Off the Kuff Rotating Header Image

Attorney General

More on the Denton experience with marijuana decriminalization

A long story from the Dallas Observer.

Nick Stevens stood before the Denton City Council looking equally frustrated and determined. The activist had helped to lead the grassroots charge to decriminalize marijuana in the North Texas college town. Now he was there to defend Proposition B, which more than 71% of the city’s voters had supported in a high-turnout November vote.

Stevens and other activists with the group Decriminalize Denton had fought hard to pass one of the state’s first ordinances to decriminalize low-level marijuana offenses, but they received bad news the day after the election. Denton officials announced in a Nov. 9 memo that the city “does not have the authority to implement” some of Prop B’s provisions.

Facing council members during the Feb. 21 meeting, Stevens emphasized that even if they didn’t personally like the ordinance, they should still respect the will of Denton voters.

“That’s what being a representative is all about,” Stevens said. “It’s about listening to your constituents.”

Decriminalize Denton blasted the ordeal over Prop B as an “attack on democracy” in a press release. Advocates point to other Texas cities such as Austin that have implemented near-identical measures. Voters in San Marcos, Elgin, Harker Heights and Killeen similarly approved decriminalization during the midterm elections. But others have argued that the merits of the ordinance aside, the city of Denton’s hands are tied.

Prop B would mean, in part, that police could no longer issue citations or execute arrests for misdemeanor quantities of marijuana, except under certain limited circumstances. It would also bar law enforcement from using the “smell test,” meaning the scent of weed couldn’t serve as an excuse for search or seizure.

City Manager Sara Hensley explained during the Feb. 21 work session that Denton doesn’t have the authority to implement the parts of Prop B that run afoul of state law. She noted in her presentation that from Nov. 1 to Jan. 17, local officers made 52 citations and/or arrests related to pot or paraphernalia. (Prop B advocates have asked to see the demographic makeup of this, as did the Observer, but the police department didn’t respond to the request.)

Hensley argued that the Texas Code of Criminal Procedure, which mandates that police enforce state law, essentially supersedes the proposition. Denton’s police chief further vowed that the department would continue to make minor marijuana offenses a low priority.

To Deb Armintor of Decriminalize Denton, though, hearing the number of arrests and citations was “infuriating.”

“This is what they call ‘low priority’?” Armintor, a former Denton City Council member, told the Observer. “This is business as usual.”

Another local marijuana advocate spoke at the February meeting. Eva Grecco described how she went out day after day to gather enough signatures to place Prop B on the ballot. Many seniors can’t afford to spend thousands of dollars on medications each month, she said, and marijuana is a viable alternative.

“‘The times, they are a’changing.’ I am a mother. I am a grandmother. I am a great-grandmother,” Grecco said. “I myself do not smoke marijuana, but I fought very hard for this Proposition B to pass.

Grecco also tried to appeal to the council by noting that some members are themselves parents: “The more you fight the will of the people, these are the things your children will remember in the future.

“I’m just really angry — angry that all this time has gone by and certain members of this council and city manager have refused to listen or comply with the will of the people,” she continued. “Whether you like it or not, your personal choices do not matter. We do not vote for any of you for your personal choices.”

Grecco, Stevens, Armintor and the rest of Decriminalize Denton aren’t alone in their vexation. Some of the city’s voters have reported experiencing déjà vu. The battle over Prop B in uber-conservative Texas isn’t the first time that their voices have been muted following a landslide vote.

[…]

”The progressive group Ground Game Texas partnered with advocates in Denton and other cities to help lead the decriminalization campaign. Mike Siegel, the group’s co-founder and general counsel, agrees that Prop B is enforceable. City councils in Texas often adopt ordinances that may face legal challenges, he said, but they can press on until a judge tells them otherwise.

“You can see how the city manager is disrespecting the people as policymakers, even though the Texas Constitution and the city charter of Denton guarantees the people the policy-making rule,” he said. “Because the city manager is treating the people’s vote as something less than our regular city council vote, and that’s not how it should be under the law.”

The way Siegel sees it, voters should have been advised of legal risks prior to hitting the ballot box, but afterward? “Once they voted, that should be respected like any other ordinance in the city code.”

Denton City Council member Jesse Davis said the council has known for a long time that much of the measure is incompatible with state law. Davis told the Observer that parts of the ordinance, like the budgetary provisions, can’t be enacted by referendum. “Otherwise, you’d have people voting on referendums like: The tax rate is zero, the city budget only goes to fix the streets in my neighborhood,” he said.

City council members can’t simply ignore that Texas law exists and they can’t tell the police which rules to enforce, Davis said. But members are ready to focus on what they can do moving forward instead of what they can’t.

The democratic process isn’t just polls and referenda and headcounts; it includes representative democracy, Davis said. Each city council member was elected by the people, and each took an oath to uphold the laws of the U.S. and state constitutions.

Davis said a number of his constituents have contacted him about Prop B.

“I had to have some frank conversations with them about where we fall in the hierarchy of legislation,” he said. “And I’m very frustrated by some folks out there in the community who know better, or should know better, [who are] misleading people about our role in the scheme of laws and statutes in the state of Texas.”

Davis will face a recall on May 6, the same day he’s up for reelection, after detractors circulated a petition that partly claims he’d ignored “the will of over 32,000 Dentonites” when it comes to the ordinance. He contests that assertion as “factually inaccurate” and said he’s confident that voters will cast their ballot based on his record.

See here for the background. The story mentions that this isn’t the first time that Denton activists passed a ballot referendum that ran into resistance. This is a reference to the Denton fracking ban of 2014, which was challenged in court before it was implemented and subsequently nullified by the Legislature. This case is a little different in that the ordinance was implemented but not fully, with the argument being over how much of it can be done. There isn’t litigation yet (at least not in Denton) but there is a request for an AG opinion, and I have to believe that the Lege will weigh in, given their utter hostility to local control.

