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Attorney General

Paxton thumbs his nose at open records demand

Water is wet. The sun rises in the east. Ken Paxton DGAF about government, ethics, accountability or any of that other namby-pamby stuff.

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Attorney General Ken Paxton said the Travis County district attorney’s determination that Paxton violated open records laws by withholding information related to his trip to Washington D.C. on the day of the Capitol insurrection was “meritless” and that his office had fulfilled its obligation under the law.

Last week, the district attorney’s office gave Paxton four days to turn over communications requested by the state’s leading newspapers relating to his trip or face a lawsuit.

On Friday, Austin Kinghorn, a lawyer for the attorney general’s office, dismissed the district attorney’s findings, saying the office had provided no provisions under the state’s open records law that had been violated and implied that the newspapers had made the requests to publish stories about them.

“In each instance, complainant’ allegations rely on unsupported assumptions and fundamental misunderstandings of the PIA and its requirements,” Kinghorn wrote. “Frustrated that they have failed to uncover anything worth reporting following ‘numerous open records requests to AG Paxton office for various documents,’ complainant newspaper editors have sought to leverage your office’s authority to further their fishing expedition, or worse, manufacture a conflict between our respective offices that will give rise to publishable content for the complainants’ media outlets.”

[…]

In the letter, the attorney general’s office said the newspaper editors base their complaint on an “awareness of a small number of inconsequential documents they believe should have been produced” in public records requests and “baselessly speculate” that Paxton is failing to comply with the open records law.

Kinghorn said the “inconsequential documents” include a text message sent to Paxton’s personal cell phone by a Dallas Morning News reporter and two “spam” emails and an internal email that announced the temporary closure of an office parking garage.

See here for the background and here for a copy of Paxton’s response. This was of course the most predictable event imaginable, and basically serves as the pregame warmup for whatever comes next. Which will be a lawsuit filed in Travis County district court, and after that a million legal maneuvers by Paxton to delay, obstruct, and as feasible ignore the whole process. It will end with a final ruling from the Supreme Court sometime between now and the heat death of the universe. If somehow Ken Paxton is still in office when this is ultimately resolved, it will be incontrovertible proof that we are indeed in the darkest timeline. Adjust your expectations, is what I’m trying to say here. The Chron has more.

Paxton asks Supreme Court to toss that pesky whistleblower lawsuit

Same argument, different court. Either Ken Paxton can be held accountable, or he gets a free pass to do whatever he wants.

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Texas Attorney General Ken Paxton has asked the Texas Supreme Court to toss out a whistleblower lawsuit by four former officials who say they were improperly fired after accusing Paxton of accepting bribes and taking other improper acts.

Paxton told the court that his agency “enjoys … the right to fire its employees — especially employees whose political appointments require they act on behalf of the duly elected Attorney General — at will.”

Paxton also argued that he can’t be sued because the Texas Whistleblower Act was intended to protect government employees from on-the-job retaliation by another public employee.

“The Attorney General is not a ‘public employee,'” said the appeal, filed Wednesday and made public Thursday. “Like the Governor, the Lieutenant Governor, and members of this Court, he is an elected officer, chosen by the people of Texas to exercise sovereign authority on their behalf.”

Paxton made similar arguments before the Austin-based 3rd Court of Appeals, but that court allowed the lawsuit to continue, ruling in October that the whistleblower act protects government workers from being fired for making “a good-faith report of illegal conduct … by the employer.”

Interpreting the act to exclude elected officials as employers would create a substantial loophole that runs counter to the law’s purpose of improving transparency and accountability, the 3rd Court ruled.

[…]

In his appeal to the Texas Supreme Court, Paxton characterized the complaints as matters involving policy disagreements — not a good-faith report of potential crimes as required by the whistleblower act.

“Plaintiffs were political appointees of the Attorney General who were dismissed from their posts following several policy disagreements. These disagreements each regarded duties well within the Attorney General’s authority, such as whether to retain outside counsel, issue a legal opinion, investigate potentially criminal acts and intervene in pending litigation,” the appeal said.

Paxton urged the all-Republican Supreme Court to reject the whistleblowers’ “vague, conclusory and speculative allegations,” saying they do not constitute a good-faith report of wrongdoing.

Lawyers for the whistleblowers will have the opportunity to respond to Paxton’s appeal in the coming weeks.

See here for the previous update. Paxton made the same argument to the Third Court, while also arguing that none of the whistleblowers had actually accused him of a crime, which meant they weren’t really blowing the whistle. I’m sure the plaintiffs will mostly repeat their earlier arguments as well. As for what the Supreme Court will do, or when they might do it – I for one will not be shocked if they wait until after the election – your guess is as good as mine. Reform Austin and KVUE have more.

Paxton still wants to be supreme prosecutor

Please hold firm, CCA.

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Texas Attorney General Ken Paxton has asked the state’s highest criminal court to reconsider a recent decision that stripped his agency of the power to prosecute election law violations.

The Texas Court of Criminal Appeals, in an 8-1 ruling issued Dec. 15, struck down the state law that gave the attorney general’s office the authority to pursue criminal violations of the Election Code.

That 1985 law, the all-Republican court determined, violated the Texas Constitution’s separation of powers doctrine by granting Paxton’s executive branch office the prosecution authority that is reserved for district and county attorneys, who are members of the judicial branch.

Paxton, in a motion for rehearing filed electronically Sunday, asked the appeals court to reconsider, arguing that the ruling improperly stepped on the Legislature’s ability to delegate power to his agency.

[…]

In its December ruling, the Court of Criminal Appeals said the Texas Constitution gives district and county attorneys the power to prosecute criminal law violations, with the ability to seek help from Paxton’s agency if needed.

On the other hand, the court ruled, the constitution limits the attorney general’s powers to inquiring into charter rights of private corporations, suing in state court to prevent private corporations from exercising unlawful powers, seeking judicial forfeiture of charters, and providing legal advice to the governor and other executive officers.

“Notably absent from these enumerations is a specific grant of authority to the Attorney General concerning the prosecution of criminal proceedings,” said the ruling, written by Judge Jesse McClure III.

“In the Texas Constitution, the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally,” McClure wrote.

Paxton said the ruling upends about 70 years of practice and jeopardizes the prosecution of election law violations by leaving it to local prosecutors — including some who, he said, can’t be trusted with the job.

“Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution,” he said.

See here for the background. We all know what it is that Paxton wants to do, and I’m sure the CCA is aware as well. Their ruling was clear and it wasn’t close, and given Paxton’s plainly stated motivations, the only possible explanation for a reversal at this point – again, a reversal of their own 8-1 ruling, handed down less than a month ago – would be pure partisan politics. Is the CCA able to withstand that kind of pressure? I sure hope so.

Three comments about three vaccine mandate news stories

Item one:

A U.S. district judge in North Texas has blocked a mask mandate and vaccine requirement for staff and students in the Head Start program that was issued by President Joe Biden.

Head Start is a federal school readiness program for young kids in low-income families that is administered nationally by the federal Health and Human Services department, but run locally by nonprofits or schools. Biden previously ordered that staff running Head Start programs must be vaccinated and all students over the age of 2 had to wear masks. Texas Attorney General Ken Paxton and Lubbock ISD sued the Biden administration to stop enforcement of that order.

U.S. District Judge James Wesley Hendrix, a 2019 appointee of Republican President Donald Trump, ruled Friday that the Biden administration could not enforce its mask and vaccine mandates for the Head Start program in Texas, although the mandates would continue in other states.

Hendrix wrote that the process by which the Biden administration implemented the mask and vaccine rules was in violation of federal law because such rules could only be put in place through a detailed process or with the authorization of Congress. The order applies until the judge holds a trial and issues a final decision on the full merits of the case, or if it is lifted by a higher court.

Item two:

In the state’s latest push against federal vaccine mandates, Gov. Greg Abbott on Tuesday announced plans to sue the Biden administration for requiring Texas National Guard members to get vaccinated against COVID-19.

The suit would be the latest in what has been a slew of litigation against federal vaccine mandates that Texas has either brought forth or taken part in during the pandemic.

In a letter issued Tuesday to Maj. Gen. Tracy R. Norris, the adjutant general of the Texas National Guard, Abbott claimed authority to exempt Texas guard members from receiving the vaccine.

Item three:

A federal judge in Fort Worth granted an injunction Monday against the Department of Defense and the Biden Administration that temporarily halted the U.S. Navy’s COVID-19 vaccine mandate.

The mandate is challenged by a group of U.S. Navy SEALs and other Naval special warfare personnel who say the mandate violates their religious freedom and they have been denied religious exemptions from receiving the vaccine.

U.S. District Judge Reed O’Connor of the Northern District of Texas signed the injunction order after hearing testimony from several Navy SEALs in December as part of the group’s lawsuit. The suit is against President Joe Biden, the Department of Defense, the Secretary of Defense and the Secretary of the Navy Carlos Del Toro.

My comments:

1. It is impossible to overstate how much Greg Abbott and Ken Paxton are on the side of the COVID virus. They themselves are vaccinated, because they are not stupid and want to stay alive, but they absolutely do not care how many people die as a result of COVID. They see only political advantage in making the pandemic worse.

2. They will always be able to find Trumpy judges to plead their cases to, and will generally get favorable rulings from them as a result.

3. The only way to stop the state of Texas from filing these lawsuits is to elect a Democrat as Attorney General. Electing Beto O’Rourke as Governor would also help, as he would be less likely to impose pro-COVID executive orders.

Any questions?

From the “Keeping track of all these lawsuits is hard” department

Spotted on Democracy Docket:

Still the only voter ID anyone should need

Today, a judge for the U.S. District Court for the Western District of Texas denied a motion to dismiss Vote.org v. Callanen. The case, filed earlier this summer, challenges Texas’ “wet signature” law that requires individuals who submit their registration applications electronically or through fax to also provide a copy of their application with their signature — meaning signed with pen on paper. The complaint argues that this law unduly burdens the right to vote and targets voting advocacy groups such as Vote.org in violation of the First and 14th Amendments and the Civil Rights Act of 1964 and asks the court to prohibit its enforcement. The court already rejected one attempt to dismiss the case earlier this fall.

The court also rejected a motion to dismiss the case filed by Texas Attorney General Ken Paxton (R) that was joined by two county elections administrators. The motion claimed that Vote.org did not have standing to bring this case and that its complaint was insufficient. The court held that Vote.org had sufficiently shown that the wet signature law would cause harm to the organization’s efforts to register voters and the court may be able to provide the requested relief. The court also rejected the defendants’ arguments that there was no private right of action to sue and the plaintiffs’ claim fails because they did not allege any racial discrimination, finding that neither argument was supported by precedent. The case will move forward and all claims will be litigated to determine if the wet signature law is constitutional and in line with federal law.

My first reaction when I see something like this is to search through my archives for any past blog posts about it. Usually there is something, even in cases where I don’t immediately recognize the issue. I know I’ve heard of this lawsuit before, and sure enough I land on this post, about a federal lawsuit filed in San Antonio by a group including Vote.org over the state of Texas’ rejection of voter registration applications that did not include an “original signature” but instead an electronic one. But that lawsuit was filed in January of 2020, and this one was filed earlier this summer, in response to a bill passed during the regular session. I can’t find any further posts about the January 2020 lawsuit, and I seem to not have blogged about the one from this July. Oops.

My best guess here is that the initial lawsuit was dismissed for some reason – I can’t find any reference to it on the Democracy Docket webpage – and the July one was filed partly in response to the reasons the original one was tossed. I note that the first lawsuit had several other plaintiffs (the DCCC, the DSCC, and the TDP), while this one just has Vote.org associated with it. Or maybe it was withdrawn for some reason, with the same logic behind Lawsuit #2. If somehow that first lawsuit were still in existence, I would assume that it has been or will be combined with this one. Since I don’t see that on the lawsuit webpage (where you can see the original complaint plus two followup documents), I go back to my first assumption, that the 2020 lawsuit is no more. If someone reading this knows how to search for these things in the federal court system, please let me know if I’m mistaken in that.

