available Friday morning, mean seven women total have alleged Watson assaulted or harassed them. All of them are massage therapists, work at spas or specialize in body conditioning and wellness. Many of them are single mothers.

Each of the allegations center around separate occasions in 2020, mostly involving Watson reaching out to the women via social media and asking for massage sessions, according to the litigation. In each suit, the women describe a situation in which Watson is almost completely in control, dictating their work and refusing to listen when he made them uncomfortable.

[…]

Watson has not commented on the claims since Tuesday, when he categorically denied disrespecting any woman and said he looked forward to clearing his name. He is being represented by Houston attorney Rusty Hardin, who has worked with other prominent Houston athletes such as former Astros pitcher Roger Clemens.

His agent, David Mulugheta, commented about the cases Friday on Twitter.

“Sexual assault is real. Victims should be heard, offenders prosecuted,” he said. “Individuals fabricate stories in pursuit of financial gain often. Their victims should be heard, and those offenders also prosecuted. I simply hope we keep this same energy with the truth.”

All of the women’s suits have been brought by Tony Buzbee, another well-known attorney and a former mayoral candidate.

See here for the background. As before, the story contains graphic details that I’d rather not reproduce here – go read the story for the rest, but be prepared, it’s quite ugly. There are more lawsuits coming, too. I don’t know what to think right now. The allegations are horrible, but Watson does have the right and the opportunity to address them and defend himself. Maybe one or more of these cases will end up with a verdict or a settlement, and maybe none of them will. At some point, we all have to make up our minds. I would much rather live in a world where none of this happened, but I don’t get to make that choice. The Press has more.

Paxton responds to Twitter lawsuit

He said something about it, anyway.

Best mugshot ever

Texas Attorney General Ken Paxton said Wednesday that a lawsuit by Twitter won’t deter his office from investigating the content moderation practices of the social media giant and four other major technology companies.

Twitter sued the Republican official this week in an effort to halt his probe, which the company claimed was retaliation for banning the account of former President Donald Trump following the deadly January insurrection at the U.S. Capitol. Days after the riot, Paxton announced an investigation of what he called “the seemingly coordinated de-platforming of the President.” His office demanded a variety of records and internal communications from Google, Facebook, Twitter, Amazon and Apple.

On Monday, Twitter asked a federal judge in California to effectively stop the probe and affirm that its decision to ban Trump was protected by the First Amendment. Paxton responded Wednesday that “most of the companies have cooperated” and called Twitter’s suit “remarkable.”

“Apparently they have some fear of disclosing what they’re actually doing if they’re asking a California judge to rule on Texas law,” he said during an online forum hosted by the conservative Media Research Center. In its demand for records, Paxton’s office cited the authority of Texas’ Deceptive Trade Practices-Consumer Protection Act.

Lawyers for Twitter wrote in their complaint that the company had sought for weeks to “put reasonable limits on the scope” of Paxton’s demands but were unable to reach an agreement with his office. A spokeswoman for the company declined to comment Wednesday.

See here for the background. Not really much to add, but it gave me a second chance to see if I could find any analysis of the lawsuit. I did find this:

As previously noted by Law&Crime, Twitter is a private company and therefore has a First Amendment right to moderate its platform as it sees fit. The First Amendment also protects the company from having a government actor dictate how it operates its online platform, a point the company makes in the opening lines of the lawsuit.

“Twitter seeks to stop AG Paxton from unlawfully abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights,” the lawsuit states. “The rights of free speech and of the press afforded Twitter under the First Amendment of the U.S. Constitution include the right to make decisions about what content to disseminate through its platform. This right specifically includes the discretion to remove or otherwise restrict access to Tweets, profiles, or other content posted to Twitter. AG Paxton may not compel Twitter to publish such content over its objection, and he may not penalize Twitter for exercising its right to exclude such content from its platform.”

A spokesperson for the company reiterated the free speech issue at the center of the controversy in a statement on Tuesday.

“A core part of Twitter’s mission is to protect freedom of expression and defend an Open Internet,” the statement read. “We work every day to protect those interests for the people who use our service around the world. The First Amendment protects everyone’s right to free speech, including private businesses.”