Anyway. I believe both sides here are arguing in good faith. I get everyone’s frustration. Ultimately, this is a state problem, both in terms of how marijuana is handled legally and in how much ability cities have to govern themselves. The solution has to be at the state level as well. I just don’t see any other way forward, given where we are. It will not be easy. There is no easy way. I wish there were.

The Lege still doesn’t want to pay for Paxton’s whistleblower sins

Who can blame them?

A crook any way you look

Now midway through the legislative session, Paxton and state lawmakers are at a standstill, and taxpayers are caught in the middle.

Lawmakers have so far declined to include the settlement money in any budget bills, while Paxton argues that the agreement would ultimately save taxpayers from funding a lengthy court case that may end with a higher price tag.

The whistleblowers’ accusations have prompted an ongoing Department of Justice investigation of Paxton, who has denied any wrongdoing. Paxton’s office did not respond to a request for comment.

Political experts say the Legislature’s reluctance to embrace the agreement could be a tactic to pressure Paxton to either pay for the settlement himself or answer for the corruption allegations in court.

“It’s like the Legislature is telling Paxton that this is his problem to take care of,” said Brandon Rottinghaus, a political science professor at the University of Houston. “This is as close as Paxton will come to a political sanction from his party for his actions. … The party is not going to directly say that they think that he’s done wrong, but they certainly don’t want to be on the hook to foot the bill.”

Lawmakers suggested at a budget hearing last month that Paxton should use his own campaign funds to settle the case, as the state’s election laws allow. But a Paxton staffer interjected, noting that whistleblower laws hold the office accountable, not the officeholder.

[…]

As of January, Paxton had $2.3 million in his campaign war chest and $1.3 million in outstanding loans. He would have to fundraise to pay off the rest of the settlement — a “horrific” option for the attorney general, Rottinghaus said.

The whistleblowers on Wednesday requested that the Texas Supreme Court lift its temporary pause on the case. If Paxton and the whistleblowers remain at an impasse through the end of legislative session in May, they’ll all head back to court.

Chris Hilton, the general litigation division chief and a lawyer for Paxton, accused the whistleblowers on Thursday of trying to “undo the agreement by filing a misleading brief with the Texas Supreme Court, all the while coordinating with the media to create drama.”

“We’ll continue to seek a cost-efficient resolution, even while the plaintiffs needlessly drag this process out,” Hilton said.

Turner pushed back on that claim, pointing to a court filing by the attorney general’s office in which Paxton’s attorneys agreed that “should the parties prove unable to obtain funding,” they would jointly ask the Texas Supreme Court to resume the case.

“As we negotiated the formal agreement, the attorney general backtracked and would not agree to a deadline for legislative approval,” Turner said. “Anyone reading this can easily decide for themselves who is being misleading and who is dragging this process out.”

Cal Jillson, a political science professor at Southern Methodist University, said Paxton is essentially giving the Legislature an ultimatum: “‘Pay to clean up my mess, or as I stall on this set of corruption charges brought against me by my former employees, that could sum up to a great deal more than $3.3 million.’”

The only reason the attorney general’s staff knows the cost could be higher, Jillson said, “is because they intend to stretch this thing out as far as possible.”

With two months left in the legislative session, there’s still plenty of time for lawmakers to change their minds, but it’s a touchy subject.

See here for the background. I remain fine with the stance that the Lege has taken so far, however doubtful I am about their resolve. Put simply, don’t bail out Ken Paxton. I recognize that this puts a burden on the whistleblowers, who did us all a favor by coming forward like this, and I regret that they are caught in the middle. I also maintain that approving the settlement and cutting the AG’s budget by an equivalent (or greater!) amount would be fine, but I have yet to see any suggestion of that in any of these stories. Changing the law to allow Paxton to pay this with his campaign funds might be OK, and there are other ideas that could work. All I care is that no one takes Paxton off the hook. If that means the taxpayers face a bigger payout down the line, so be it. The point is that he should own it all. The Trib has more.

The whistleblowers’ un-settlement

Plot twist!

A crook any way you look

The whistleblowers who sued Attorney General Ken Paxton say they’re headed back to court unless he agrees that the Legislature must approve their proposed $3.3 million settlement before the current legislative session ends in May.

They are the four former aides to Paxton who allege he fired them in retaliation for reporting him to federal authorities for bribery and abuse of office. Paxton has denied all wrongdoing. Their lawyers said Wednesday they were “forced” to file a motion in an Austin appellate court Wednesday asking for the case to resume.

In a joint statement, the lawyers said a deadline of the end of session for payment was the “fundamental premise upon which they asked us to negotiate in the first place.”

“So we’ll go back to court, where the taxpayers will end up paying more to defend (the Office of the Attorney General) than they would to settle this case,” the lawyers said. “We would still settle the case if the Legislature approved the payment this session, but we cannot and did not agree to give OAG the benefit of a settlement while the whistleblowers wait in perpetuity for legislative approval.”

The attorney general’s office did not immediately respond to a request for comment.

Some members of the Legislature, including Texas House Speaker Dade Phelan, have expressed opposition to approving the settlement. Earlier this month, Phelan said in an interview with CBS DFW that he did not think it was a “proper use of taxpayer dollars.” Taxpayers are already on the hook for $600,000 in legal fees for Paxton’s defense.

[…]

The case now returns to the Texas Supreme Court, where it landed after Paxton appealed in December 2021 a decision by the 3rd Court of Appeals that upheld a lower court’s finding that the state’s whistleblower protection law should have prevented the employees from being fired.

The all-Republican court had not yet decided whether it would grant the case when the whistleblowers and Paxton asked them to hold off on any decisions while the parties finalized their settlement agreement. The court could decide to grant or deny at any time; it is not subject to a deadline.

In addition to the $3.3 million payment, the settlement, which the parties announced last month, would have required Paxton to remove a news release from his website that is critical of the employees. He also would have had to state in the agreement that he “accepts that plaintiffs acted in a manner that they thought was right and apologizes for referring to them as ‘rogue employees.'”

See here, here, and here for some background. The Trib adds some details.