Anyway. The point here is that allowing electronic signatures, which are common in all kinds of other legal transactions, would make it a lot easier to do voter registration. Which, of course, the state of Texas does not want. Note that the bill in question was a large one that did a lot of things – the initial text is all about recounts, and at first I thought this must have been the wrong legislation – but the “original signature” provision is in there later on. It was passed with bipartisan support, and I will just have to ask someone about it, because there must have been some good things in there for that to have happened. Be that as it may, we’ll see where this lawsuit goes.

Apparently, we’re still litigating whether Texas Central is a railroad

I admit, I’m a bit confused by this.

The Texas attorney general’s office has put its weight behind a landowner’s case against the companies developing a controversial Dallas-Houston bullet train, arguing they can’t force people to sell parcels needed for the high-speed rail project.

Weighing in on the matter at the invitation of the Texas Supreme Court, the attorney general’s office offered the latest twist in the nearly decade-long fight over a 240-mile line that would connect Dallas and Houston. While the project has picked up support from leaders of urban areas, it’s encountered hard resistance from residents of the rural counties on its proposed path.

One of those residents, Leon County landowner James Miles, sued Texas Central after the private company sought permission to survey his 600-acre property in 2015 as part of its efforts to examine the land for the project. Miles asked the courts to declare that the company did not have the right to enter his property because it does not have the eminent domain authority granted to railroad companies.

He won at a trial court, but the legal dispute reached the Texas Supreme Court after a state appellate court in Corpus Christi sided with Texas Central and a related company.

In a legal brief filed with the Texas Supreme Court on Friday, deputies for Texas Attorney General Ken Paxton argued the high court should reverse that appellate decision and rule in Miles’ favor because the companies fall short of the Texas Constitution’s definition of a rail company.

“The [companies] may only make preliminary examinations and surveys of private landowners’ properties for the purpose of constructing and operating a bullet train if they are either railroad companies or interurban electric railway companies,” the state wrote in its brief. “In the State’s view, the [companies] are neither.”

That leaves them with “no authority to enter, examine, survey or condemn Miles’ land,” the state wrote.

I am confused because at last report, the Supreme Court had declined to review that 13th Court of Appeals’ verdict. I Am Not A Lawyer, but right there in the story that I blogged about was the clear suggestion that this was the end of the road for that case. However, now that I see this story, a bit of googling shows that the Supreme Court granted a motion for a rehearing, which you can see here. It doesn’t seem to me that any new issues were raised by the Miles plaintiff, but what do I know? In any event, this explains why the AG brief says it is in response to “the Court’s letter of October 15, 2021 inviting the Solicitor General to express the views of the State of Texas”. Oral arguments for this are set for January 11. If any of you lawyers out there want to shed some extra light on this, by all means please be my guest.

Come watch Ken Paxton light your tax dollars on fire

I mean, Theranos would have delivered a greater return on investment than this.

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Texas Republican Attorney General Ken Paxton has been one of former President Donald Trump’s most reliable allies in spreading the myth of widespread voter fraud, particularly in the 2020 election, and frequently boasts that few states are as vigilant.

His office’s election integrity unit added two lawyers to the team in the last year, bringing it up to six staffers total, and worked more than 20,000 hours between October 2020 and September 2021. Its budget, meanwhile, ratcheted up from $1.9 million to $2.2 million during that time.

Yet records from the office show that the unit closed just three cases this year, down from 17 last year, and opened seven new ones. That includes the newly created unit focused on the 2021 local elections, which has yet to file a single case.

“This is an exorbitant amount of money that has resulted in no benefit for the average Texan,” said Austin Evers, executive director of American Oversight, a left-leaning nonprofit government watchdog that regularly files public information requests and files suits to force compliance with those requests. The organization shared some records it obtained from the Texas Attorney General’s Office with Hearst Newspapers for this report; others were obtained independently by Hearst Newspapers.

Evers added: “Taxpayers are funding a political stunt meant to fuel the false claim of a stolen election and justify voting restrictions.”

[…]

Richard L. Hasen, an election law professor at the University of California at Irvine, said there’s a more likely explanation, noting that Paxton, who is running for re-election, has “every incentive,” politically speaking, to vigorously go after voter fraud, as it’s an issue that energizes his party’s base.

“He’s finding very little of it despite spending a lot of money and using a lot of resources looking for it,” Hasen said. “The reason is not that such fraud is too hard to find. Those that commit voter fraud tend not to be brain surgeons. The reason he’s not finding a lot of it is because voter fraud is rare.”

Multiple academic studies and journalistic reviews have uncovered no evidence of widespread voter fraud, nor did a wide-ranging investigation of election fraud in 2020 conducted by the U.S. Justice Department.

There’s more, and the story does a good job of highlighting how Paxton takes the ridiculously small numbers involved in his crusade and exaggerates them to make them sound slightly less small, so read the rest. Just understand that facts have nothing to do with any of this, and won’t do anything to deter Paxton and his raving band of saboteurs. The argument here is exactly the same as the ones that Republicans have been using for at least the last 20 years for spending on “border security”: If they catch more cases of “vote fraud” it means that what they’re doing is working and so they need to get more money for it. If they catch fewer cases, it means that they’re falling behind and need to get more money to keep up. There are no circumstances under which spending less on this useless and harmful exercise makes sense.

One more thing:

While it’s true that the office has more cases pending this year over last year, 44 up from 38, that’s not because of a surge in new prosecutions. It’s because the vast majority of cases that were pending around this time last year are still making their way through the court system.

Among the cases pending include that of Hervis Rogers, a Black man from Houston who was charged this year with illegally voting while on parole, after he had made national headlines for waiting six hours to vote in the 2020 primary election.

A new ruling from the state’s highest criminal court Wednesday may afford legal relief to Rogers and potentially others, after it found that Paxton’s office does not have the constitutional right to prosecute voter fraud without the consent of local prosecutors.

Yes, given that recent ruling, one has to wonder how much of this activity is even legal at this point. I would suggest that attorneys for every one of the defendants in Paxton’s crosshairs, as well as all of those that have been convicted or pled guilty to something, start filing briefs to have cases and convictions tossed. Let’s expose this for the mockery it is.

CCA tells Ken Paxton he’s not the supreme prosecutor

Cry me a river, Kenny.

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Texas’ highest court for criminal cases on Wednesday struck down a law that allows the attorney general to unilaterally prosecute election cases.

The state’s Court of Criminal Appeals issued an 8-1 opinion saying a provision of the law violates the separation of powers clause in the Texas Constitution, representing an intrusion by the executive branch into the judicial branch. The attorney general can only get involved in a case when asked to by a district or county attorney, the court said.

Attorney General Ken Paxton, a Republican who has been aggressive in trying to root out voter fraud, bashed the opinion from the all-GOP court. He said in a tweet that the ruling “could be devastating for future elections in Texas.”

At stake was a part of the election code that says the attorney general, the state’s top law enforcement officer, “may prosecute a criminal offense prescribed by the election laws of this state.”

The provision was thrown into jeopardy by a long-winding case involving Jefferson County Sheriff Zena Stephens. After the county district attorney declined to prosecute Stephens over campaign-finance allegations stemming from the 2016 election, Paxton’s office stepped in and obtained an indictment from a grand jury in neighboring Chambers County.

In its opinion, the Court of Criminal Appeals overturned a lower-court ruling that said the election code provision “clearly and unambiguously gives the Attorney General power to prosecute criminal laws prescribed by election laws generally whether those laws are inside or outside the Code.”

Rather, the Court of Criminal Appeals said, “the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally.”

I don’t have any posts about this, but from reading the opinion, Sheriff Stephens, who was elected in 2016, was charged with making false claims on her finance report, specifically claiming that some $5,000 contributions were actually under $50. I don’t know what her explanation was, or why the JeffCo DA declined to prosecute. The rest of the opinion is pretty dense and technical, but the summary of what is at stake is quite simple. Here’s the opening paragraph from the opinion:

Zena Collins Stephens appeals both the court of appeals’ denial of a pretrial writ of habeas corpus and its reversal of the district court’s decision to quash Count I of the indictment. She presents the following question: May the Texas Legislature delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts? No. Because Texas Election Code section 273.021 delegates to the Attorney General a power more properly assigned to the judicial department, we conclude that the statute is unconstitutional. Therefore, we reverse the decision of the court of appeals and remand the case to the trial court to dismiss the indictment.

And here’s the section of the law in question, which is now null and void. Interestingly, that law passed originally in 1985, and was last modified in 1997. Either no AG had ever tried this before, or there are some people that have been prosecuted and maybe convicted under this statute that deserve some relief.

Anyway. I for one will sleep better tonight knowing that Ken Paxton does not have unfettered discretion to bring vote “fraud” charges against anyone he feels like. (I’m also old enough to remember when the main function of the AG’s office was civil enforcement and collecting child support. My aunt worked in that office in the 80s and 90s, and that was what her department did.) I’ll give the last word to these gentlemen:

I’ll take my wins where I can get them.

A brief filing update

Just a few observations as we head out of the holiday season and into what I expect will be the busier part of the filing period. I’m using the Patrick Svitek spreadsheet, the SOS candidate filing resource, and the candidate filing info at the harrisvotes.com site for my notes.

– There’s now a fourth candidate listed for Attorney General on the Dem side, someone named Mike Fields, who along with Joe Jaworski has officially filed as of today. I can’t find anything to clarify this person’s identity – there’s no address listed on the SOS page, and Google mostly returned info about the former County Court judge who is now serving as a retired judge and who last ran for office as a Republican. I seriously doubt this is the Mike Fields who is running for AG as a Dem. I know nothing more than that.

– No Dems yet for Comptroller or Ag Commissioner, though I saw a brief mention somewhere (which I now can’t find) of a prospective Dem for the former. I feel reasonably confident there will be candidates for these offices, though how viable they are remains to be seen.

– Nothing terribly interesting on the Congressional front yet. A couple of Dems have filed for the open and tough-to-hold CD15; I don’t know anything about them. State Rep. Jasmine Crockett, in her first term in the Lege, will run for CD30, the seat being vacated by the retiring Rep. Eddie Bernice Johnson, who has endorsed Crockett for the primary. That race will surely draw a crowd, but having EBJ in her corner will surely help. No incumbents have yet drawn any primary challenges, though Reps. Vicente Gonzalez (now running in CD34) and Lloyd Doggett (now running in CD37) will have company for their new spots. I am not aware of any Dem yet for the new CD38, which should be Republican at least in the short term but which stands as the biggest prize available for Harris County Democrats.

Michelle Palmer has re-upped for SBOE6, which will be a tougher race this time around. I’m working on a post about the electoral trends for the new SBOE map.

– Sara Stapleton-Barrera and Morgan LaMantia have filed for the open SD27 Senate seat; Rep. Alex Dominguez has not yet filed. Nothing else of interest there.

– For the State House, I’m going to focus on area districts:

HD26 – Former SBOE member Lawrence Allen Jr, who ran in the 2020 primary for this seat, has filed.

HD28 – Eliz Markowitz still has an active campaign website and Facebook page, but I don’t see anything on either to indicate that she’s running again. One person who is running though he hasn’t filed yet is Nelvin Adriatico, who ran for Houston City Council District J in 2019.

HD76 – The spreadsheet lists four candidates so far. Two ran in 2020, Sarah DeMerchant (the 2020 nominee) and Suleman Lalani (who lost to DeMerchant in the primary runoff). Two are new, Vanesia Johnson and James Burnett. This new-to-Fort-Bend district went 61-38 for Joe Biden in 2020, so the primary winner will be heavily favored in November.

HD132 – Chase West has filed. He’s not from the traditional candidate mold, which should make for an interesting campaign. This district was made more Republican and is not the top local pickup opportunity, but it’s on the radar.

HD138 – Stephanie Morales has filed. This is the top local pickup opportunity – the Presidential numbers are closer in HD133, which does not yet have a candidate that I’m aware of, but it’s more Republican downballot.

HD142 – Jerry Davis is listed on the Svitek spreadsheet as a challenger to Rep. Harold Dutton. He hasn’t filed yet, and I don’t see any campaign presence on the web yet. That’s all I know.