The company alleges it made several attempts to reach out to Paxton’s office to narrow the scope of the all-encompassing CID, but said the AG refused to budge.

“Instead, AG Paxton made clear that he will use the full weight of his office, including his expansive investigatory powers, to retaliate against Twitter for having made editorial decisions with which he disagrees,” the complaint states.

Seems pretty simple, but we’ll see what a judge says. I also found this Twitter thread that came to a similar conclusion, in response to some other guy claiming that Twitter’s lawsuit was garbage. So far my conclusion is that Twitter has the better argument, but I am open to someone who knows more about the law than me saying otherwise.

Lawsuit filed against Deshaun Watson

This is super ugly.

A licensed massage therapist has accused Texans quarterback Deshaun Watson of sexual assault.

Prominent lawyer Tony Buzbee, a former Houston mayoral candidate, filed the lawsuit late Tuesday. He first shared brief information in a post on Instagram, saying the litigation was “about dignity and stopping behavior that should be stopped.”

The massage therapist, identified as Jane Doe, said she had never met Watson before or dealt with any members of the Texans organization. She received a direct message from the Pro Bowl quarterback on Instagram on March 28, 2020, she said.

[…]

Watson responded to the claims, in which the masseuse alleges Watson touched her inappropriately during a massage session at her home in March 2020.

“As a result of a social media post by a publicity-seeking plaintiff’s lawyer, I recently became aware of a lawsuit that has apparently been filed against me,” Watson said in his response. “I have not yet seen the complaint, but I know this: I have never treated any woman with anything other than the utmost respect. The plaintiff’s lawyer claims that this isn’t about money, but before filing suit he made a baseless six-figure settlement demand, which I quickly rejected.”

The statement went on to say that “this isn’t about money for me — it’s about clearing my name, and I look forward to doing that.”

Prominent Houston defense attorney Rusty Hardin is representing Watson in the lawsuit, he confirmed. Hardin, who has represented other athletes such as Roger Clemens, was not available for comment Wednesday.

The Texans on Wednesday morning issued a separate statement addressing the allegations.

“We became aware of a civil lawsuit involving Deshaun Watson through a social media post last night,” the statement reads. “This is the first time we heard of the matter, and we hope to learn more soon. We take accusations of this nature that involve anyone within the Houston Texans organization seriously. We will await further information before making any additional statements on this incident.”

An NFL spokesman said “We are aware of the suit, but will decline further comment at this time.”

I skipped the details, in which the massage therapist alleges that she was sexually assaulted by Watson. You can read it in the story and in the lawsuit, which is embedded in the story. Watson’s statement is here. There are some claims about Instagram DMs and text messages that should be objectively verifiable. Beyond that, we’ll have to see what happens. Sean Pendergast has more.

UPDATE: Now there are two accusers. This is getting worse.

Paxton whistleblower lawsuit can proceed

First step in a long road.

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The 3rd Court of Appeals on Friday denied a petition from Texas Attorney General Ken Paxton’s office to stop a trial court hearing in a suit filed by whistleblowers who claim they were wrongfully terminated after reporting Paxton to law enforcement for alleged bribery and other public corruption.

Attorneys for the office did not immediately respond to a request for comment, but they are likely to appeal the decision to the Texas Supreme Court.

“We were pleased, but not surprised, by the 3rd Court’s ruling,” said Carlos Soltero, who represents David Maxwell, the agency’s former director of law enforcement who was fired in November. “This brings us closer to being able to move forward and present our case on the merits, which we are looking forward to doing.”

[…]

A Travis County trial court on March 1 heard a motion by Paxton’s attorneys to dismiss the case. When the judge left the issue under advisement and continued on to entertain an injunction hearing in the case, Paxton’s attorneys appealed, arguing she needed to first rule on the motion to dismiss before proceeding. The appellate court temporarily stayed all further action in the case; the stay was lifted with Friday’s order.