The multimillion-dollar settlement, announced last month, would give back pay to the four former employees and would include an apology from Paxton as well as other concessions. But the agreement needs to be approved by state lawmakers, who have expressed an unwillingness to use taxpayer dollars to settle Paxton’s case. At the request of the parties in January, the Texas Supreme Court put the whistleblower case on pause while the two sides looked to finalize the deal. But without a deadline, the case could be on pause indefinitely, attorneys for the former employees said on Wednesday.

“Sadly, we have not been able to reach a final settlement because [the Office of the Attorney General] will not agree to include in the formal agreement a deadline for the legislature to approve funding this session, even though that was the fundamental premise upon which they asked us to negotiate in the first place,” the attorneys said in a statement. “So we’ll go back to court, where the taxpayers will end up paying more to defend OAG than they would to settle this case.”

Paxton’s office did not immediately respond to a request for comment. He has denied wrongdoing.

Attorneys for the former employees said they would still settle the case if lawmakers approved the $3.3 million settlement this session.

“But we cannot and did not agree to give [the Office of the Attorney General] the benefit of a settlement while the whistleblowers wait in perpetuity for legislative approval,” they wrote.

The fired employees’ attorneys have urged lawmakers to approve the settlement, but its funding looks bleak after top legislators, including House Speaker Dade Phelan, came out against the use of state funds to settle the case. The Legislature’s top budget writers did not include the settlement in their first draft of bills to resolve miscellaneous legal claims.

In a filing to the Supreme Court on Wednesday, attorneys for the former employees said the attorney general’s office has told them verbally that they have put the whistleblowers in a “gotcha position.” If lawmakers do not approve funding for the settlement by the end of this legislative session on May 29, the attorney general’s office has said the whistleblower case should remain on pause until the next legislative session in 2025. If it is not approved again, the filing reads, the attorney general’s office has said the case should remain on pause until the following session in 2027.

“And so on in perpetuity. [The Office of Attorney General] tells Respondents the case will never resume; they have given up their claims forever, even if legislative approval is not forthcoming,” the filing reads. “[The Office of Attorney General] thus reaps all benefits of a settlement, and [the former employees] achieve none.”

In written communications, the fired employees’ attorneys say Paxton’s office has been “craftier,” arguing that it is still researching what would happen if the Legislature refuses to approve the settlement and will not address that potential outcome until it happens.

The fired employees’ attorneys blasted both positions as “preposterous,” arguing that they would have never agreed to put the case on pause indefinitely or for a lengthy time period.

The motion to pause the case — which was requested, drafted and filed by the attorney general’s office with agreement by the fired employees — was “intended to briefly postpone” any potential ruling while the two sides sought legislative approval for the $3.3 million settlement. But attorneys for the fired employees say Paxton’s refusal to set a deadline is preventing the two sides from completing the settlement agreement while at the same time not letting their case against him move forward.

Couple things. First, let’s remember that SCOTx was going to rule on the question of whether Paxton could be sued at all under the Texas Whistleblower Act. Paxton had argued that he could not be sued under that law because he’s not public employee, because elected officials don’t count under that law. By asking SCOTx to resume their deliberation on that question, the four plaintiffs are risking that their answer will be to rule in Paxton’s favor and toss the lawsuit altogether. And even if they win on that question, it just means that the lawsuit can go back to a district court and be heard on its merits. Which, again, they could lose, or they could get a lesser amount awarded to them. And the whole thing will then have to go through the appeals process, because of course Paxton will fight it for as long as he’s in office, and the verdict could get overturned or the award could be reduced, and the whole thing could take years. Whatever else you may think about their case and the initial settlement, these guys are taking a substantial risk by doing this.

But you can see why they’re willing to take that risk. Paxton, who has always been able to turn a bad situation of his own making into an advantage, is using the Lege’s understandable unwillingness to pay for his sins as an indefinite stalling tactic. As things stand now, he has zero incentive to take any action. The case is frozen in amber. And even if SCOTx ultimately rules that the lawsuit can proceed, if there’s one other thing (besides criming) that Paxton is good at, it’s delaying legal reckonings. Who knows how long he could draw this out, assuming he remains in office?

All of which suggests a fairly easy way out for SCOTx, if they want to take it. They can rule that the Lege doesn’t have to apportion any money to pay the settlement, and let Paxton pay for it out of whatever budget the Lege sees fit to give him. This is of course what I have been arguing they should do, as it is the most fair and just solution at this point, so I’m a little biased. But, you know, it really is a good solution – it allows the whistleblowers to get their back pay and their apology, it guards against a much larger potential verdict while also not putting the public on the hook, and it makes Paxton bear the brunt of the financial penalty. It might damage the AG office’s ability to do its job, but that’s just too bad. This is what happens when you put a crook in charge of law enforcement. I hope SCOTx comes to the proper conclusion and saves us all a multi-year saga.

A win for butterflies

I’m sure this will end up in court, but it’s still a good thing.

The U.S. Fish and Wildlife Service on Monday declared the prostrate milkweed an endangered species and mandated new habitat protections for the plant, closing a chapter in a feud between environmentalists and those who advocate for unfettered border wall construction in South Texas.

The rare milkweed, which grows only in the Texas-Mexico borderlands, has for months been at the center of the fight between butterfly lovers and Texas officials. Texas Attorney General Ken Paxton, a Republican who supports new border wall construction, said last year that formally protecting the plant would create an “influx of illegal aliens” and endanger Texans. Environmental groups say the listing will help safeguard the charismatic migratory monarch butterfly, which has a deeply symbiotic relationship with the unassuming weed.

While the prostrate milkweed has a range of around 200 miles, only 24 populations of the species are known to still exist. Those are in Starr and Zapata counties in far South Texas, as well as in neighboring states of Nuevo León and Tamaulipas in northern Mexico.

It’s the rarest species of milkweed, and it’s a critical habitat for monarch butterflies as they head north from Mexico after the winter. Monarch caterpillars can only eat milkweed, and female monarchs only lay their eggs on milkweed. Toxic compounds in the plant, which monarchs consume, help protect the butterflies from predators and give them their signature orange hue. In turn, monarchs help pollinate and spread the plants.