HD147 – I am aware of a couple of candidates so far to fill the seat left vacant by Rep. Garnet Coleman’s retirement. Nam Subramaniam has filed. HCC Trustee Reagan Flowers sent out a press release over the weekend stating her intention to run. I would expect there to be more contenders for this open seat.

– For Harris County offices, there are already some people campaigning as challengers to incumbents. Carla Wyatt is running for Treasurer, Desiree Broadnax is running for District Clerk. On the Republican side, former District Clerk Chris Daniel has filed for his old office, and someone named Kyle Scott has filed for Treasurer. There are no Democratic challengers that I can see yet for County Clerk or County Judge, though there are a couple of Republicans for County Judge, Vidal Martinez and Alexandra Mealer. Finally, there’s a fourth name out there for County Commissioner in Precinct 4, Jeff Stauber, who last ran for Commissioner in Precinct 2 in 2018 and for Sheriff in 2016, falling short in the primary both times.

So that’s what I know at this time. Feel free to add what you know in the comments. I’ll post more updates as I get them.

Louie Gohmert will run for AG

I got nothing.

Louie Gohmert

U.S. Rep. Louie Gohmert, R-Tyler, announced Monday he is running for attorney general, challenging fellow Republican Ken Paxton, in the already crowded primary.

“Texas I am officially running to be your next Attorney General and will enforce the rule of law,” Gohmert tweeted after announcing his campaign on Newsmax.

Gohmert announced earlier this month that he would join the GOP lineup against Paxton if he could raise $1 million in 10 days. The 10th day was Friday. Gohmert said in an announcement video that he has “reached our initial goal of raising $1 million in order to start a run for” attorney general, though he did not confirm whether he was able to collect it in 10 days.

Gohmert is at least the fourth primary opponent that Paxton has drawn. The others include Land Commissioner George P. Bush, former Texas Supreme Court Justice Eva Guzman and state Rep. Matt Krause of Fort Worth. At least three Democrats are also running for the job.

See here for the background. It must be noted that this means that Gohmert will no longer be in Congress after next year. I’m going to need some time to fully absorb that. Of course, there’s a zero percent chance that whoever survives the Republican primary for CD01 will be any better than Gohmert. That does temper things a bit.

Gohmert was originally scheduled to announce his decision Friday on Mark Davis’ radio show in Dallas, but he never called in and the show went off air without hearing from him.

Louie’s gotta Louie. If you look up the word “shitshow” in the dictionary, it will simply say “The 2022 Republican primary for Attorney General in Texas”. God help us all.

UPDATE: Per the Chron and Taylor Goldenstein on Twitter, State Rep. Matt Krause, the chief of the library police, will drop out of the AG race to run for Tarrant County DA, and he will endorse Gohmert. Of course he will. Reform Austin has more.

Texas sues over the health care workers vaccine mandate

It’s a trifecta.

In Texas’ latest legal challenge targeting federal vaccination mandates, Attorney General Ken Paxton is suing the Biden administration over its recent order requiring health workers to receive the COVID-19 vaccine.

The Biden administration issued an emergency order, which went into effect Nov. 4, requiring eligible workers at health care facilities participating in the Medicare and Medicaid programs to get the first shot of a two-dose vaccine or a one-dose vaccine by Dec. 6.

Paxton called the mandate “an unprecedented federal vaccine decree” on health care workers.

“At a time when we need healthcare workers more than ever before, amid a harrowing worker shortage, the Biden Administration has prioritized this unlawful vaccine mandate over the healthcare of all Americans,” Paxton said Monday night in a statement. “We need healthcare workers, regardless of their vaccination status, and this decision puts us on track for an impending disaster within the healthcare industry.”

Texas joins 10 other states suing the Biden administration over the mandate.

This joins the federal contractors mandate lawsuit and the employer mandate lawsuit, which by the way will now go to the Sixth Circuit, which may not be an improvement. There’s no point in making arguments about public safety or any other merit-base claim. The Fifth Circuit is gonna do what the Fifth Circuit does, and then either SCOTUS will step in or they’ll wave their hands at the complex legal complexities of it all and hope it’s all moot by the time it gets back to them. If you want to do something about it, support the Democratic nominee for AG against Ken Paxton or one of the Ken Paxton wannabes in 2022. That’s the one fully clear thing in this mess.

Joy Diaz

A bit of “potential candidate” news is tucked into this story about the current state of the Democratic statewide slate.

Joy Diaz

If Democrats had a mantra, it would probably be something like “diversity and inclusion.”

So it’s kind of strange that since jockeying in Texas began for positions on the party’s 2022 statewide ballot, nearly all of the focus has been on white men. You might argue that there’s some diversity within that group: One of the white guys is in his late 40s, one is in his late 50s, and two recently crossed into their 60s.

For the record, we’re talking about Beto O’Rourke, who’s 49 and expected to someday officially announce he’s running for governor; 59-year-old Joe Jaworski, a former mayor of Galveston who’s running for attorney general; and the two 60-year-olds, Mike Collier, who wants a rematch with Lt. Gov. Dan Patrick, and Matthew Dowd, the Democrat-turned-Republican-turned-Democrat who also wants to take on Patrick.

[…]

But a more diverse statewide field appears to be shaping up on the Democratic side. On Monday, Brownsville lawyer Rochelle Garza dropped plans to seek an open South Texas congressional seat that was redrawn to give Republicans an edge and announced she was joining the race for attorney general. Dallas civil rights lawyer Lee Merritt, who is Black, has been running a low-key race for AG since July. Merritt has not been chasing headlines, but he has assembled a somewhat impressive list of small donors to his campaign.

And on Wednesday, a newcomer teased out vague plans about entering the political arena. Broadcast journalist Joy Diaz, who since 2005 has covered politics and public policy for Austin’s public radio station, said she could no longer mask her biases while “covering the issues of race and inequality.”

In a story posted on her station’s website, Diaz said she plans to run for office. She didn’t say which office, but a handful of Democratic operatives said she’s been putting out feelers for a possible run for governor.

If that holds, it would pit her against O’Rourke — assuming he runs — and certainly test his strength both among Hispanic Democrats and across the party’s base. In the 2018 Democratic primary for U.S. Senate, before he transformed into the money-raising machine he would become in the general election contest against Ted Cruz, O’Rourke vastly underperformed in several heavily Hispanic border counties against little-known opponent Sema Hernandez.

Statewide, O’Rourke’s margin of victory in the primary was a bit better than 60-40, which might be considered modest for someone who at the time was a three-term congressman running against a political novice.

Here’s the story. Hard to say much more until such time as she gets more specific, but if she does run for something then I welcome her presence. I will also welcome Beto’s presence when he finally makes it official.

I’d like to address the last two paragraphs as well, since Beto’s performance in the 2018 primary has been a regular talking point even though he did just fine in all those counties in the general election when it really counted. Did you know that in the 2018 Republican primary, George P. Bush and Sid Miller, both incumbents running for re-election, did worse than Beto in their own primaries? Miller got 55.65% against two no-name candidates (well, okay, one was Internet legend Jim Hogan, the 2014 Democratic nominee for Ag Commissioner), while Bush got 58.22% against three candidates, two no-names and former Land Commissioner Jerry Patterson. Beto got 61.81% in a three-way race that included Sema Hernandez. That was his first statewide run, while again those guys were incumbents. Somehow, that never gets mentioned, possibly because the “Anglo Dem underperformed against a no-name Hispanic in South Texas” angle is always sexy.

Also, since this story also mentions a couple of non-Anglo Republicans running for Attorney General (P Bush and Eva Guzman) and Ag Commissioner (James White), I’ll note that if you go farther down the Dem ticket there’s more diversity as well. Austin attorney and community organizer Jinny Suh announced her candidacy for Land Commissioner back in September. We’re still a few days out from the start of filing season, and I fully expect there will be plenty more candidates that we’re not currently talking about to make themselves known.

Sometimes, you really do have to hand it to Louie Gohmert

Of all the Louie Gohmerts in the world, he’s the Louie Gohmertiest.

Louie Gohmert

U.S. Rep. Louie Gohmert, R-Tyler, appears to be exploring a run for Texas attorney general, weighing a late entry into the already crowded primary to unseat GOP incumbent Ken Paxton.

Gohmert was set to make a “very important” campaign announcement Tuesday morning in Tyler, and while it is unclear whether that happened, a website surfaced around the same time that claimed he was making an “exploratory” effort in the race. The Texas Ethics Commission said afterward that it received a new campaign treasurer appointment from Gohmert for an attorney general run, one of the first formal steps someone has to take to vie for state office.

[…]

The public rollout of Gohmert’s apparent exploratory committee was messy. He had been scheduled to be in Tyler at 11:30 a.m. to make what was billed as a “very important campaign kick-off announcement.” Around noon, his campaign’s Twitter account tweeted a live broadcast that did not work. After the purported campaign website surfaced on social media, he did not respond to calls and a text message seeking comment.

Gohmert’s district’s office referred questions about the announcement to a campaign email address, which did not respond to multiple messages.

The URL for the website purporting to be about the exploratory effort is not the same as one for another Gohmert campaign website, which still says he is running for Congress.

The more recent website says Gohmert “needs 100,000 citizens to send $100 each (or any other amount to get to $1,000,000) by November 19.” However, the product of 100,000 and $100 is $10 million, not $1 million.

We all know that politics is just performance art these days for the likes of Louie, but it’s still breathtaking to see its execution in the hands of a true master. How could any so-called “artist” even try to compete with this? Truly, we are not worthy.

UT/Trib: Abbott 46, Beto 37

Data point #2, arriving on schedule.

Gov. Greg Abbott has a comfortable lead over potential Democratic challenger Beto O’Rourke, according to a new poll from the University of Texas at Austin and The Texas Tribune.

The survey of registered voters found Abbott with a 9-percentage-point advantage over O’Rourke, 46% to 37%. Seven percent of respondents picked someone else in the hypothetical matchup, and 10% said they have not thought about it enough to have an opinion.

O’Rourke is increasingly expected to challenge the Republican governor for a third term next year, though he has not made an announcement yet.

Both men have vulnerabilities, according to the survey. Abbott’s approval rating has slightly improved since the last poll in August, but it remains underwater, with 43% of voters approving of the job he is doing and 48% disapproving.

O’Rourke, meanwhile, has a well-defined — and negative — image with voters. Only 35% of respondents said they have a favorable opinion of him, while 50% registered an unfavorable opinion. Only 7% of voters said they did not know him or had no opinion of him.

While O’Rourke is widely liked by Democrats and widely disliked by Republicans, his low favorability with independents is hurting his overall showing: Only 22% of them have a positive view of him, while 48% have a negative view.

Abbott’s numbers with independents are nothing to brag about, either. Twenty-seven percent of them approve of his job performance, while 57% disapprove.

O’Rourke’s initial 9-point deficit “is as good a starting point as Democrats are gonna get,” said James Henson, co-director of the poll and head of the Texas Politics Project at the University of Texas at Austin.

[…]

One other potential gubernatorial candidate who has captured the attention of the political world is actor Matthew McConaughey. He has teased a possible run for months, without saying which primary he would run in — or whether he would run as an independent.

The poll discovered that the movie star is not universally beloved by Texans. Close to a third of voters — 29% — have neither a favorable nor unfavorable opinion of McConaughey. Thirty-five percent registered a favorable opinion of him, and 24% said they had an unfavorable impression.

Any Democratic candidate will have to contend with a president from their party, Joe Biden, who is deeply unpopular in Texas. In the poll, voters gave him a net approval rating of negative 20 points, with 35% approving of his job performance and 55% disapproving. That is wider than the 11-point deficit that the survey found between the two ratings for Biden in August.

See here for the previous poll result we got, from the Texas Hispanic Policy Foundation. There’s another story about various issue questions, which largely boils down to “Democrats and Republicans disagree on things, and independents sometimes go one way and sometimes go the other”. Neither seems to have a link to their data, so who knows how it all breaks down. I will note that given the existence of that other poll in which Abbott led Beto by one, down nine is not really “as good a starting point as Democrats are gonna get”, but whatever.

