Davis beats Abbott in court again

That’s probably the simplest way to understand this story.

Sen. Wendy Davis

Sen. Wendy Davis

A San Antonio federal court has ordered Texas to pay more than $260,000 in attorney fees to the legal team that helped state Sen. Wendy Davis beat back Republican attempts to carve up her district in 2011.

The ruling earlier this week amounts to another court victory for Davis, the frontrunner for the Democratic nomination for governor, in her years-long redistricting fight with state Republicans and Attorney General Greg Abbott, the presumptive GOP gubernatorial nominee.

Aside from Davis’ lawyers, the League of United Latin American Citizens, which also sued Texas over its 2011 state senate maps, was awarded a total of $93,000 by the court.

The state plans to appeal the ruling.

A Davis campaign spokeswoman said it is no surprise the court ruled to award legal fees to attorneys representing the Fort Worth senator since she previously was declared a prevailing party in the case.

“Greg Abbott should accept the facts and stop wasting taxpayer dollars,” spokeswoman Rebecca Acuna said.


Led by Abbott, the state told a federal three-judge panel in San Antonio over the summer it was backing off the senate maps drawn in 2011 in favor of a new set. That was cemented when the Legislature in June approved maps keeping Davis’ district intact, and in court in September when the judges declared Davis a “prevailing” party and instructed her lawyers to file for reimbursement.

The amount Davis was awarded was a lot less than what her team originally asked for, and a bit more than half of their revised figure. You’d think that might make this sum a reasonable one for Abbott to accept and move on, except that doing so is also an acceptance of the fact that she won in court. His argument is basically that the revised Senate map to which everyone agreed was a strategic retreat and that the original map was never judged on the merits, so Davis “never received a judgment on the merits of any of their claims”. The San Antonio court rejected that argument:

It is undisputed that Plaintiffs obtained significant, affirmative interim relief. This relief was judicially sanctioned, materially changed the legal relationship between the parties, and gave Plaintiffs all the relief they sought with regard to the 2012 elections. In addition, that relief was not and cannot now be reversed, dissolved, or otherwise undone.

Not surprisingly, Abbott has already announced his appeal, which will be heard by that bastion of fairness and impartiality, the Fifth Circuit. Abbott just won’t admit that he lost.

That wasn’t the only loss Abbott suffered in court this week.

The three-judge panel in the Texas redistricting case entered an order Wednesday denying a request by the State of Texas to modify the procedures the court would use to decide legislative privilege issues.

The order said the motion was being denied as premature since:

The legislative privilege is a personal one and may be waived or asserted by each individual legislator … [and] [a]ccordingly, neither the Governor, not the Secretary of State or the State of Texas has standing to assert the legislative privilege on behalf of any legislator or staff member that may be deposed.

However, the order went on to say that it was “nevertheless appropriate to provide the parties with some guidance as to how to proceed with future depositions” and set out several ground rules for the parties:

In sum, counsel for the State of Texas may not invoke the legislative privilege; each legislator, legislative aide, or staff person must assert or waive the privilege individually. Any person asserting the privilege must, however, provide enough facts so that a court, if necessary, can determine whether the information sought falls within the scope of the privilege. To the extent that any individual asserting the privilege has had communications or correspondence with any outside party or entity, such communication or correspondence waives the privilege as to the content of those communications.

See here and here for the background. The basic idea is that Abbott wants to shield Republican legislators and staffers from being asked questions about their intentions and thought processes and what have you during the redistricting trial. It was ruled for the first trial that there wasn’t a blanket invocation of privilege for legislative witnesses, but it could be invoked if needed. Abbott argued that circumstances in the retrial were different, and the court disagreed. The Express News wondered why Abbott was pursuing this argument.

There exists an immunity for state legislators from liability and from testifying. This is present in federal common law. On this much, the parties in the state’s ongoing redistricting litigation appear to agree.

The question is, how broad is the immunity?

In arguing for the federal court in San Antonio to modify its previous order on this issue, the Texas attorney general’s office would have us believe that the law makes this immunity broad beyond reason.

Essentially, it would have Texans believe that public servants need not make public what went into the creation of public policy — even in a court case.

In that previous court order on immunity, legislators could be deposed and could invoke legislative immunity but have to answer the questions anyway — with the depositions then placed under seal for court review.

Now, since a U.S. Supreme Court ruling returned challenges to the state’s redistricting maps to the lower court here, Texas argues that matters have changed and the order should be modified.

It asks that legislators who hadn’t previously waived privilege and new legislative witnesses be able to keep their mouths shut.

The court’s first order was bending over backward. What the state attorney general is now seeking is for the court to go into contortions to shield legislators from revealing what they know.


In the last go-around, it turns out that no legislator claimed privilege. If any lawmaker had, the public would have had a right to ask why.

So, in this latest round, what is it that the attorney general’s office doesn’t want us to know about how and why legislators crafted these maps?

Could it be that the maps were created and approved with full knowledge of whom these maps would keep in power and at which groups’ expense?

Embarrassing stuff said and written during the process, pointing to purposeful discrimination? So, quit doing that. Problem solved.

Given the state’s history on voter discrimination, the reluctance to be this forthcoming merely points to insidious maneuvering. The court — and the public — have a right to know.

Seems pretty reasonable to me. And if stuff that embarrasses the legislators, the Republican Party, or Greg Abbott happens to come out of the trial, that’s just too bad. As the E-N says, they shouldn’t have done those embarrassing things in the first place.

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