Historically, the FWS said in its final rule on Monday, patches of prostrate milkweed along the Texas-Mexico border were all geographically linked. They were separated and are “very unlikely” to reconnect, the agency said, due to what it called “disturbance” in the region.

That disturbance has included herbicides, oil and gas pipelines and, most notably, border wall construction green-lit by former President Donald Trump.

The Trump administration spurred a firestorm in 2017 when it began bulldozing habitat at the National Butterfly Center in South Texas, damaging habitat used by monarchs and other species. Officials with the center said they weren’t properly notified about construction and publicly criticized the Trump administration. The situation pulled some butterfly lovers into an unlikely partisan battle, and the center was later forced to temporarily close following threats and conspiracies about human trafficking.

While Trump is no longer in office, Texas Governor Greg Abbott, a fellow Republican, has repeatedly said he also wants to build a wall. This year, he appointed a state border czar with a goal of speeding up that project.

In the process, the Texas state government became one of the biggest opponents of plans to list the prostrate milkweed as endangered, submitting multiple comments to the FWS. Among them was a comment from the state attorney general’s office warning the designation would have “a significant impact on national security by preventing Texas’s efforts to address the border crisis.” In response, the FWS said in its rule that prostrate milkweed is currently in danger of extinction and that the agency is therefore required to list the species as endangered.

[…]

The monarch butterfly has also been struggling, with population numbers dropping by 99.9% in some areas. The International Union for Conservation of Nature last year listed the monarch as endangered, citing declining milkweed populations as a factor, though federal officials have so far held off on making a similar ruling.

There are many factors behind the decline in milkweed, but one of the biggest is border wall construction, said [Tierra Curry, a senior scientist at the Center for Biological Diversity]. Even after a section of wall is constructed, there is an “ongoing disturbance” as border officials keep clear land near the wall and drive vehicles along it.

“You don’t just put up the wall and leave it there,” Curry said.

I’ve noted the plight of the monarch butterfly and the battle between Monarch conservation and the border wall before. As you might imagine, I’m happy to see this news. I’m also a hundred percent certain it will draw a lawsuit, and who knows what happens from there. I’m sure I’ll keep an eye on it. In the meantime, let’s be happy that the right thing was done. There will be plenty of time to worry about any negative consequences later.

Paxton makes his plea to the Lege

It’s more accurate to say that one of his assistants pleaded for him while he mostly sat silent, but whatever.

The only criminal involved

Days after the Texas house speaker openly opposed using taxpayer dollars to settle a whistleblower suit against Attorney General Ken Paxton’s office, a top agency lawyer said avoiding the payout would only end up costing the state more.

“It’s ultimately in the interest of the state from a financial perspective” to pay the settlement now, Assistant Attorney General Chris Hilton told a panel of House budget writers. “Financially speaking, there is no upside for the state to this case; even total vindication at trial results in a significant expenditure.”

Hilton said the agency has already racked up $600,000 in legal fees fighting the lawsuit. The agency is required to use outside lawyers in the case because of the conflict of interest, which has driven up the cost, Hilton said.

[…]

Paxton, a Republican, was present Tuesday but deferred to his team for most answers.

State Rep. Jarvis Johnson, D-Houston, asked Paxton directly whether he would use his own campaign dollars. Hilton interjected, noting that the lawsuit is against the agency, not Paxton personally.

“There is no whistleblower case where any individual has paid anything because the individual is not liable under the terms of the statute,” Hilton said. He added, “Under the terms of the settlement, there is no admission of fault or liability or wrongdoing by any party.”

Under the state’s election code, Paxton is allowed to use campaign funds to cover his legal defense. Since he was sued in his official capacity, those costs are not considered a “personal use.”

It’s a different scenario than in 2016 when Paxton wanted to use out-of-state gifts to cover his legal defense in the ongoing securities fraud case against him. The Texas Ethics Commission at the time warned Paxton he would violate the law if he used those funds because the accusations in that case did not stem from his officeholder duties.

On Thursday, state prosecutors said the Department of Justice had transferred the most recent corruption case out of the hands of federal attorneys in Texas and into the Washington-based Public Integrity Section. The reason for the shift was unclear, though Paxton’s attorneys had requested it.

Tuesday’s budget hearing was the first time Paxton has faced lawmakers since the settlement was announced. Some House members seemed resigned about their options.

Texas Rep. David Spiller, R-Jacksboro, and Rep. Steve Allison, R-San Antonio, said the state seems to lose no matter if they pay now or after a hypothetical trial concludes.

“Even if you win, there is no ‘win,’” Spiller said, referring to how the state would still owe outside lawyers.

“We’re kind of in the proverbial rock and a hard place,” Allison said.”Either we pay $3.3 million now or pay far more than that either in additional legal expenses or (because of) an unfortunate result.”

State Rep. Mary González, an El Paso Democrat who chairs the subcommittee, questioned whether Paxton is acting in the public’s interest.

She noted Paxton has declined to represent some state agencies, a key duty of his office, leaving them to pay for outside legal counsel out of their own budgets and at an additional cost for taxpayers. An ongoing case by a conservative activist against the Texas Ethics Commission, for instance, has cost the state more than $1 million.

Hilton said that occurs only in a “tiny percentage” of cases, about 60 in the last year, most of which he said were because the agencies had asked for their own counsel. Others were because the statute did not allow the office to represent an agency, Hilton said, and a smaller amount were because a case conflicted with the state’s obligation to “uphold the Constitution.”

A lot of similarity to what the whistleblowrs’s attorneys were saying, though without any reference to their quest for justice against a crook, as that would have been super awkward. I’m beginning to wonder if any member of the Legislature is going to arrive at my proposal to pay off the settlement and then cut Paxton’s budget by a commensurate amount or if I’m going to need to hire a lobbyist to explain it to them. It’s not that hard, y’all! You can do it.

The Statesman adds a few extra bits.