This poll also included questions about the primaries, which again suggest that Abbott will win without a runoff, Paxton may win without a runoff, and no one can say what might happen in the contested Dem primaries. Biden’s approval numbers are lousy – it would be very nice if they bounced back a bit – Abbott’s remain bad but are better than they were in September – he may improve just because the Lege isn’t in session, that used to be the pattern for Rick Perry as well – and no one else is above water, consistent with other results. And that’s about all there is to say about this poll.

We have a third Dem candidate for AG

Welcome to the race, Rochelle Garza.

Rochelle Garza

Democrat Rochelle Garza, a former lawyer for the American Civil Liberties Union from the Rio Grande Valley, is running for attorney general after redistricting complicated her campaign to succeed retiring U.S. Rep. Filemon Vela, D-Brownsville.

Garza previously faced off against Attorney General Ken Paxton in the courts in 2017 when she represented an undocumented teenager fighting to get an abortion, which she obtained after a federal appeals court ruled in her favor. Garza said protecting abortion rights is one of her top priorities.

Garza had been campaigning for Vela’s seat for months, but neighboring Rep. Vicente Gonzalez, D-McAllen, recently announced he would seek reelection in Vela’s 34th Congressional District after redistricting made his current seat more competitive for Republicans.

“Given my background, my work, I believe that this race is the right place to be,” Garza said in an interview. “I also believe that if we’re gonna change anything in Texas, it’s gonna have to come at the state level because we’ve seen the damage that the governor, lieutenant governor and attorney general have done to this state and the harm they’ve done to the people.”

“Obviously, I believe Congressman Gonzalez is going to continue to provide good representation to the people of South Texas,” Garza added, “but my fight is gonna be statewide and my fight is gonna be for the people of Texas.”

Garza is launching her attorney general campaign with the support of both Gonzalez and Vela, who said in a statement, “We can trust Rochelle to never forget where she came from and never stop fighting for us.”

Garza joins a Democratic primary for attorney general that already includes at least two candidates: Joe Jaworski, a Galveston lawyer and former mayor of the city, and Lee Merritt, the nationally known civil rights attorney from the Dallas area. The primary is slated for March 1.

[…]

Garza’s campaign is highlighting how she is the only woman and Latina running for attorney general — relevant given that some Democratic groups have been pressing for a more diverse slate of statewide candidates. Last month, Progress Texas and Annie’s List issued a call for more progressive women to run statewide.

Garza had raised about $200K for her now-ended Congressional campaign. I don’t know what the rules are for using that in a state race. I’ve said before that I know Joe Jaworski, and I’ll say again that I’ll be happy with any of these candidates as Ken Paxton’s opponent. It’s not just that the bar to clear to be better than Ken Paxton is several feet belowground, it’s that all three of these candidates are well qualified and would be an infinite step up. Stace has more.

Meanwhile, in Congressional action:

Democrats in the Rio Grande Valley are scrambling to make up for lost time after U.S. Rep. Vicente Gonzalez, D-McAllen, decided to seek reelection in a different district, leaving an open seat in what is expected to be the state’s most competitive congressional race next year.

With less than a month and a half until the candidate filing deadline, Democrats are sorting through their options for a primary that had been an afterthought given the perception Gonzalez would remain in the 15th Congressional District.

[…]

At least two Democrats declared for the 15th District as it became increasingly anticipated that Gonzalez would bail on a reelection bid there, but recruitment is only just beginning.

Civic engagement group LUPE Votes is launching on Monday what it describes as a “people-powered nomination process” — called We the Pueblo — to find a candidate the political organization can champion. The group, whose priorities include Medicare for All and a $15-per-hour minimum wage, is inviting people in the 15th District to nominate someone who “shares the values of working Texans,” said Dani Marrero Hi, a spokesperson for LUPE Votes. She said the group is looking for someone intimately familiar with those struggles and not “from the top 1% of the Valley.”

“We’re tired of establishment Democrats making promises after promises every year, then leaving or abandoning the district, like Vicente Gonzalez is doing, when times get tough,” Marrero Hi said. “When they do that … it leaves our region vulnerable to Republicans to come in and write our story.”

[…]

The clock is ticking. While litigation over the new maps could postpone the primary, the secretary of state’s office confirmed last week that the filing period is still set to begin Nov. 13 and end Dec. 13.

Daniel Diaz, LUPE’s organizing director, acknowledged their efforts are “gonna have to move pretty fast.” LUPE Votes plans to keep its nomination process open for 20 days.

The Democratic field for the 15th District includes at least two candidates so far: Ruben Ramirez, who previously ran for the seat in 2016, and Eliza Alvarado, director of partnerships and career pathways at the Region One Education Service Center, which assists public school districts in Rio Grande Valley and other parts of South Texas. She previously worked for Gonzalez’s predecessor in the 15th District, former Rep. Rubén Hinojosa, D-Edinburg.

In an interview Friday, Alvarado said the 2020 results were a “call to action” and that Democrats were “absolutely” playing catch-up due to Gonzalez’s decision.

“I think that we knew it was coming, but that didn’t mean that we were sure that was going to happen,” Alvarado said. “Definitely stepping up and having to make up for lost time is something that’s going to be really important. I hope this race draws attention from the national party … and the state party, and they put funds into this race because it’s really important. Hidalgo County has been the Democratic stronghold since the 1800s, and this is something that’s not going to be given up lightly.”

See here for some background. I might have liked to see Rochelle Garza choose to run in CD15 instead, but I don’t get to make that decision. I don’t have any insight into this race or who the best person for it might be, I just agree with the assessment that we better figure it out quickly. This is going to be a top national race whether we like it or not.

Hispanic Policy Foundation poll: Abbott 44, Beto 43

At long last, some new polling data, and this one is eye-catching.

A year before they could meet in a showdown for the state’s top office, Gov. Greg Abbott and expected Democratic challenger Beto O’Rourke are virtually tied, according to new polling from the Texas Hispanic Policy Foundation (TxHPF).

The poll shows Republican Abbott leading O’Rourke, 44% to 43% among voters who went to the polls in 2020, with the rest of respondents unsure or supporting minor-party candidates. The race is virtually unchanged if actor Matthew McConaughey, whose name has come up in gubernatorial-race speculation, appears on the ballot as an Independent candidate.

Among all registered voters, Abbott is the choice of 43% and O’Rourke of 42%, with 12% unsure of whom they would vote for and 3% choosing minor party candidates. The results remain nearly identical if the population is restricted to 2020 presidential election voters, with Abbott preferred by 44% and O’Rourke by 43%, with 10% unsure and 3% supporting minor party candidates.

O’Rourke, a former Congressman from El Paso who previously ran for president and for a seat in the U.S. Senate, has not formally announced his candidacy for governor but is widely expected to run.

The poll found that 49% of Hispanic respondents favor O’Rourke and 31% favor Abbott. Hispanics who are evangelical Protestants are more likely to vote for Abbott (42%) than O’Rourke (37%), while Catholic Hispanics and non-religious Hispanics overwhelmingly favor O’Rourke (56% and 46%) over Abbott (29% and 28%).

Before taking on the Democratic nominee, Abbott must make it through a competitive Republican primary. The new polling shows the two-term governor with an overwhelming lead in the GOP race: Abbott is ahead of his next-closest rival, former state Republican Party Chairman Allen West, by 51 percentage points, with 64% of the most likely GOP primary voters intending to vote for Abbott compared to 13% for West.

“Governor Abbott has shored up his right flank and stands firmly on solid ground with Republican primary voters,” said Jason Villalba, Chairman and CEO of the TxHPF. “But based on our data, it appears that he has achieved this objective by cutting deeply into his support with Texans who vote in the general election. Much can happen over the course of the year, but these numbers show that not only can we expect a competitive general election, but that Abbott’s shift to the hard right may have imperiled his governorship.”

[…]

The TxHPF has previously established its credibility in measuring public opinion in Texas. In August 2020, the TxHPF was the first major research organization to forecast that then-President Donald Trump was running relatively well among Texas Hispanics. Those survey results proved to be strikingly accurate on Election Night 2020, when Trump performed stronger than previous Republican candidates in heavily Hispanic regions of the state.

For the survey 1,402 respondents were interviewed online between October 14 and 27, with a margin of error of +/- 2.6%.

The data they provide can be found here – it doesn’t provide the individual questions or the totals for each, so make of it what you will. The topline numbers are the Abbott/Beto number, which has Abbott up 44-43, and a three-way race that includes Matthew McConaughey as an independent, which goes 40/37/9, a much less sexy result that those idiot polls that had Abbott versus McConaughey straight up without ever acknowledging that the only way that could happen is if our boy ran in and won the Democratic primary first.

As far as I can tell, the last straight up horse-race poll result we have is from September, in which Abbott led 42-37. Both that one and the other most recent result, from July, which had Abbott leading Beto 45-33, are from the DMN/UT-Tyler series that included those dumb Abbott/McC matchups. Since then what we’ve had is multiple polls that have highlighted Abbott’s declining approval rating, but basically no other election polls. I have to assume that Beto will indeed make official his candidacy, at which point I suspect we’ll get all the polling we can handle.

The one thing this poll doesn’t have that I would have liked to have seen was an approval rating for President Biden, which has also tanked since late spring, matching the national trend. This poll does a very nice job of taking a closer look at Latino response to Abbott and Beto, and boy would it have been cool to see those same questions about Biden and maybe even that other guy, to perhaps provide some extra context about the last election and what we might see this time around. Alas.

They also polled the primaries, with Abbott well in the lead and Ken Paxton just above fifty percent, thanks mostly I’d say to none of the other candidates being remotely well known to the voters. Same for the Ag Commissioner race, and the Dem primaries for Lite Guv and Attorney General, which is now out of date anyway. Primary polling is a lot harder to do, and the fact that many candidates aren’t well known doesn’t help. I’d say Abbott is in good shape to win without a runoff, Paxton may be able to avoid a runoff, and the rest isn’t worth worrying about.

As always, this is one poll, so don’t put too much weight on it. I do think we’ll start to see more results, and once that happens I’ll add a new widget on the sidebar to track them all. That has sure come in handy for me when I’ve had to trawl through the archives here to provide comparisons to past numbers. Let’s get this thing on the road already. The Texas Signal and the Chron have more.

Here comes the library police

Hide your children, and your copies of forbidden books.

Warning: This book may warp tiny, fragile minds

A Republican state lawmaker has launched an investigation into Texas school districts over the type of books they have, particularly if they pertain to race or sexuality or “make students feel discomfort.”

State Rep. Matt Krause, in his role as chair of the House Committee on General Investigating, notified the Texas Education Agency that he is “initiating an inquiry into Texas school district content,” according to an Oct. 25 letter obtained by The Texas Tribune.

Krause’s letter provides a 16-page list of about 850 book titles and asks the districts if they have these books, how many copies they have and how much money they spent on the books.

His list of titles includes bestsellers and award winners alike, from the 1967 Pulitzer Prize-winning novel “The Confessions of Nat Turner” by William Styron and “Between the World and Me” by Ta-Nehisi Coates to last year’s book club favorites: “Hood Feminism: Notes from the Women that a Movement Forgot” by Mikki Kendall and Isabel Wilkerson’s “Caste: The Origins of Our Discontents.”

But race is not the only thing on the committee chair’s list. Other listed books Krause wants school districts to account for are about teen pregnancy, abortion and homosexuality, including “LGBT Families” by Leanne K. Currie-McGhee, “The Letter Q: Queer Writers’ Notes to their Younger Selves” edited by Sarah Moon, and Michael J. Basso’s “The Underground Guide to Teenage Sexuality: An Essential Handbook for Today’s Teens and Parents.”

Krause, a Fort Worth lawmaker and founding member of the House Freedom Caucus, is running for state attorney general against Ken Paxton. Krause declined to comment and no explanation was given as to how these books were chosen.