We know about the whistleblower lawsuit. Paxton’s response to the charges against him are that the Office of the Attorney General is not subject to the state’s whistleblower laws and thus this lawsuit is moot and should be dismissed. Travis County judge Amy Clark Meachum denied the motion to dismiss the lawsuit on March 1, and when she attempted to proceed to the next phase of the suit, which involved hearing from the plaintiffs, Paxton’s lawyers objected:

Bill Helfand, an outside lawyer hired to represent the agency in the whistleblower case, argued that the motion to dismiss raised questions about the appropriateness of the lawsuit that needed to be addressed before any other matters could be considered.

Meachum noted that she had made no ruling that could be appealed, but Helfand insisted that “diving into the substantive issues” of the case was no different from issuing a ruling denying the motion to dismiss, allowing him to file an appeal that should have ended matters until the 3rd Court of Appeals could rule.

Meachum disagreed and opened the second hearing, where for the first time a court heard from two of those who accused Paxton of misconduct.

The first was Jeff Mateer, the former second-ranking executive at the attorney general’s office who resigned Oct. 2, two days after joining six other top executives in telling FBI agents that he believed Paxton was misusing the powers of his office to help Austin businessman Nate Paul.

Mateer, a lawyer, said he stood by his accusations against Paxton, but when he was asked to discuss them, he was interrupted by repeated objections from Helfand, who said providing details would violate attorney-client privilege and get into internal office deliberations that could not be discussed in court.

Mateer also testified that the two executives who want to be reinstated to their jobs — David Maxwell, former director of the agency’s Law Enforcement Division, and Ryan Vassar, former deputy attorney general for legal counsel — had performed their jobs well when he ran the office.

The court also heard from Vassar, who was fired in November and testified that he had received no criticism of his job performance or reprimands before speaking to FBI agents last year. Vassar was in the early stages of his testimony and was set to resume Tuesday morning.

The Third Court of Appeals initially ruled for Paxton and halted any further testimony until it issued a decision. This was the decision, which will now be appealed to the Supreme Court. Remember how every little thing in the securities fraud case against Paxton got appealed all the way up to the Court of Criminal Appeals before anything could be done, which is why that case is more than five years old now? Yeah, that’s the likely situation here as well. The FBI can’t arrest his ass fast enough.

Austin mask mandate enforcement still in place for now

No ruling, just a delay for a fuller hearing.

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Austin and Travis County officials can continue enforcing their mask mandates after a district judge delayed action on the Texas attorney general’s request to immediately stop the mandates.

That means city and county officials can continue to require masks until at least March 26, when District Judge Lora Livingston will hold a trial.

“People have been wearing masks for a year. I don’t know that two more weeks is going to matter one way or the other,” Livingston said during a Friday hearing, according to the Austin-American Statesman, which first reported the news.

[…]

Paxton’s lawyers pushed for an injunction hearing Friday, but Livingston said it wouldn’t be fair to give the defendants only a day to prepare, the Statesman reported. Livingston said after she hears arguments March 26, she’ll rule the same day.

Travis County Judge Andy Brown counts the two-week delay as a win. It buys the area some time to keep requiring masks while residents get vaccinated. It will also keep the mandate through most schools’ spring break holidays.

Abbott’s latest order states “no jurisdiction” can implement local restrictions, except a county judge and only when hospitalizations in a region exceed 15%.

“This case raises a pressing question: who is ultimately responsible for responding to the COVID-19 pandemic and other emergencies?” Paxton’s attorneys wrote in the lawsuit. “The Texas Disaster Act charges the Governor—not an assortment of thousands of county judges, city mayors, and local health officials—with leading the State’s response to a statewide emergency.”

But Brown and Adler argue that local public health officials maintain the authority to create orders on the local level to protect their community from pandemics. It’s different, they argued, from using emergency powers.

Brown said if the judge rules differently, it will have “huge ramifications” on local government moving forward.

Local government needs to be able to move quickly on issues of public health, he said, emphasizing that it’s “the whole point of the way our state government is set up.”

See here for the background. I certainly agree with Andy Brown about the ramifications for local governments, but it’s not like this is a surprise. Our Republican-dominated state government has been very clear about its priorities with respect to cities and (Democratic) counties. This is and will be just another example of that.