Hilton argued the cost to taxpayers could exceed $3.3 million if the lawsuit were to continue, in part because the case is procedurally in the early stages, although “it has been pending for a while.” He said the discovery process has yet to begin and that undertaking is lengthy, intensive and costly.

“It strikes me that we’re kind of between the proverbial rock and a hard place in that we either pay the $3.3 million now, or pay far more than that, either in additional legal expenses or an unfortunate result,” said subcommittee member Rep. David Spiller, R-Jacksboro.

[…]

When asked by lawmakers Tuesday what would happen if the Legislature does not approve the settlement payment, Hilton said it’s “difficult to predict” exactly what the next steps would be.

“Because it’s pending litigation, I don’t want to get into too many details,” Hilton said. “Under the terms of the settlement, it is contingent upon all necessary approvals.”

[…]

On Tuesday, Paxton also asked House lawmakers for additional money in the next biennium to hire more staff and to offer competitive pay.

Paxton said in recent years the agency has faced increasing turnover due to staff leaving for other state jobs that in some cases can nearly double their salaries at the attorney general’s office.

Maybe part of the problem is that Paxton is a terrible manager in addition to being the kind of corrupt boss that eight of his trusted lieutenants felt the need to sue, I dunno. My advice to the Lege for how to handle this stands. At the very least please don’t give him any more money. Surely by now we have all the evidence we need that he can’t be trusted with it.

Why should Ken Paxton’s whistleblowers suffer for his sins?

That’s the question their lawyers ask in a DMN op-ed.

The only criminal involved

The whistleblower suit is currently pending at the Texas Supreme Court on appeal of an esoteric argument made by the attorney general. Recently, the Office of the Attorney General and the whistleblowers reached a settlement where the whistleblowers would receive $3.3 million to compensate them for lost wages, compensatory damages and attorneys’ fees incurred in the 2-year-old court battle.

The Texas Legislature must now decide whether to approve payment of the settlement. If the Legislature does not approve payment, the case will return to court, taxpayers will pay millions more in attorneys’ fees and even more for damages and plaintiffs’ attorneys’ fees if, as expected, the whistleblowers win a jury verdict. The attorney general’s office has already paid its private lawyers approximately $500,000 in attorneys’ fees and the parties have yet to even conduct discovery because of the appeal.

Some have criticized the settlement as “hush money” or argued that it would prevent the public from learning the details related to the accusations. This is incorrect. The whistleblowers have already provided tremendous detail in their 129-page lawsuit, which is a public document. Also, the settlement does not prohibit the whistleblowers from discussing the case or cooperating with law enforcement.

The suggestion that the whistleblowers should be forced to continue their lawsuit so discovery in the suit can be used to investigate the attorney general’s conduct is also unfair. The whistleblowers did their part. They reported illegal conduct to law enforcement and, in return, lost their careers. It is law enforcement’s job to investigate these allegations, which it appears they continue to do. Likewise, the Legislature has tremendous authority to demand documents and testimony from Paxton and those in his office, but it has not.

Why should the whistleblowers, who have already sacrificed their employment and already spent more than two years in court, be asked to spend even more resources and time to investigate the alleged conduct, when the FBI and the Texas Legislature have a mandate and countless resources available to do so?

See here and here for some background. The assertion about the Lege holding Paxton accountable aside – you probably heard my guffaw from the comfort of your home – they do made a decent point. That said, it is well within the Lege’s purview to approve the settlement and then cut the AG’s budget by an equal amount, which is what I would argue. We’ve heard some tough talk from some legislators and from Speaker Phelan. It’s all talk for now, and their track record isn’t too encouraging. But there is a clear path that does honor what the whistleblowers did – and by the way, y’all should keep on talking about it, in lots of detail and in front of crowds, as often as you can – while still exerting a modicum official disapproval on the waste of space known as Ken Paxton. It’s on the Republicans in the Lege to take it.

So will the Lege pay off Paxton’s whistleblowers or not?

It’s maybe a bit more complicated than I thought at first.

Always a crook

Texas House Speaker Dade Phelan says he is against using taxpayer money to pay Attorney General Ken Paxton’s $3.3 million settlement agreement in a whistleblower lawsuit filed by four former employees.

In an interview with CBS DFW on Wednesday, Phelan said it would not be “a proper use of taxpayer dollars” and that he does not anticipate that the $3.3 million cost will be included in the House budget.

“Mr. Paxton is going to have to come to the Texas House,” Phelan said. “He’s going to have to appear before the appropriations committee and make a case to that committee as to why that is a proper use of taxpayer dollars, and then he’s going to have to sell it to 76 members of the Texas House. That is his job, not mine.”

Lt. Gov. Dan Patrick, who presides over the Texas Senate, has so far remained silent on the issue. Patrick’s office did not respond to an American-Statesman request for comment Thursday.

[…]

In a statement released Friday, Paxton said he agreed to the settlement to limit the cost of continuing the litigation.

“After over two years of litigating with four ex-staffers who accused me in October 2020 of ‘potential’ wrongdoing, I have reached a settlement agreement to put this issue to rest,” Paxton wrote. “I have chosen this path to save taxpayer dollars and ensure my third term as Attorney General is unburdened by unnecessary distractions. This settlement achieves these goals. I look forward to serving the people of Texas for the next four years free from this unfortunate sideshow.”

The whistleblowers filed the lawsuit against the Office of the Attorney General, not Paxton personally, so the Legislature will have to decide whether or not to appropriate public money to pay the bill.

See here for the background and my well-earned skepticism that the Republican legislature would ever hold Ken Paxton accountable for anything, and here for the original story. Before we get into the details, there’s this to consider.

Attorneys for four former employees who accused Attorney General Ken Paxton of corruption urged lawmakers on Friday not to oppose their $3.3 million settlement — which must be approved by the Legislature because it’s being paid out with taxpayer money.

The attorneys for Blake Brickman, David Maxwell, Mark Penley and Ryan Vassar — all former top deputies to Paxton in the attorney general’s office — said their clients “courageously reported what they believed to be corruption and put the investigation in the hands of law enforcement where it belongs” and were now asking lawmakers to back their efforts to report wrongdoing.