Krause sent notice of the investigation to Lily Laux, the Texas Education Agency deputy commissioner of school programs, as well as some Texas school superintendents. His letter did not specify which school districts Krause was investigating.

[…]

School officials have until Nov. 12 to respond. It is unclear what will happen to the districts that have such books.

The letter did not give a specific reason that Krause was launching the investigation, only that “the committee may initiate inquiries concerning any ‘matter the committee considers necessary for the information of the legislature or for the welfare and protection of state citizens.’”

State Rep. Victoria Neave, D-Dallas, who is vice chair of the committee, said she had no idea Krause was launching the investigation but believes it’s a campaign tactic. She found out about the letter after a school in her district notified her.

“His letter is reflective of the Republican Party’s attempt to dilute the voice of people of color,” she said.

Neave said she doesn’t know what Krause is trying to do but will investigate the motive and next steps.

I mean, this is obviously one part “critical race theory” bullshit, and one part Matt Krause jumping up and down and shouting “Look at me! I’m some guy you’ve never heard of but I’m running for Attorney General so please please please pay attention to me!” I’m sure that the seething masses of the Republican primary electorate, the most delicate and catered-group group of snowflakes that ever demanded special treatment, will be glad to hear it, if they ever do hear of it. In the meantime, school officials can add one more task to their ever-growing list of Shit I Don’t Need To Be Doing Right Now. God bless Texas.

Third Court rejects Paxton attempt to kill whistleblower lawsuit

Good.

Best mugshot ever

A state appeals court found Thursday that former deputies of Attorney General Ken Paxton who were fired after accusing the Republican official of abusing his office are protected under the state’s whistleblower law, allowing their lawsuit against Paxton to proceed.

Paxton’s lawyers had argued in court that he’s exempt from the Texas Whistleblower Act because he’s an elected official, not a public employee. But the court upheld a previous lower court decision that denied Paxton’s attempt to dismiss the case.

In its opinion, Texas’ 3rd Court of Appeals rejected the attorney general’s interpretation of the Texas Whistleblower Act, “which would have the effect of stripping whistleblower protections from employees who might report misconduct by the thousands of elected officials throughout the State — particularly by those who direct and lead the agencies of this State.”

[…]

In its opinion, the court wrote that the former employees “sufficiently alleged illegal conduct by their employing governmental entity as contemplated by the Act” and disagreed with Paxton’s characterization of the whistleblower law, writing that while “Texas is an employment-at-will state,” the act “provides an exception to that general rule.”

“Although loyalty and confident are important considerations in employment matters,” it wrote, “the Act provides that a State employer cannot fire an employee because he reports illegal conduct by the employer, even when it is that act of reporting that causes the employer to lose confidence or feel the employee lacks loyalty.”

See here for the previous update, and here for a copy of the ruling. The justices seemed pretty skeptical of Paxton’s argument at the hearing, so this is no surprise. Paxton could ask for an en banc hearing or he could appeal to the Supreme Court. The former means another couple of months that the lawsuit is on ice, but the odds of success are low. The latter is more likely to get a favorable ruling for Paxton, but if he loses he’s out of options and we move on to the next phase. I’m guessing he would rather avoid discovery, because it seems very likely that a weasel like Paxton has stuff to hide, so we’ll see if he decides to draw it out or not. Maybe, if we’re very lucky, we’re a step closer to Ken Paxton facing a bit of accountability for once in his life. The Chron has more.

The “abortion bans are good for interstate commerce, actually” defense

I can never tell when Ken Paxton is trolling or sincere.

In briefs filed Wednesday in the Justice Department’s challenge to Texas’ abortion ban, Texas Attorney General Ken Paxton touted the trips Texas women are making out of state to obtain abortions as a point in his favor in defending the law.

Paxton was addressing an argument that the Biden administration had made for why it should be allowed to challenge the six-week abortion ban in federal court. The Justice Department said that the way the ban affects interstate commerce gives the United States the authority to bring a lawsuit challenging it.

Paxton shot back on Wednesday in his brief by arguing that the Justice Department did not cite any “actual evidence that the Texas Heartbeat Act burdens interstate commerce.”

“What evidence that does exist in the record suggests that, if anything, the Act is stimulating rather than obstructing interstate travel,” Paxton said, pointing to an increase in Texas women seeking to travel to Kansas and Oklahoma to obtain the procedure.

In an earlier court filing, the leader of the clinic organization Trust Women told a court that call volume for appointments at its clinics in Kansas and Oklahoma had doubled, and a significant portion of those patients were from Texas.

“About two-thirds of our [Oklahoma City clinic] patient appointment calls now come from Texas patients seeking abortions that are unavailable throughout their home state,” the provider said, noting that typically only a quarter of the clinic’s patients are from Texas. In Kansas, where in 2019 only 25 abortion patients were from Texas, approximately half of the calls to its Wichita clinic are now coming from Texas patients, according to the filing.

That’s not how I have understood the Justice Department’s case, but what do I know? Ken Paxton is a ninth-level legal ninja and we must bow before his superior wisdom.

Be that as it may, yesterday was the hearing for the motion for an injunction against SB8, which we have all been waiting for:

A federal judge Friday expressed doubt about Texas officials’ argument that the state’s virtual ban on abortion is constitutional and must stay in effect while the courts determine whether it violates the right to access the procedure.

Lawyers for the state say the law is immune from being temporarily blocked in the meantime because it is enforced by civilians who sue over violations, not the state.

“If the state is so confident in the constitutionality of the limitations on women’s access to abortion, then why did it go to such great lengths to create this very unusual private cause of action rather than simply doing it directly?” U.S. District Judge Robert Pitman asked Texas’ attorneys. “If the state had done this directly, would you still defend the constitutionality of these limitations on their merits?”

After a three-hour hearing, Pitman did not give a timeline for when he would rule on the Justice Department’s request to halt the law temporarily while its lawsuit is ongoing. Texas has indicated in court filings that it will immediately appeal any temporary block placed on the law.

“I will give careful consideration to very important issues that you have raised and argued, and we will get to work on the appropriate order in this case,” said Pitman, an Obama appointee.

[…]

The Justice Department filed the suit last month after the U.S. Supreme Court denied an emergency request to block the law as it took effect Sept. 1, citing procedural constraints because of the law’s unique construction. The high court did not weigh in on the substance of the case.

Pitman acknowledged the challenge he would face in issuing an injunction because state officials do not enforce the law.

“What would you believe that would obligate you to do, if anything?” Pitman asked Will Thompson, deputy chief for special litigation for the Texas attorney general’s office.

“Honestly, Your Honor, I’m not sure,” Thompson answered. “I think that’s part of the problem.”

The federal government is asking Pitman to specify that his order would apply to private individuals who may wish to file suits for violations of the law, Senate Bill 8, “such as by requiring Texas to post the injunction on court websites and inform all state court judges and judicial employees about the injunction.” The state has urged Pitman to be specific about who would be restricted by any order he makes, and how.

Brian Netter, a lawyer for the Justice Department, argued that the state can’t hide behind the law’s unique construction to help it “unambiguously violate” the Constitution.

“The state resorted to an unprecedented scheme of vigilante justice that was designed to scare abortion providers and others who might help women exercise their constitutional rights while skirting judicial review,” Netter said. “So far, it’s working. … Women have been left desperate, forced under sometimes harrowing circumstances to get out of Texas, if they even can.”

“The facts on the ground are quite clear and make an unambiguous case that SB 8 has already had the effect of materially diminishing the opportunity of women in Texas to exercise a constitutional right.”

Those who can travel face a difficult journey: On average, patients are traveling 650 miles each way to reach abortion clinics in the Southwest, court filings stated.

One minor, who was raped by a family member, traveled eight hours from Galveston to Oklahoma to get an abortion, the Justice Department alleges.

Another patient traveled six hours one way to get to Oklahoma by herself because she was worried that asking someone to come with her would leave that person open to a suit filed under SB 8.

Not much more to do right now but wait and hope. Zoe Tillman from Buzzfeed News has a long thread from the hearing, while law professor Leah Litman throws some water on the state’s defense. The 19th has a broader look at the legal landscape and the various cases against the “heartbeat” law, and Daily Kos has more.

Appeals court appears skeptical about Paxton’s whistleblower defense

As well they should be.

Best mugshot ever

A panel of Texas 3rd Court of Appeals justices expressed skepticism of an argument from Attorney General Ken Paxton’s lawyers on Wednesday that he is exempt from the state’s whistleblower act because he’s not a public employee and a case against him should be thrown out.

Former Paxton deputies in the Office of the Attorney General claim in a whistleblower lawsuit that they were fired for reporting alleged crimes by Paxton to law enforcement. Paxton’s lawyers are trying to get the case dismissed and asked the appeals court to throw out the case on the grounds that Paxton is not subject to the whistleblower law. A lower court denied Paxton’s motion to dismiss the case in March.

Barely a minute into oral arguments, Justice Chari L. Kelly began questioning Solicitor General Judd E. Stone II, who is representing Paxton in the suit.

“Isn’t the action of every employer at the OAG’s office an action by the employee governmental agency?” Kelly said.

Justice Gisela D. Triana questioned Stone’s argument that all elected officials are exempt from the whistleblower law and Chief Justice Darlene Byrne asked whether his interpretation would give Texas Supreme Court justices immunity from sexual harassment claims from their employees.

Stone said employees filing sexual harassment claims would have other avenues for relief outside the whistleblower law, but argued that the attorney general as an elected official cannot be sued under the law, which covers public employees, appointed officials and governmental entities.

[…]

Stone argued that barring the attorney general from firing employees when they disagree with legal positions or have lost his trust would be an infringement on the elected official’s power.

But Kelly questioned that argument and nodded to claims by the whistleblowers’ lawyers that Paxton is a public employee because he receives checks from the state and participates in its retirement system, and that he acts as the entity because he is its titular head.

“If he can go in and change any decision internally … If he truly has the power to have the last say on anything that comes out of the agency. How is he not the agency?” she asked.

Stone said the justices should interpret the law as it was written, which did not include elected officials in the text of those who can be sued on whistleblower claims.

But Joe Knight, who argued for the whistleblowers’ lawyers, blasted the idea that the Legislature wrote a statute meant to ensure public employees complied with the law and then exempted elected officials without explicitly saying so. He said the drafting of the law in such a way would be “strange and unlikely,” and said the “Legislature does not hide elephants in mouseholes.”

In briefings to the court, the whistleblowers’ lawyers said when lawmakers intend to exempt elected officials from being labeled as public employees, they do so in the text of the law. The Texas Whistleblower Act does not.

The whistleblowers’ lawyers said exempting the attorney general would rob the law of its purpose to protect public employees reporting wrongdoing by government entities.

Stone also argued in briefs that the former officials did not make the reports to law enforcement authorities required to invoke whistleblower protection, and that even if they had, they reported only potential crimes, not crimes that had actually happened.

The whistleblowers’ lawyers attacked that argument, saying their clients reported their concerns to the Travis County District Attorney’s Office, the FBI, the Texas Rangers and the attorney general’s human resources office.

The lawyers also said their clients believed Paxton had already abused his office, tampered with government records, taken bribes and obstructed justice through his interactions with Paul when they brought their concerns to law enforcement.

See here, here, and here for some background. It must be noted that all three appellate court justices are Democrats, so their opinions will carry limited weight before the Court of Criminal Appeals, no matter how ridiculous Paxton’s arguments are. That’s just how it is, I don’t make the rules. No indication when the court may rule, but the initial suit was filed last November, the motion to dismiss was denied in March, and the appeal to the Third Court was made in June, so as far as that goes, we’re moving at a decent pace.

Texas takes its potty obsession to court

Oh, brother.

Texas Attorney General Ken Paxton is suing the Biden administration over recent federal guidance issued to protect LGBTQ people in the workplace, including a directive that says employees should be allowed to use the bathrooms, locker rooms and showers that correspond with their gender identity.

The guidance also clarifies that misuse of a person’s preferred pronouns could be considered harassment in certain circumstances.