In the comments to the earlier post I was asked what would I have Austin and Travis County do about this. My deeply unsatisfying answer is that there isn’t anything they could do right now. The law and the courts are against them, and there isn’t even a symbolic win available. Paxton will prevail in court, very likely in swift fashion, and he’ll gloat about it. The only thing that can be done is to work extra hard to elect a better state government in 2022. Nothing will change until that happens. Believe me, I wish there were a better answer.

Harris County sues TxDOT over I-45

This ought to be interesting.

Plans to rebuild Interstate 45 in Houston, which state officials say need to move forward as they work through concerns expressed by critics, took what could be a lengthy detour into federal court Thursday.

In a lawsuit filed in downtown Houston, Harris County Attorney Christian Menefee asked the U.S. District Court for the Southern District of Texas to require the Texas Department of Transportation to redo much of the environmental review of the project and delay any further development of the $7 billion rebuild. Menefee cited the obsolete nature of some of the studies used to assess environmental impact and the lack of adequate protections for the residents who will be forced from their homes by the freeway widening.

“The I-45 expansion will displace families in more than 1,000 homes,” Menefee said. “It will also displace businesses, reduce parkland, and significantly impact the quality of life for folks living nearby. We are not taking this lightly, and Harris County residents deserve a fair process that addresses these issues.”

TxDOT officials said they could not comment directly on the lawsuit, but fretted that the decision to go to court stymies efforts to solve the issues that remain.

[…]

Advocates, many of whom in the past five years have grown increasingly frustrated with what they have called TxDOT’s lack of interest in solving some of the problems in favor of moving closer to construction, applauded the county’s lawsuit.

“TxDOT has brought this upon themselves,” said Michael Skelly, an organizer of the Make I-45 Better Coalition. “For many years, organizations and individuals from across the city have been making suggestions to TxDOT that would improve the project, reduce flooding, save taxpayers money, minimize displacement and enhance safety. TxDOT has ignored everyone.

“When TxDOT looks for who to blame, the mirror would be a good place to start,” he said.

The lawsuit, a challenge to the Texas Department of Transportation’s approval of the final environmental review last month, asks that all development of the project halt until the state can better analyze and resolve critics’ concerns. TxDOT officials, under an agreement with the Federal Highway Administration, can self-approve their environmental reviews if they show they properly followed national rules.

See here for the previous update. As the story notes, if this drags on then the I-45 project risks losing the state funding that has been appropriated for it, as TxDOT will put other projects ahead of it in line. The draft environmental impact study is from 2017, so one could certainly argue that things are different now – you know, post-Harvey and all that. I have no idea what to think of the odds on this, but this is the kind of County Attorney that Christian Menefee said he’d be on the campaign trail.

UPDATE: Looks like there’s already a delay in the process, and it has nothing to do with the lawsuit.

We’ll see how long that takes, too.

Paxton sues Austin and Travis County over its mask mandate

Completely expected.

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Texas Attorney General Ken Paxton is suing Travis County and Austin officials in an effort to force them to rescind their local mask orders, he announced Thursday.

“I told Travis County & The City of Austin to comply with state mask law,” Paxton tweeted. “They blew me off. So, once again, I’m dragging them to court.”

Texas on Wednesday lifted nearly all coronavirus restrictions, including Gov. Greg Abbott’s statewide mask mandate and occupancy restrictions. Abbott’s order said that “no jurisdiction” can require a person to wear a mask in public if the area doesn’t meet a certain number hospitalizations for the coronavirus. But Austin and Travis County health officials have said they will continue to enforce the safety protocols, setting the stage for yet another fight over pandemic response between state and local officials.

“[Travis County] Judge Brown and I will fight to defend and enforce our local health officials’ rules for as long as possible using all the power and tools available to us,” Austin Mayor Steve Adler said Thursday in a statement. “We promised to be guided by the doctors, science and data as concerns the pandemic and we do everything we can to keep that promise.”