Rejecting the settlement could discourage others from coming forth to report wrongdoing in state agencies in the future, they said.

“No Texas legislator should oppose these whistleblowers’ hard-fought claim for compensation to which they are entitled under the Texas Whistleblower Act,” the attorneys wrote. “State employees cannot be expected to report government corruption in the future if they know the Legislature won’t back their rights under the statute it passed for the very purpose of protecting them.”

[…]

The settlement agreement was announced last Friday and would include the $3.3 million payments to the four employees who were fired and lost wages after reporting what they believed to be Paxton’s crimes. It would also include an apology from Paxton, the retraction of a news release that called the former deputies “rogue employees” and a statement that neither side admits fault in the case.

But the proposed settlement has garnered some opposition from the public and lawmakers because it would be paid out of state funds. Budget writers in the Senate, like Dallas Democrat Royce West, have also expressed skepticism about the agreement.

Under the Texas Whistleblower Act, plaintiffs are allowed to sue the employing agency where the retaliation happened, but not a specific employee in their personal capacity. That is why the payment would be paid out of state funds and not Paxton’s personal funds.

In their statement, the attorneys told lawmakers that the former employees had unfairly lost their jobs and been smeared by Paxton in news stories for reporting what they believed to be serious crimes.

On Thursday, the Supreme Court of Texas, which had been considering a Paxton appeal to the whistleblower suit, put the case on hold to give the parties time to finalize the agreement. The parties have until April 3 to figure out whether lawmakers will agree to the settlement and must notify the court about any changes in the proceedings.

While I could be persuaded that some number of Republican legislators might be a bit low on patience with Paxton, the four whistleblowers will be much more compelling to them. They were all conservative Republicans in good standing themselves, and agreeing to a settlement does sweep this contentious and embarrassing matter under the rug. If they have to take it to court and eventually win, the price tag will be much higher, and as before the state would be on the hook for it. As far as that goes, from a risk management perspective, approving the settlement makes sense.

That said, I don’t see why the Lege has to appropriate an extra $3.3 million to the AG’s office to pay it off. I do think they are well within bounds to appropriate whatever they would have without this, and tell Paxton to figure out his budget on his own. If that means he has to make some uncomfortable choices, that’s his problem and the consequences of his own actions. I think Speaker Phelan has the right idea here, but it wouldn’t hurt to spell it out to the members who might think that they have to explicitly cover this cost. The budget for the AG’s office will have more than enough funds to cover this check. Ken Paxton can do the work to make it happen. That’s the best way forwawrd.

Paxton federal corruption probe moved to DOJ

This is a little confusing at first, but it has some good news in there.

The only criminal involved

Justice Department officials in Washington have taken over the corruption investigation into Texas Attorney General Ken Paxton, removing the case from the hands of the federal prosecutors in Texas who’d long been leading the probe.

The move was disclosed in a statement by state prosecutors handling their own case against Paxton. It’s the latest development in the federal investigation into the attorney general, who came under FBI scrutiny in 2020 after his own top deputies accused him of bribery and abusing his office to help one of his campaign contributors, who also employed a woman with whom Paxton acknowledged having had an extramarital affair.

The investigation of the three-term Republican is now being led by the Justice Department’s Public Integrity Section, which prosecutes allegations of official misconduct against elected leaders at the local, state and federal level. The U.S. attorney’s office in Texas was recently recused from the complex case after working on it for years — an abrupt change that came within days of Paxton agreeing to apologize and pay $3.3 million in taxpayer money to four of the former staffers who reported him to the FBI.

State prosecutors working on a separate securities fraud case against Paxton — Brian Wice and Kent Schaffer — said in a statement to The Associated Press on Thursday that they were notified of the move. They referred all questions to the Justice Department, which declined to comment.

It’s not known whether Paxton will face charges, although federal investigators in Texas who had worked the case believed there was sufficient evidence for an indictment, according to two people familiar with the matter who spoke to the AP on condition of anonymity because they were not authorized to discuss the ongoing probe.

It was not immediately clear what prompted top Justice Department officials to recuse the federal prosecutors in West Texas but the move was pushed for by Paxton’s attorneys. One of his defense lawyers, Dan Cogdell, said Thursday that he’d previously appealed to agency officials to take the case out of the hands of the local U.S. attorney’s office, which he said had “an obvious conflict” because of the overlapping allegations and investigations that led to the probe of Paxton.

Eight of Paxton’s senior staff accused him of crimes in 2020 after the attorney general hired an outside lawyer to look into an Austin real-estate developer’s claims of wrongdoing by FBI agents and federal prosecutors who were separately investigating the developer. Those agents and lawyers are part of the same federal prosecutorial district as the ones who came to investigate Paxton.

“It was the right thing to do,” said Cogdell. He said federal officials had not informed him of the move and declined to comment further.

The overlap was known to officials within the Justice Department and publicly reported on by the AP within weeks of Paxton’s staff going to the FBI. Nonetheless, the agency left the investigation to be led by a career federal prosecutor based in San Antonio, who was previously best known for winning a money laundering and fraud case against a Democratic state senator.

It’s good and more than a little interesting to get an update on this story, especially given that I was despairing about the lack of information just a few days ago. I was a bit puzzled by this at first because I have thought about the probe into Paxton’s dealings with Nate Paul – which among other things led to the whole whistleblower saga and the settlement of same that just happened – as an “FBI investigation”. For sure, the FBI is a key player, but of course there is a prosecutor associated with it as well. Someone – several someones, really – has to believe that there may be a viable prosecution at the end of this, or it would be terminated, as there are other fish to be fried. The original someone was in the San Antonio office of the US Attorney, but as noted that office is also investigating Nate Paul, and since Paxton is an elected official there could be a conflict of interest there. To be honest, I’m unclear what that might be – either there’s evidence of a crime or there’s not – but if it’s the norm for these matters to be overseen in Washington by the Justice Department instead of by the local USA, then fine.