The lawsuit, filed Monday in the Northern District of Texas federal court, Paxton claims that the U.S. Equal Employment Opportunity Commission violated Title VII of the Civil Rights Act of 1964 when it issued a technical assistance document outlining the impact of a landmark U.S. Supreme Court ruling last year. That ruling prohibited employer discrimination on the basis of sexual orientation and gender identity. Title VII prohibits discrimination against employees on the basis of sex.

Defendants in the lawsuit include the EEOC, commission Chair Charlotte A. Burrows and U.S. Attorney General Merrick Garland.

The EEOC guidance, released on June 15, specifies that employers must not prohibit transgender employees from dressing in correspondence with their gender identity or using bathrooms, locker rooms or showers that are consistent with their gender identity.

In a statement, Paxton called the guidance “illegal” and an “unacceptable” attempt “to force businesses, including the State of Texas, to align with their beliefs.”

“If the Biden Administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change,” Paxton said.

In the lawsuit, Paxton also argued that the EEOC violated the First and Eleventh Amendments, as well as the Administrative Procedure Act, which specifies how government agencies issue regulations.

The EEOC said in an email on Monday that it does not comment on pending litigation, but that it will be represented by the Department of Justice, which declined to comment Monday.

For a variety of reasons, not the least of which being my searing contempt for the walking dirtbag that is Ken Paxton, it’s hard to take his nakedly political lawsuits seriously. We’ve certainly seen plenty of examples of shoddy lawyering on his part, not to mention him lying about court actions in a way that makes him look good to his knuckle-dragging base, and that always makes me think he’s in this more for the publicity (which he can get immediately) than the (often years-off) results. That said, if there’s one thing Ken Paxton is unquestionably good at, it’s picking federal judges who are likely to give him what he wants. As such, we have no choice but to take this seriously. Daily Kos has more.

The Republican AG primary just got bigger

The more, the more miserable.

Rep. Matt Krause

Attorney General Ken Paxton just got another Republican primary challenger, but this time it is someone who has been close to him for years: state Rep. Matt Krause.

The Fort Worth lawmaker and founding member of the House Freedom Caucus says he is running as the “faithful conservative fighter,” hoping to bring a similar conservative ideology to the position that Paxton is known for — but without the legal troubles that have dogged him for most of his time in office.

“I think Texas needs — and wants — an attorney general who can give his or her full focus to the job,” Krause said in an interview with The Texas Tribune.

[…]

Krause is the third serious primary opponent to announce against Paxton. The field already includes Land Commissioner George P. Bush and Eva Guzman, the former justice on the Texas Supreme Court.

Krause said he is “not sure either one of them could win a primary.”

But the most remarkable aspect of his candidacy may be that unlike Bush and Guzman, Krause has been a friend of Paxton and political ally. They served in the Legislature together from 2013-15, and Krause endorsed Paxton early in the 2014 primary for attorney general.

Whatever. Krause is the most Paxton-like of the other candidates, but as a State Rep he will have the least name recognition among them, and if you don’t think that matters in a statewide primary, you haven’t been paying attention to recent primaries. Krause doesn’t have much money – the Trib story says he had about $100K on hand in his July filing – and that’s the fastest route to getting voters to know who you are. He’s giving up a seat he won by nine points in 2020 – it was eight points in 2018, and 20 points in 2020, before Tarrant County took its big step towards Democrats – which makes me wonder if he’s not confident about his future post-redistricting. He may also just think he’s the only one that can beat Paxton, and that in turn may be a reflection of the belief that Paxton is a weak link for the Republicans.

Along those lines, and coincidentally just before Krause’s announcement, the Chron profiles the two Dems who seek to oust Paxton, or whoever does that in the Republican primary.

Two candidates are so far vying for the Democratic nomination: Joe Jaworski, 59, a mediator and former Galveston mayor, and Lee Merritt, 38, a nationally recognized civil rights attorney.

Both of the Democrats have emphasized the need to bring integrity back to the attorney general’s office. It’s a line of attack that Paxton’s Republicans challengers are putting front and center, as well.

“Of course, I was saying that before George Bush was, but I welcome his perspective,” Jaworski said. “I mean, of all offices, for Christ’s sake, the attorney general’s office needs to be above reproach.”

[…]

If elected, Jaworski said he plans to push for policies that increase voter access to the polls, support the Affordable Care Act, expand Medicaid and legalize cannabis. Jaworski, like Merritt, says the attorney general’s office is wasting tax dollars on investigating rare voter fraud cases.

“We don’t have a voter fraud problem; we have a Ken Paxton problem,” he said. “He is using this as an ideological pivot for his base and to justify whatever few prosecutions he can muster.” Jaworski said Paxton should instead be doing more to address gun violence, adding “people are actually dying in those instances.”

Both Merritt and Jaworski have said they would create a civil rights division within the office.

Merritt, though he entered the race this summer, almost a full year later than Jaworski, has wasted no time fundraising. In the last reporting period that spanned July 7 to Aug. 6, Merritt raised more than $285,000, more than any Republican in the race, including Paxton.

Over the same period, Jaworski raised about $30,000, while Bush raised about $158,000 and Guzman raised $193,000. Paxton raised about $39,000, but the incumbent maintained the most cash-on-hand by millions at last count.

Merritt rose to prominence in recent years for taking on high-profile police accountability cases and representing families of Black Americans killed by police, including George Floyd, Ahmaud Arbery, Atatiana Jefferson and Botham Jean. If elected, he would be the state’s first Black attorney general.

In 2017, online magazine The Root named Merritt the eighth-most-influential African-American between ages 18 and 45 in the U.S, three spots ahead of Beyoncé.

Having worked on criminal justice reform issues with attorneys general in other states, even Republicans such as Chris Carr of Georgia, Merritt said he could see a stark contrast between the work they were doing and what little Paxton has done.

For instance, Carr in May signed a law repealing the “citizen’s arrest” that was used as a defense in the fatal shooting of Arbery. Meanwhile, Merritt said, he sees Paxton’s office regularly allowing law enforcement to keep video evidence of police abuse of force outside of public view.

“It was that frustration of: The most basic responsibility of the attorney general is to uphold the constitution and protect life, liberty and property,” he said about his decision to jump in the race. “And we have an attorney general who has been completely asleep at the wheel, and people are dying.”

There’s more in the story about Jaworski, but he’s familiar to me, so I included more about Merritt. Both would be a vast improvement, and not just over Paxton. Who I still think is the favorite to emerge on the GOP side, almost certainly in a runoff. We’ll see what the next campaign finance reports look like.

Matthew Dowd

Not sure what to make of this.

Matthew Dowd

A little more than a week after the January 6 attack on the Capitol, Matthew Dowd announced he was leaving his job as chief political analyst with ABC News after thirteen years with the network. Freed from his talking-head obligations, Dowd could now speak out even more pointedly about what he believes to be the threat to democracy posed by Trump and his imitators. This summer, in tweets and cable interviews, the Democrat turned Republican turned Democrat has excoriated Governor Greg Abbott for a response to COVID-19 that has cost Texans lives. In a June appearance on MSNBC, Dowd said that democracy is in peril and “the only fix to this is Republicans have to lose, and lose badly, in a series of elections, and I’m willing to do whatever I can, on any day I can, to make sure that happens.”

[…]

TM: In early August you retweeted a message from University of Texas political psychologist Bethany Albertson: “It seems like TX could use a gubernatorial candidate who can stand up for voting rights and science. ASAP.” A week later you tweeted, “I will do whatever I can to defeat the GOP up and down the ballot in Texas in 2022. Literally, our values and our lives depend on it.” Are you thinking about challenging Abbott?

MD: So, here’s the best way to answer that for me. I will do whatever I can to defeat the GOP leadership and that begins with Greg Abbott, but doesn’t end with Greg Abbott. I describe Greg Abbott and Dan Patrick and Ken Paxton as craven, cruel, and crook. One’s craven. One’s cruel. And one’s a crook. And they need to go. I wish they had the gumption or wish they had the strength to resign after how much they failed the state. They won’t. So I’ll do whatever I can, in any way I can, to help in that.

I am not going to run for governor, though that doesn’t mean that I wouldn’t run for something in 2022. But I haven’t made any decision about that. I’m just trying to figure out how best I can help do this and assist the Democrats in any way I can. And I’m going to speak out for sure, and whether or not that includes running for office, we’ll see. But it wouldn’t be for governor.

TM: Explain why you’d be willing to run for another statewide office but not for governor.

MD: I think there’s people positioned that would carry that mantle better. And the other thing is, I don’t want to get in a debate in a governor’s race, which would become exceedingly high intensity, about “the former Bush guy,” “the former Republican” running.

TM: That leaves Patrick and Paxton as potential targets.

MD: I don’t want to say any more, but I’m also not a lawyer so you can take it from there.

TM: Mike Collier, who came within five points of Patrick in 2018, is seeking a rematch.

MD: Yeah, he ran last time and he ran for comptroller in 2014 and lost [to Glenn Hegar by nearly 21 percentage points]. He seems like a nice guy. That’s up to him to make the right decision and the Democratic party to make the right decision of who they want to nominate.

Dowd had briefly flirted with the idea of running for Senate in 2018 against Ted Cruz, which the interview touches on. I like Mike Collier and think he’s a pretty good foil for Dan Patrick, but if Dowd thinks he can do better – in particular, if he thinks he can raise more money and get more attention for that race – then come on in and we’ll sort it out in the primary. The main thing here is that he has the right attitude. We could use a lot more of that. Campos, who had an inkling this was coming, has more.

More on the Paxton self-exoneration report

More and more ridiculous.

Best mugshot ever

Texas Attorney General Ken Paxton’s office refuses to release the names of the authors or the taxpayer cost of the internal report published Tuesday that concluded that whistleblowers’ accusations that Paxton broke the law were unfounded.

Yet the body of the report indicates that a key author was Paxton’s top deputy, First Assistant Attorney General Brent Webster, who was hired on Oct. 5 — the same day the internal investigation was initiated and just days after seven senior officials at the agency had notified Paxton that they had reported him to law enforcement.

Webster, whose annual salary was $265,000 as of July, was hired to replace Jeff Mateer, one of the whistleblowers, who resigned Oct. 2. Webster did not respond to a request for comment Wednesday.

[…]

An AG spokesman, Alejandro Garcia, said Tuesday that the report was written by a group of lawyers who “were not involved in the underlying matters that were the subject of the report.” He did not respond to questions about why the office was declining to provide their names.

In response to an open records request by Hearst Newspapers, the attorney general’s office said it cannot calculate the cost to taxpayers of the 10-month internal investigation because the authors belong to the executive administration and do not keep timesheets. Lauren Downey, the agency’s public information coordinator, would not name the authors, saying the office did not have a list.

Under the General Appropriations Act, the state’s biennial budget, the office is required to “continue an accounting and billing system by which the costs of legal services provided to each agency may be determined.”

The internal report contains multiple references to Webster, including one instance in which Webster told the Travis County District Attorney’s office attorneys that he was conducting an investigation in an Oct. 8 email.

“General Paxton recently appointed me to be his First Assistant Attorney General,” he wrote. “One of my tasks is to collect our agency documents and other evidence to determine what has transpired internally with our agency … If you have any documents or email communications you are willing to release to me that would assist me in understanding what has transpired, I would appreciate it.”

Webster’s name also appears in annotations on various documents included in the report, and he is described at least five times in the report as someone asking questions of others at the agency or collecting information about whistleblower-related issues.

See here for the background. We’re not going to tell you who wrote this thing, we’re not going to tell you how much it cost to write it, and you’re just going to have to take our word on everything because we’ve established such a long track record of truthfulness and reliability. I think that about covers it.

Stop investigating yourself, you’ll go blind

There’s not enough snark on the Internet for this.

Best mugshot ever

Texas Attorney General Ken Paxton’s office on Tuesday released an internal report that found that Paxton did not accept bribes and did not misuse his office to benefit his friend and campaign donor Nate Paul, despite a continuing FBI investigation of the matter.

The office did not immediately respond to questions about who completed the unsigned report, or why the office handled the matter internally, rather than hiring outside investigators to avoid a possible conflict of interest.