[…]

Travis County Judge Andy Brown, who presides over the county government, said the authority to impose the local mask mandate comes from the county health authority, not from Brown’s emergency powers. Brown told The Texas Tribune on Wednesday that means the order should hold up in court.

“I listen to doctors, not to politicians like our attorney general,” Brown said.

As noted, Travis County and Austin extended their mandates on Wednesday, then Paxton sent them a letter saying basically “take that back or I’ll sue”. When they didn’t, he did. And look, no one holds Ken Paxton in greater contempt than I do, but he’s going to win this case. He may have to appeal it up a level or two to get there, but there’s just no way this story ends with the locals winning. I get the urge to defy the dumb order from Greg Abbott and to take a stand, but you gotta have a strategy and some reasonable expectation of achieving the outcome you want. This is not going to help.

Twitter sues Paxton

How the tables have turned.

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Twitter filed a lawsuit against Republican Texas Attorney General Ken Paxton in a California federal court Monday and asked a judge to halt the state’s top lawyer from investigating the company.

The social media giant’s court filings include a request for a temporary restraining order that would keep Paxton and his office from enforcing a demand that seeks documents revealing the company’s internal decision making processes for banning users, among other things.

Paxton, a fervent supporter of former President Donald Trump, sent the company a civil investigative demand after it banned Trump from its platform following January’s deadly siege at the U.S. Capitol.

Twitter wrote that it seeks to stop Paxton from “from unlawfully abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights.” The company claimed Paxton’s “retaliatory” investigation violated the First Amendment as an inappropriate use of government authority.

[…]

The attorney general is among Texas Republican leaders who have launched a campaign against technology and social media companies after officials and followers faced repercussions for sowing the election doubts that fueled the Capitol insurrection.

Twitter is one of five tech and social media firms to which Paxton issued civil investigative demands to learn about the procedures such companies use to regulate postings or user accounts.

Paxton, who attended the rally that preceded the attack on the U.S. Capitol, criticized companies’ moves after the siege, which included Twitter banning Trump from its platform.

“The seemingly coordinated de-platforming of the President of the United States and several leading voices not only chills free speech, it wholly silences those whose speech and political beliefs do not align with leaders of Big Tech companies,” Paxton said in a Jan. 13 news release.

Last week, Gov. Greg Abbott touted Texas legislation that seeks to crack down on social media companies’ perceived censorship of conservative voices. Senate Bill 12 would prohibit social media companies — including Facebook, Twitter and YouTube — from blocking, banning, demonetizing, or otherwise discriminating against a user based on their viewpoint or their location within Texas.

I’ve looked around but have not seen any legal analysis of this lawsuit, but Texas Lawyer adds some useful details.

The lawsuit, filed in the U.S. District Court for the Northern District of California Monday, asserts that Paxton issued a civil investigative demand just five days after the company announced its ban of Trump. The Attorney General’s Office demanded “volumes of highly confidential documents concerning Twitter’s internal content moderation processes—the public disclosure of which would undermine their effectiveness, and compromise Twitter’s ability to effectively and efficiently moderate content on its platform,” according to the complaint, which was surfaced by Law.com Radar.

Twitter alleges that Paxton violated the First Amendment by issuing the investigation targeting its editorial practices. The company says in the lawsuit that it attempted to work with Paxton to tailor the document requests but did not reach an agreement.

“Instead, AG Paxton made clear that he will use the full weight of his office, including his expansive investigatory powers, to retaliate against Twitter for having made editorial decisions with which he disagrees,” wrote Wilmer attorneys Patrick Carome, Ari Holtzblatt, Peter Neiman and Mark Flanagan. “Now Twitter, already targeted because of its protected activity, is left with the untenable choice to turn over highly sensitive documents or else face legal sanctions.”

Twitter is seeking an order declaring that Paxton violated the tech firm’s free speech rights and a temporary restraining order enjoining the office from continuing the investigation.

A Twitter representative said Paxton is misusing the powers of his office in an attempt to silence free speech. “As we’ve repeatedly stated, and recent research underscores, we enforce the Twitter Rules judiciously and impartially across our service,” the representative said in an email statement. “In the words of AG Paxton: ‘…[i]t is one thing to use the legal system to pursue public policy outcomes; but it is quite another to use prosecutorial weapons to intimidate critics, silence free speech, or chill the robust exchange of ideas.’”