Two points to mention here. One is that this is evidence that the investigation in question is still active, and if the unnamed sources are to be believed, there is a future in which Paxton faces federal indictment, which should be a lot harder for him to stonewall and weasel out of, at least without an ally in the White House who can put a thumb on the scale for him. When that might be, God and maybe Merrick Garland only know. But at least it’s still out there. The fear was that the investigation had come to an end, as these things sometimes do, with nothing to show for it and no reason to make a news story of it.

And two, one way of reading this story is that it’s a story in the first place because the long-stonewalled prosecutors of the state case against Paxton mentioned it to a reporter. Maybe the AP heard about this transfer of the investigation on their own and reached out to Brian Wice and Kent Schaffer for a comment even though they don’t have anything to do with the federal case. It’s a plausible interpretation, they’d surely say something if they had something to say, and everyone knows about the state case that has dragged on since approximately the second Reagan administration. I just find it curious enough to wonder. For sure, getting this out there now, right after the whistleblower case was settled and Paxton got to do a bit of a victory dance, was a way to remind everyone that he still faces a lot of potential trouble, and maybe dampens his mood a little. I am 100% speculating here, I could be completely off base. I’m just saying this is what came to mind when I read that paragraph.

Anyway, whatever came to your mind, there’s more at Daily Kos, the Trib, and the Chron. If we do hear more about this case going forward, that would be nice.

AG argues for separating that San Antonio criminal justice reform proposition into multiple questions

Not a surprise, but an aggressive position to take.

Attorney General Ken Paxton’s office is urging the Texas Supreme Court to side with opponents of a proposed charter amendment that seeks to decriminalize marijuana and abortion, as well as enact a host of other police reforms.

Solicitor General Judd Stone submitted a letter to the court Wednesday calling the proposal a “grab-bag of provisions” that “flagrantly violates” a state law prohibiting multi-subject charter amendments.

Stone urged the court to grant a petition filed by the anti-abortion group Texas Alliance for Life Inc. (TAL) requesting that the city reject the proposed ballot language, and instead require a vote on each provision individually.

“While the substance of this proposed charter amendment conflicts with multiple substantive provisions of state law, this mandamus proceeding concerns a procedural problem: the charter amendment plainly violates Texas law’s longstanding prohibition on municipal charter amendments that ‘contain more than one subject,’” Stone wrote.

[…]

City Attorney Andy Segovia told reporters last week he believed most of the charter amendments’ provisions were at odds with state law and therefore unenforceable by the city even if they’re approved by voters.

Stone’s letter agreed with that assessment and accused San Antonio officials of “abuse[ing] their discretion by certifying and including this charter amendment on the ballot.”

In a written response to TAL’s petition Tuesday, Segovia defended his decision to place the amendment on the ballot as written because city officials “plausibly read the proposed charter amendment language to encompass only ‘one subject’ as required by statute.”

Segovia added that opponents should challenge the validity of the amendment after the election, not before.

Stone’s letter disagreed, and asked the Texas Supreme Court to take swift action against the proposal in its entirety. He suggesting the court has long favored stopping such charter amendments before they’re voted on, something that’s still possible if it can prevent San Antonio from including it on the ballot this week.

“When there is an opportunity to correct a ballot before the election, waiting to address the issue through a post-election contest and, potentially another election, is not an adequate remedy,” Stone wrote. “Because respondents can correct the ballot now, [TAL’s] mandamus is appropriate.”

See here for the background. I still think, based on past history, that SCOTx would prefer to not get involved at this time, but I’m somewhat less confident of that now. Both sides of this argument are defensible, so it really is a question of whether SCOTx wants to step in now or just wait for the inevitable lawsuit later. For sure, if this passes it will be a quick matter before they have to rule on a temporary restraining order one way or the other about enforcement. Breaking it up into its components means there will be multiple lawsuits instead of one. I don’t know what they’ll do, but as I said before, we’ll surely find out quickly. San Antonio City Council approved it for the ballot as is, which was also as expected. Now we wait to see what if anything SCOTx does. The Current has more.

The furniture guy files a lawsuit

Spare me.

Houston furniture magnate Jim “Mattress Mack” McIngvale has filed a lawsuit against the Harris County Elections Administrator’s office accusing it of refusing to turn over public records related to the November 2022 election, adding to an array of GOP litigation aimed at the county’s elections process.

According to the petition filed Monday night, Wayne Dolcefino, a media consultant and former TV journalist, submitted multiple requests for public information on behalf of the Gallery Furniture owner, who was a major donor supporting Republican candidates including County Judge Lina Hidalgo’s opponent Alexandra del Moral Mealer.

In response to each of the requests for public information, the elections office responded by seeking an opinion from the Texas Attorney General’s office allowing it to withhold the information due to ongoing litigation, the lawsuit states.

The petition also acknowledges the county has provided some of the requested documents.

In a statement Tuesday, Harris County Attorney Christian Menefee’s office said: “The requests for these documents were handled the same as any other requests for documents related to ongoing litigation against the county. We’re evaluating the lawsuit and will let the courts sort it out.”

The Harris County Elections Administrator’s Office also issued a statement, saying it readily has responded to requests that do not require documents subject to the litigation, and has sought an opinion from the attorney general’s office on those that do.

“According to the Public Information Act, the attorney general’s office has 45 working days from the day after the request to respond. As of today, the office has not received an opinion on how to proceed with these particular public information requests. Any suggestion that the Harris County Elections Administrator’s Office lacks transparency is false,” it said.

The lawsuit is an example of why the Texas Legislature should repeal the “litigation exception” provision in state law that offers public offices an option to withhold records during litigation, said Bill Aleshire, an Austin attorney who works with the Freedom of Information Foundation of Texas.

“There is no justification for denying the public information about a controversy just because it involves litigation,” Aleshire said. “In fact, when something controversial enough happens to be the subject of a lawsuit, that is exactly when the public most needs to know what the record shows. Yet, the way the (Texas Public Information Act) is written, no one — except those involved in the underlying lawsuit — can get access to the public information.”