The bribery and abuse of office accusations were made by eight of Paxton’s top aides last fall. Four of the whistleblowers have sued Paxton for retaliating against them for reporting him to law enforcement.

“The takeaway from this internal report is that, although Ken Paxton remains under active federal investigation, the people who still work for Paxton say he did nothing wrong,” the whistleblowers’ attorneys said in a joint statement. “Of course, the one-sided internal report is full of half-truths, outright lies, and glaring omissions.”

The attorneys added that it was notable that “whoever in Paxton’s office wrote this report was not willing to put their name on it.”

The “report”, if you can even call it that, is here. The only appropriate response to this is guffaws and mockery, so I’ll start with my own.

OK, fine, a little sober skepticism is all right, too.

You can read the rest yourself. Honestly, this is one of those situations where the headline to the story tells you all you need to know. Save the self-serving BS for the appellate court and quit insulting our intelligence, please. The Trib, which has quite a few details, has more.

Meet the new special session

Same as the old special session, at least at first.

It appears likely that not enough Democrats will show up for the Texas House to conduct business when a second special legislative session convenes Saturday.

Some of the more than 50 Democratic representatives who fled Texas to foil the first special session began trickling out of their Washington, D.C., hotel and heading home Friday. But 27 members have committed to staying in the nation’s capital. At the same time, Democrats were working to confirm that at least 50 members will pledge to not return to the House floor on Saturday even if they are back in Texas.

If that happens, the chamber would again be deprived of a quorum to conduct business for at least a few days. And it could set up a showdown over whether House Speaker Dade Phelan has the authority, and political will, to compel Democratic representatives in Texas to show up at the Capitol.

The ongoing absences would further delay any consideration of the 17-item agenda Gov. Greg Abbott has set for the 30-day special session, including a contentious voting bill, which Republicans have vowed to pass into law, that motivated Democrats to leave the state last month. Two-thirds of the 150 member chamber must be present to conduct business. One seat is currently vacant.

“If you’re looking for us to telegraph exactly what we’re going to do over the next couple days, we’re not going to do that at this time,” state Rep. Chris Turner, the Democratic caucus chair, said earlier in the day. “The governor would love us to do that, but we’re not going to.”

The House Democratic caucus would not confirm any details about its next move as of Friday evening after marking the last day of the first special session that was derailed after 57 members broke quorum.

The number of Democrats actually in Washington had appeared to dwindle to about 40 members over the last few days. But with 27 Democrats planning to stay behind, even some of the Democrats seen departing from their hotel in Washington on Friday indicated the House floor may not be their destination.

[…]

“If Congress is in session, we’re in session,” state Rep. Trey Martinez Fischer, D-San Antonio, said earlier in the day. “Our job is here, and we will have a significant number of members staying here and waiting day by day, engaging day by day, finishing the fight.”

Well, we’ll see. We ought to know early on what the head count is. In one of the earlier stories I saw, it was noted that the Republicans are also not quite at full strength, as some are on vacation or otherwise not available – Jake Ellzey is now in Congress, so right there they’re down one – and that means they need that many more Dems to show up to get to 100. We don’t know if Speaker Dade Phelan is going to follow through on the threat to use DPS to hunt down wayward Dems in the state and drag them to Austin. We may eventually get a quorum, but it won’t happen right away.

Later on Friday, this happened.

Twenty-two Texas House Democrats sued some of the state’s top Republican leaders in federal court in Austin late Friday, alleging that GOP officials’ efforts to bring them home for a special legislative session infringed on their constitutional rights to free speech and to petition the government for redress of grievances.

The lawsuit was filed on the final day of the first special session called by Gov. Greg Abbott — and on the eve of a second specially called legislative session — and names as defendants Abbott, House Speaker Dade Phelan and State Rep. James White.

[…]

It’s unclear why White was listed as a defendant. White said Friday night he was not aware he’d been sued or why he was named as a defendant. The lawsuit also did not use Phelan’s legal name, which is Matthew McDade Phelan.

Abbott and Phelan did not immediately have a statement on the lawsuit.

The Democrats’ attorney, Craig Anthony Washington, a former Democratic lawmaker, did not respond to a request for comment. Washington is practicing law under a probationally suspended license, according to the State Bar of Texas.

The lawsuit alleges that some Democrats are being targeted because of their race and skin color, but then provides no evidence.

It also claims the three Republican lawmakers acted together under the “color of law” to cause the harm alleged in the suit, but then points no specific harmful actions other than “public statements.” The lawsuit also says some individual plaintiffs experienced “retaliatory attacks, threats and attempts at coercion relating to the exercise of their First Amendment rights” but again does not provide specifics.

The plaintiffs listed in the case are state Reps. Senfronia Thompson, Trey Martinez Fischer, Gene Wu, Vikki Goodwin, Ron Reynolds, Eddie Rodriguez, Jon Rosenthal, Jasmine Crockett, Mary Ann Perez, Alma Allen, Christina Morales, Nicole Collier, Celia Israel, Ana-Maria Ramos, Barbara Gervin-Hawkins, Terry Meza, Donna Howard, Jarvis Johnson, Ray Lopez, Shawn Thierry, Elizabeth Campos and Gina Hinojosa.

The lawsuit alleges that the three Republican lawmakers have attempted “by public statements and otherwise, to attempt to deny, coerce, threaten, intimidate, and prevent” the Democrats and their constituents from voting in all elections, petitioning the government for redress of grievances, speaking publicly about their constitutional rights, exercising their right of association and their right to not being arrested without probable cause. The Democrats allege that in acting together, the defendants engaged in a conspiracy to deprive them of their constitutional rights.

Because of the defendant’s actions, the complaint alleges, the plaintiffs have been “deprived of liberty for substantial periods of time, suffered much anxiety and distress over separation from their families, and much discomfort and embarrassment.” They also have suffered damages to their reputations and have had to spend time traveling to Washington to lobby Congress to pass laws that would protect voting rights.

That sounds pretty unlikely to me, even without the issues noted for attorney Craig Washington. You can read a copy of the lawsuit and come to your own conclusions, but this seems like an extreme longshot. And as to why Rep. White was named as a defendant, my guess is it stemmed from his request for an AG opinion suggesting that the quorum-breaking Dems had “vacated” their seats. Even if you could count on Ken Paxton’s office to give an honest answer, that seems like a big escalation of the stakes.

And in other desperation moves, there’s this.

Texas Republican leaders said Friday they were extending “an additional month of funding” for the Legislature as a deadline to reinstate those dollars vetoed by Gov. Greg Abbott nears, which could cost some 2,100 state workers their salaries and benefits.

The announcement Friday by Abbott, Lt. Gov. Dan Patrick and House Speaker Dade Phelan comes a day ahead of the beginning of a second special session, where it’s still unknown whether enough state lawmakers in the lower chamber will convene in time to restore the funding long term.

[…]

Citing an emergency, the Legislative Budget Board requested the transfer of funds, according to a memo dated Aug. 6 from Abbott responding to the LBB’s proposal. Funds amounting to at least $12.6 million will be transferred from the Texas Department of Criminal Justice to the Senate, the House, and legislative agencies such as the LBB, the Legislative Council and the Legislative Reference Library.

Abbott referenced his veto in that memo, reiterating his position that “funding should not be provided for those who quit their jobs early and leave the state with unfinished business, exposing taxpayers to higher costs for additional legislative sessions.”

“However, in order to ensure the Legislature is fully resourced to do the work of the next special session,” he wrote, “I recognize that the partial restoration the Legislative Budget Board had proposed is necessary.”

The extension announced Friday means that those legislative employees and legislative agencies will have funding intact through Sept. 30 instead of Sept. 1, when the next two-year state budget takes effect.

I thought the LBB could only meet when the Lege was not in session, which is certainly was on Friday. If this is all it took, then why not act sooner? And why not free up more money? This has the feel of something half-baked, though I suppose if no one challenges it in court there’s nothing to stop it. And hey, even if someone does challenge it in court, the Supreme Court will just sit on it until the matter becomes moot anyway, so what difference does it make? We’re off to a roaring start here, that’s for sure.

Another ruling to allow whistleblower lawsuit against Paxton to proceed

So much for all the lawyers to do.

Best mugshot ever

A state judge has rejected a bid to dismiss a whistleblower lawsuit filed by four former executives at Attorney General Ken Paxton’s office who said they were fired in retaliation after accusing their boss of misconduct.

In a brief order issued Tuesday evening, state District Judge Amy Clark Meachum gave no reasons for allowing the lawsuit to continue.

Shortly after the ruling, however, the attorney general’s office notified Meachum that it had filed an appeal, halting further action on the case, including a planned April 5 hearing on a request by two of the whistleblowers to be reinstated to their jobs.

[…]

During a March 1 hearing on the motion to dismiss, Bill Helfand, an outside lawyer hired to defend the attorney general’s office, argued that there was no basis to sue because Paxton was allowed to fire the employees for any reason.

“Texas employees of any elected official always serve at the pleasure of the elected official,” Helfand told Meachum.

[…]

Meachum’s ruling on the motion to dismiss was delayed by an earlier appeal from Helfand, who objected when Meachum called a second hearing on March 1 — to consider whether to reinstate the jobs of two whistleblowers — without ruling on his motion to dismiss.

Helfand argued that no further action could be taken until his motion was ruled upon because it questioned whether Meachum had jurisdiction to hear the lawsuit. Meachum disagreed, held the second hearing, heard from two witnesses and recessed the hearing for the night, but her plans to resume March 2 were blocked by the 3rd Court of Appeals while it considered Helfand’s appeal.

The appeals court rejected that appeal on March 12, leading to Meachum’s ruling Tuesday.

See here and here for some background. I’m honestly a little confused by what that “April 5” hearing was supposed to be about. Clearly, I’ve missed a story or two along the way, but the gist appears to be that there was a motion to dismiss by Paxton and a motion to reinstate two of the fired employees that Paxton objected to, and along the way there have been rulings and appeals and now here we are. According to Chuck Lindell, the 3rd Court of Appeals will have a hearing on September 22, presumably to consider the ruling that the lawsuit can proceed. Maybe it will be more clear at that time. Mark your calendars and we’ll see.

Paxton “wins” Trump endorsement

Play stupid games, win stupid prizes.

Sure to be a collectors item

Former President Donald Trump has backed Attorney General Ken Paxton for reelection, passing over primary challenger George P. Bush in bestowing the highly sought-after endorsement.

“It is going to take a PATRIOT like Ken Paxton to advance America First policies in order to Make America Great Again,” Trump said in a statement Monday evening. “Ken has my Complete and Total Endorsement for another term as Attorney General of Texas. He is a true Texan who will keep Texas safe—and will never let you down!”

Trump has teased an endorsement in the primary ever since the days before Bush, the land commissioner, announced he was challenging Paxton. Eva Guzman, the former state Supreme Court justice, has since launched a primary bid against Paxton as well.

But the hunt for Trump’s endorsement had centered intensely on Paxton and Bush, who was the only prominent member of his famous political family to support Trump in the 2016 election. Paxton had expressed confidence that Trump’s endorsement would eventually come through for him, while Bush talked multiple times with Trump about the race and met with him earlier this month at his Bedminster club in New Jersey.

[…]

Bush made little secret that he badly wanted Trump’s endorsement. His campaign played up 2019 comments in which Trump said the land commissioner was “the only Bush that got it right.”

Minutes after Trump released his Paxton endorsement, Bush appeared to respond on Twitter by reiterating the incumbent’s legal troubles.

See here for some background. I think we know what the “P” stands for now. The Chron has more.

P Bush slightly outraises Paxton

Meh.

Land Commissioner George P. Bush kicked off his attorney general campaign by outraising the incumbent, fellow Republican Ken Paxton, and another primary challenger, former Texas Supreme Court Justice Eva Guzman. But Paxton has more money saved up for the battle than both of his opponents.

According to campaign finance reports released Friday, Bush raised $2.3 million over the last 10 days of June, while Paxton took in $1.8 million and Guzman collected $1.1 million. The campaigns had announced those figures earlier in the week, making clear Bush would be the fundraising leader for the period.