You can see a copy of the lawsuit embedded in the story. Still no analysis, so I have no idea if it’s mostly noise that won’t survive a motion to dismiss or if it’s likely to succeed, but that helped. We do know that Paxton is a complete bootlicking toady for Donald Trump, and we do know that his lawsuit to try to overturn the election was trash, so it’s hardly a stretch to think that his “investigation” is something less than top-notch lawyering. I think we can also agree that SB12, if it manages to pass, will draw a multitude of lawsuits within days of it becoming law. I say pop the corn and enjoy the spectacle. Reform Austin and the Current have more.

Paxton sues Griddy

Bandwagon time.

Texas Attorney General Ken Paxton filed a lawsuit Monday against electricity retailer Griddy, claiming it misled customers using deceptive business practices after some customers reported bills costing tens of thousands of dollars.

These charges were incurred during Texas’ devastating winter storm that nearly shut down Texas’ electrical grid and sent energy demand skyrocketing. The lawsuit targets Griddy’s auto-billing system, which began drafting money out of customer’s accounts as the bills rolled in.

“Griddy misled Texans and signed them up for services which, in a time of crisis, resulted in individual Texans each losing thousands of dollars,” Paxton said in a statement. “As Texans struggled to survive this winter storm, Griddy made the suffering even worse as it debited outrageous amounts each day.”

Paxton noted this is the first lawsuit his office has filed against power companies after the widespread outages two weeks ago. A Houston-based law firm accused the company of price gouging and filed a separate class-action lawsuit last week.

[…]

Griddy customers paid a $10 monthly membership and in turn were passed wholesale power prices. These prices fluctuate but usually are cheaper than retail prices. However, unlike fixed-rate electricity plan users, Griddy customers are susceptible to market changes due to increased demand or reduced supply.

Paxton’s lawsuit claims the company understood the risk this posed to customers but misled them through its marketing.

Some customers have reported bills costing thousands of dollars, some surpassing $15,000. The retailer places the blame for the exorbitant prices on Texas’ Public Utility Commission, saying they were due to the commission jacking up wholesale prices.

See here for more on the previous lawsuit. I think that actin has some merit, but Paxton jumping in at this point has definite Claude Rains being shocked to discover gambling at the casino vibes to it. I mean, it’s not as if that risk hasn’t been there for customers since Griddy’s inception. It’s well within the power of the AG to sue over false or misleading advertising even before any actual harm is inflicted. This is what I meant when I said that the real problem here was that the system worked as designed.

Also, too: How do you think the cross-examination will go after Griddy’s lawyers call Dan Patrick to the stand to testify about his assertion that people should have read the fine print in their contracts?

Not sure what effect this will have on the proceedings, but we technically don’t have Griddy to kick around any more.

The state’s grid manager effectively shut Griddy down after the retail power company failed to make a required payment.

Griddy, which offers customers access to wholesale prices, gained notoriety for billing customers in the thousands of dollars when wholesale prices skyrocketed during the recent weather-driven power crisis. The Electric Reliability Council of Texas, or ERCOT, barred the company, headquartered in California, from participating in the state’s power markets.

Griddy said Monday that it asked the Electric Reliability Council of Texas, or ERCOT, for emergency help on Feb. 16 after the Public Utility Commission mandated that wholesale prices rise to the state maximum of $9,000 per kilowatt hour, where they stayed for days.

That cost, which passed through to Griddy customers, is equivalent to $9 per kilowatt hour on residential bills, compared to a typical 9 cents to 10 cents per kilowatt hour in fixed retail plans.

Griddy said ERCOT did respond to its plea for help. ERCOT “ decided to take this action against only one company that represents a tiny fraction of the market,” Griddy said.

A spokeswoman for ERCOT said the grid manager did work with Griddy, but could not discuss details because of confidentiality rules.

What do you suppose are the odds that Griddy will file its own lawsuit against ERCOT?

How will Biden handle judicial nominations in Texas?

Damn good question. He’s got to get better results than President Obama did.

Rep. Eddie Bernice Johnson

A potential showdown looms over Texas appointments after the White House tapped Rep. Eddie Bernice Johnson, a Dallas Democrat, to lead judicial vetting efforts that have traditionally been handled by the state’s Republican senators.

The arrangement, while not unprecedented, may foreshadow bruising partisan battles in the coming months over lifetime appointments to the bench, as well as key U.S. attorney spots.

House members have no defined role in that confirmation process, which instead works through the Senate. But there is an inherent tension in Texas these days: Democrats control the White House and Senate, while Texas Sens. John Cornyn and Ted Cruz are stalwart conservatives.

Johnson, a 15-term lawmaker who said the White House had tasked her to work with other Texas Democrats, channeled years of Democratic complaints that the GOP has stiffed them on judicial nominations by saying there is now “some expectation from our delegation that we have input.”

“It worked very well under Sen. [Phil] Gramm and Sen. [Kay Bailey] Hutchison,” she explained, referring to the two Texas Republicans who preceded Cornyn and Cruz in the Senate. “It hasn’t worked as well under Sen. Cornyn and Sen. Cruz.”

Cornyn and Cruz have pushed back on Democrats’ criticism that they’ve slow-walked the process under Democratic presidents and pressed fast-forward under GOP ones.

But the big question now is whether President Joe Biden and other Democrats — including Sen. Dick Durbin, the new chairman of the Senate Judiciary Committee — will really play hardball with the Texas Republicans by ignoring traditions designed to protect senators in the political minority.

[…]

There’s still the real potential for clashes in Texas over judicial nominations, though it could take some time for those disputes to materialize. While a new slate of U.S. attorneys will need to be dealt with relatively soon, there are currently no vacancies on the federal bench in Texas.

Much of the ongoing tension can be explained by how the status quo came about on Texas’ four district courts and the 5th Circuit Court of Appeals, the appellate court that covers the state.

Trump — working with Kentucky Sen. Mitch McConnell, the top Republican in the Senate — made federal judges a centerpiece of his four years in the White House, confirming them at a far faster pace than his predecessors, both Democrats and Republicans.

In Texas, Trump-appointed judges now comprise a plurality on the lower federal courts.

With a Republican in the White House and a GOP-run Senate, Cornyn and Cruz didn’t really need to seek input from Texas Democrats. Johnson, while saying she respects that the senators “are the senators,” fumed that “we didn’t even get a question or a call” over the last four years.

But the bigger Democratic complaint has centered on why Trump had so many vacancies to fill in the first place.

Democrats have long ripped Republicans for grinding judicial confirmations to a crawl after the GOP won the Senate in the latter stages of former President Barack Obama’s tenure. Trump often reveled in the vacancies he inherited, much to the chagrin of liberals in Texas and beyond.

“While we were able to find some very good judges, overall I don’t think the process worked very well,” said Christopher Kang, who oversaw the judicial nomination process under Obama. “Sens. Cornyn and Cruz were very challenging to work with, were very slow to work with.”

I’ve already discussed the US Attorney situation, which was an exercise in slow-walking in 2009-2010. I suppose it can serve as a way for Cornyn and Cruz to demonstrate that things will be different this time, but I see no reason to give them the benefit of the doubt. I say the Senators are welcome to put forth whatever names they want to, and if they’re sufficiently qualified and suitable, they can get in the queue alongside the nominees that Rep. Johnson and others provide. Otherwise, they can sit back and vote on the nominees like any other Senator, assuming that doesn’t conflict with Sen. Cruz’s busy travel schedule.

Has Ken Paxton been lying about his travel schedule?

Would anyone be surprised if he had been?

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When the media reported that Texas Attorney General Ken Paxton had flown to Utah with his wife in the middle of the state’s power crisis last week, Paxton called it a business trip that had been planned in advance.

Now a group of whistleblowers from his office who sparked an FBI investigation of Paxton are casting doubt on Paxton’s explanation.