The filings that came out Friday, though, showed Paxton with a clear cash-on-hand advantage — $6.8 million in reserves. Bush reported $2.7 million in cash on hand, while Guzman disclosed $611,000.

[…]

In the GOP primary for attorney general, Paxton’s top donors included the Republican Attorneys General Association and Midland oilman Douglas Scharbauer. Each donated $250,000.

Bush got some of his biggest contributions in installments of $100,000 each from Dallas oil mogul Trevor Rees-Jones, Woodlands lawyer Arnulfo Eduardo Treviño Garza and H.H. ‘Tripp’ Wommack Ill, the CEO of a Midland oilfield services company.

Guzman’s donor list was led by Texans for Lawsuit Reform, the tort reform group that backed her quickly after she launched her bid. She got $200,000 from TLR, as well as $100,000 from its founder, Dick Weekley.

On the Democratic side of the race, the candidates include Joe Jaworski, a Galveston lawyer and former mayor of the city, and Lee Merritt, the well-known civil rights attorney from North Texas.

Jaworski raised $452,000 during the first half of the year, according to his latest TEC filing, and ended the period with a balance of $525,000. Merritt did not officially announce his campaign until Tuesday — after the period covered by the latest reports — though he has had a TEC account open since early June and reported $100,000 in donations from Real Justice PAC, a national group that mainly works to elect progressive prosecutors at the local level.

See here for some background. It’s better to outraise than to be outraised, but 1) the difference isn’t that much, 2) as noted, Paxton still has a lot more cash, and 3) nobody has nearly enough to make a big splash in our super expensive state. Bush and Paxton each held their own, no one landed a heavy blow, and Guzman still has to prove she can bring it. As for the Dems, as long as Paxton is in the race they get the benefit of being Not Ken Paxton. It will be nice for them to bring in more, but as with Presidential years it’s the top of the ticket that drives most of the action.

The DACA ruling

Ugh.

Best mugshot ever

A federal judge in Texas ruled Friday that Deferred Action for Childhood Arrivals, a program that allows certain immigrants to temporarily avoid deportation and receive renewable work permits, is illegal and ordered the Biden administration to stop granting new applications.

Judge Andrew Hanen’s order won’t affect current DACA recipients who have the two-year renewable work permits.

“[T]hese rulings do not resolve the issue of the hundreds of thousands of DACA recipients and others who have relied upon this program for almost a decade,” Hanen’s order says. “That reliance has not diminished and may, in fact, have increased over time.”

The ruling stems from a 2018 lawsuit filed by Texas Attorney General Ken Paxton and eight other states against the federal argument. The complaint argues that Texas and the other states face irreparable harm because they bear extra costs from providing health care, education and law enforcement protection to DACA recipients.

Across the country there are more than 600,000 DACA recipients, including 101,970 in Texas, which has the second most DACA recipients in the country after California, according to U.S. Citizenship and Immigration Services.

In 2012, the Obama administration created the program to allow immigrants who were brought to the country illegally to be able to temporarily avoid deportation, work legally and pay taxes.

Hanen said the Obama administration did not use the right legal procedure to create the program, making it illegal.

The program has survived previous court rulings. But the Trump administration had put an end to the program before a U.S. Supreme Court ruling a year ago allowed the federal government to continue it.

The latest ruling will prevent the approval of at least 50,000 new DACA applicants nationwide who applied earlier this year but were not approved before Friday’s ruling, based on USCIS statistics.

There’s a lot of backstory to this, as the original threat of litigation came in 2017. See here, here, here, here, here, here, and here for previous blogging.

What we know at this point: The ruling will be appealed, and I think there’s a decent chance that it is put on hold pending appeals. It will still have a negative effect on a lot of people, many of whom have been in a state of limbo already for a decade or more. There’s a good argument that Judge Hanen’s ruling is erroneous, and thus could be overturned. But really, this is now a super duper way-past-due emergency for the Democrats to fix legislatively while they can. The filibuster is the reason the DREAM Act of 2010 (which had I believe 55 votes in favor) didn’t pass – it’s a bit misleading even to say it had “55 votes in favor”, because that was 55 votes to suspend debate and allow for a vote; it never actually got an up-or-down vote on the Senate floor – and we cannot let it be the reason it fails again. There’s talk of including a new DREAM Act in the infrastructure bill that will be passed by reconciliation. It’s ludicrous that we have to resort to such legerdemain to pass a bill that has majority support, but ultimately I don’t care as long as the damn thing passes.

And finally, another thing we have known for a long time is that Ken Paxton has gotta go. Electing Justin Nelson in 2018 would not have stopped this lawsuit – it had already been heard by Election Day that year, and as noted there were eight other states as plaintiffs – but that’s beside the point. Dumping Ken Paxton’s felonious ass will go a long way towards preventing other bad things from happening. In the short term, though: The DREAM Act has got to pass. No excuses, no other way out. Stace has more.

P Bush files a Paxton-style lawsuit

What a wannabe.

Texas Land Commissioner George P. Bush has filed a lawsuit against the Biden administration, claiming the president is illegally preventing the construction of a wall on the Texas-Mexico border.

Bush announced the lawsuit Wednesday, saying his office is suing Biden and Department of Homeland Security Secretary Alejandro Mayorkas “on grounds that (the Biden administration) is illegally preventing the border wall from being constructed.”

“The issue here is simple — no man is above the law. And that includes President Biden,” Bush said.

[…]

The complaint by Bush, filed in U.S. District Court in McAllen on Tuesday, argues that between 2018 and 2021, Congress approved $5 billion for the construction of barriers along the U.S.-Mexico border and Biden had no legal right to halt construction on the project.

On Inauguration Day, Biden issued an executive order calling the border wall a “waste of money” and saying that it was “not a serious policy solution.”

The complaint asks federal judge Ricardo H. Hinojosa to rule Biden’s order illegal and to stop Mayorkas from diverting the funds earmarked for the wall to other uses.

“This lawsuit is not about whether border walls are effective. It is about whether a President may unilaterally override these duly enacted appropriations bills to fulfill a campaign promise,” the lawsuit says.

It’s about more than that, I think we can all agree. I have no idea what if any merits there are to this suit – I couldn’t find any legal analysis in the stories I found while googling around. I suspect that the political mission has been accomplished, and that’s what really matters. We’ll see about the rest.

Eva Guzman raises a few bucks

It’s not bad, but she’s gonna need a lot more than this.

Eva Guzman, one of the 2022 Republican primary challengers to Attorney General Ken Paxton, raised more than $1 million in her first 10 days as an announced candidate— and has garnered the support of some of the state’s top GOP donors, according to her campaign.

Guzman, a former Texas Supreme Court justice, raised $1,051,723 between when she declared her campaign on June 21 and the end of the fundraising period on June 30. Perhaps more notably, though, are the donors who fueled the haul and are backing her against the incumbent, who also faces a primary challenge from Land Commissioner George P. Bush.

According to a list provided by the Guzman campaign, she has gotten support from top Texas GOP contributors including Dallas real estate developer Harlan Crow, Dallas billionaire businessman Robert Rowling, Dallas investor Tom Hicks Sr. and El Paso developers Woody Hunt and Paul Foster. Other names include Drayton McLane, Jan Duncan and Dick Weekley, whose influential tort-reform group, Texans for Lawsuit Reform, quickly endorsed Guzman after she announced her campaign.

The list of supporters also includes Harriet Miers, the White House counsel under former President George W. Bush, George P. Bush’s uncle.

[…]

But Paxton still maintains support among major Texas GOP donors. The host committee for a recent Paxton fundraiser in Dallas included heavyweight names such as textiles mogul Arun Agarwal, hotelier Monty Bennett and biotechnology entrepreneur Darwin Deason.

And Guzman starts the primary as the underdog, at least according to one recent survey. In the Dallas Morning News/UT-Tyler Poll from late June, Guzman registered a distant third in the primary, getting 4% of the vote to 34% for Bush and 42% for Paxton.

Raising a million bucks over ten days is definitely better than raising less than a million bucks over ten days. It’s a nice, round number, which gives it some cachet. But look, Paxton had over $5.5 million on hand as of his January report (neither he nor P Bush have pre-announced their June totals yet); Guzman had $133K in her Supreme Court SPAC treasury in January. He won’t be out-fundraised, and as we have discussed before, both he and Bush have a large name recognition advantage on Guzman. You may not be aware of this, but Texas is a big state, with a lot of media markets, and it costs a lot of money to advertise successfully statewide. In that context, a million bucks ain’t much. Also, a million bucks from a handful of moneybag donors is not the same as a million bucks in thousands of small donations from a broad range of actual voters. Guzman has done well generating earned media, and I’m sure some number of Republicans are looking for an alternative to their scandal machine of an AG. She’s got a long road ahead of her, that’s all I’m saying.

Paxton agrees to unblock Twitter critics

Our long national nightmare is over.

Best mugshot ever

Texas Attorney General Ken Paxton will no longer block ​users from his personal account for expressing “First Amendment-protected viewpoints” as part of an agreement to end a lawsuit where plaintiffs say they were unconstitutionally blocked for criticizing him or his policies on the platform, according to a filing late Friday in a federal court in Austin.

Paxton had already unblocked the named plaintiffs of the lawsuit in May, a month after the lawsuit was filed, but the latest filing confirmed he has now unblocked any other accounts. The ACLU of Texas, a freedom of speech organization that represented the plaintiffs in the lawsuit along with the Knight First Amendment Institute at Columbia University called the agreement “an important victory for Texans’ First Amendment rights.”

“We’re pleased that Attorney General Paxton has agreed to stop blocking people from his Twitter account simply because he doesn’t like what they have to say,” Katie Fallow, a senior staff attorney at the Knight First Amendment Institute, said in a prepared statement. “Multiple courts have recognized that government officials who use their social media accounts for official purposes violate the First Amendment if they block people from those accounts on the basis of viewpoint. What Paxton was doing was unconstitutional.”

See here and here for the background. Statements from the ACLU of Texas and Knight First Amendment Institute have the remaining details. Paxton had already agreed to unblock the nine plaintiffs, and the law was clearly against him, so this was the only way out for him that didn’t involve getting slam-dunked by a federal judge. It’s a molehill in the grand scheme of things, but nowadays we should celebrate any time the rules are made to apply to schmucks like Paxton.

Lee Merritt officially joins the AG race

We now have a contested Democratic primary for Attorney General.

Lee Merritt

Lee Merritt, the nationally known civil rights attorney, is officially running for Texas attorney general as a Democrat.

Merritt is set to launch his campaign at a 9 a.m. news conference outside the Texas Capitol in Austin, with an emphasis on the voting rights battle that prompted state House Democrats to flee the state Monday.

“Texas Republicans have launched an all-out assault on voter rights and civil liberties,” Merritt said in a statement, adding that incumbent Attorney General Ken Paxton and other GOP leaders are “blatantly attempting to turn back progress in the Lone Star State using the familiar tactics of voter suppression, divisive rhetoric and corporate money.”

“This campaign is a response from the people of Texas,” Merritt said.

[…]

In addition to voting rights, Merritt’s camapign said it would focus on “fixing Texas’ failing power grid, reigning in soaring property taxes, ending mass incarceration and challenging gubernatorial overreach.”

Merritt joins Joe Jaworski, a Galveston lawyer and former mayor of the city, in the Democratic primary against Paxton. The incumbent has his own competitive primary, featuring challenges from Land Commissioner George P. Bush and Eva Guzman, a former justice on the Texas Supreme Court.

Merritt announced his intent to run in March, with a promise to make a formal announcement later. Joe Jaworski has been in the race for awhile, and of course there’s the Republican side of things. It will be interesting to see how Democratic interest groups line up for this one. I know Jaworski, I have not yet met Merritt, but he’s got a great resume and I’m eager to hear what he has to say. It’s good to have some contested primaries among good candidates on the Democratic side, as that will generate some much-needed attention. Good luck to Lee Merritt and Joe Jaworski, and may the best candidate win.