In court records filed Friday, the whistleblowers say the attorney general had told a Travis County judge he could not appear at a hearing in their case because he was scheduled to be in Austin on Feb. 18 for a House appropriations committee hearing. The committee later canceled the hearing because of the state’s weather disaster.

Instead, the spokesman for Utah Attorney General Sean Reyes said Paxton met with Reyes on the afternoon of Feb. 19 and again on Feb. 21, as first reported by The Dallas Morning News. Paxton has not said when he arrived in Utah; he returned on Feb. 23.

“This begs the question: did Paxton pre-plan his Utah trip with plans to skip his legislative testimony, the hearing before this Court, or both?” the whistleblowers’ attorneys wrote in a filing Friday. “Or was Paxton simply lying to Texans about his trip to Utah having been pre-planned?”

See here for background on the Paxton travel situation, and here for the most recent update about the whistleblower lawsuit. It’s nice having a group of people who know Ken Paxton and his bullshit inside and out who are so motivated to call him on it. Other than adding to the public store of data about Ken Paxton’s dishonesty and lack of character, it’s not clear to me what effect this has on that lawsuit. The reason for asking to move the hearing was presumably legitimate, and for sure it would not have been heard on the original date once the committee meeting was canceled. I expect this is just to impugn Paxton’s credibility in the lawsuit, and to that extent it works as intended. The dude just can’t help himself. Reform Austin has more.

TEA appeals HISD takeover ruling to Supreme Court

One way or the other, this should get a resolution.

Lawyers representing the Texas Education Agency filed an appeal Wednesday asking the state Supreme Court to overturn a temporary injunction that has slowed Education Commissioner Mike Morath’s plans to strip power from all nine Houston ISD school board members.

The filing comes nearly two months after the Third District Court of Appeals, in a 2-1 decision, ruled that Morath did not follow laws and procedures that would give him the authority to temporarily replace HISD’s school board with a state-appointed board.

TEA pledged in late December 2020 to appeal the ruling to the Texas Supreme Court. If the state’s highest court overturns the injunction, TEA leaders could install a new board that could vote to end HISD’s lawsuit.

[…]

In their filing Wednesday, state lawyers representing the state argued the Third District Court of Appeals erred in its interpretation of laws and regulations on all three fronts. The lawyers also claimed HISD should not be able to sue the state over an administrative matter.

“This case is of immediate importance to HISD students,” Assistant Solicitor General Kyle Highful wrote in the appeal. “And the court of appeals’ misinterpretations of the law endanger TEA’s future efforts to assist failing schools.”

Each of the three issues considered by the Third District Court of Appeals largely fell along technical lines.

See here for the previous update. The ruling in favor of HISD was bipartisan, so this isn’t an R-versus-D issue in the way some other recent lawsuits have been. No idea how long this may take, so just keep on keeping on until we know more.

Deportation freeze still on hold

Grrrrrrrr.

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A federal judge in Texas has put an indefinite halt to President Joe Biden’s 100-day ban on deportations after issuing a preliminary injunction late Tuesday.

The ruling by Judge Drew Tipton comes after he had already temporarily paused the moratorium twice. The ban is nationwide and is in place as the case continues to play out in courts.

The ruling is a victory for Texas Attorney General Ken Paxton, who sued to block Biden’s order three days into the Biden administration. Paxton’s office argued the state would face financial harm if undocumented immigrants were released into the state because of costs associated with health care and education, and said the moratorium would also lure others to come to Texas.

Tipton, a Trump appointee to the federal bench, wrote in his order that Texas would also incur costs for detaining immigrants within its state. “Texas claimed injury from unanticipated detention costs is sufficiently concrete and imminent. The harm is concrete or de facto because Texas incurs real financial costs in detaining criminal aliens,” he wrote.

It’s unclear whether the Biden administration will appeal the ruling to the 5th Circuit Court of Appeals, which has jurisdiction over Texas’ federal benches.

See here, here, and here for the background. This continues to be a load of crap, though as noted before one that seems to have a fairly limited impact. I don’t know what the argument is for not appealing. You can find a copy of the order here.