The “litigation exception” typically is upheld by courts, so McIngvale’s lawsuit is unlikely to produce the requested records, he said.

However, state law does not prevent the county from providing the records, but rather gives the county discretion to decide.

“It does not make the records ‘confidential’ (where it would be illegal to disclose the information); it just means the government is not required to disclose the information,” Aleshire said. “But they could if they are willing to do so.”

So if I understand this correctly, the Elections Office could provide these documents on demand, but legally they don’t have to until they get an opinion on it from the AG’s office. That may be a bad feature of the law as it now exists, but it is the law and a district court is highly unlikely to deviate from the normal course of behavior. Which makes this entire spectacle little more than a plea for attention and a waste of everyone’s time. Have I got that right? The Press has more.

Paxton settles with whistleblowers

Meh.

The only criminal involved

Attorney General Ken Paxton and four of his former top deputies who said he improperly fired them after they accused him of crimes have reached a tentative agreement to end a whistleblower lawsuit that would pay those employees $3.3 million dollars.

In a filing on Friday, attorneys for Paxton and the whistleblowers asked the Texas Supreme Court to further defer consideration of the whistleblower case until the two sides can finalize the tentative agreement. Once the deal is finalized and payment by the attorney general’s office is approved, the two sides will move to end the case, the filing said.

“The whistleblowers sacrificed their jobs and have spent more than two years fighting for what is right,” said TJ Turner, an attorney for David Maxwell, a whistleblower and former director of law enforcement for the attorney general’s office. “We believe the terms of the settlement speak for themselves.”

Paxton, a Republican who won a third four-year term in November, said in a statement that he agreed to the settlement to save taxpayer money and start his new term unencumbered by the accusations.

“After over two years of litigating with four ex-staffers who accused me in October 2020 of ‘potential’ wrongdoing, I have reached a settlement agreement to put this issue to rest,” Paxton said. “I have chosen this path to save taxpayer dollars and ensure my third term as Attorney General is unburdened by unnecessary distractions. This settlement achieves these goals. I look forward to serving the People of Texas for the next four years free from this unfortunate sideshow.”

The tentative agreement would pay $3.3 million to the four whistleblowers and keep in place an appeals court ruling that allowed the case to move forward. Paxton had asked the Supreme Court to void that ruling. The settlement, once finalized, also will include a statement from Paxton saying he “accepts that plaintiffs acted in a manner that they thought was right and apologizes for referring to them as ‘rogue employees.’”

The attorney general’s office also agreed to delete a news release from its website that called the whistleblowers “rogue employees.” The news release had been deleted as of Friday morning.

[…]

Two weeks ago, three of the four plaintiffs in that lawsuit – Penley, Maxwell and Vassar – asked the Texas Supreme Court to put their case on hold while they negotiated a settlement with Paxton. Brickman initially sought to oppose the motion but signed onto the settlement agreement filed with the court Friday.

See here for the previous entry. Good for the fired guys getting paid – Paxton did them wrong, and they made him pay for it, which is as it should be. And as this stands, the ridiculous argument that Paxton as an elected official is exempt from the Texas Whistleblower Act remains a crackpot theory and not an official opinion of the Supreme Court. Someone may try that again some day, but maybe this demonstrated the weakness of that claim. We can only hope.

On the other hand, all of the details of what happened here are going to be forever swept under the rug. Did Paxton do any of the things that he was alleged to have done – as a reminder, the list includes “bribery, tampering with government records, obstruction of justice, harassment and abuse of office”, as well as blatantly lying about the charges on the campaign trail? We’ll never know for sure, unless the FBI gets off its rear end and files criminal charges against him. And, um, not to put too fine a point on it, but where is that three million bucks to settle this going to come from? If the answer to that is “your tax dollars and mine”, well, I’m not so sure Paxton will be incentivized to actually learn a lesson from all this, you know? It’s true that a verdict and judgment against Paxton would have run into a lot more dough, also your taxes and mine, but I have this nagging feeling that Paxton was basically playing with house money. The asshole got away with it again.

Okay, maybe not:

The payment for the settlement would come out of state funds and has to be approved by the Legislature. After the tentative agreement was made public, state representative Jeff Leach, the Republican from Plano who oversees the House Judiciary and Civil Jurisprudence Committee, said he was “troubled that hardworking taxpayers might be on the hook for this settlement between the Attorney General and former employees of his office.”

“I’ve spoken with the Attorney General directly this morning and communicated in no uncertain terms that, on behalf of our constituents, legislators will have questions and legislators will expect answers,” Leach said in a statement to the Texas Tribune.

Yeah, well, I’ll believe that when I see it. The next time the Republicans hold Ken Paxton accountable for anything will be the first time that happens. The Chron has more.

Paxton seeks settlement with some of the whistleblower plaintiffs

Very interesting.

The only criminal involved

Texas Attorney General Ken Paxton’s legal team is in settlement negotiation talks with three of the four former employees who filed a whistleblower lawsuit against him for firing them after they accused Paxton of criminal acts.

Paxton’s lawyers, in a joint filing last week with attorneys for Mark Penley, David Maxwell and Ryan Vassar — Paxton’s former deputies — asked the Texas Supreme Court to put the whistleblower case on hold to give the parties time to negotiate a settlement. The lawyers wrote they were “actively engaged in settlement discussions” with mediation set for Wednesday.

Lawyers for a fourth plaintiff, Blake Brickman, opposed the motion in their own filing and urged the court to move forward with its consideration. The news was first reported by The Dallas Morning News.

[…]

Paxton has argued in state court that he is exempt from the Texas Whistleblower Act because he is an elected official, not a public employee and that he fired them not in retaliation for their complaint, but because of personnel disagreements. An appeals court has ruled against him and allowed the case to move forward. But last January, Paxton appealed his case to the Texas Supreme Court.

The joint filing by Paxton’s lawyers and the three plaintiffs says the court should defer its review of the case until Feb. 9 to give the parties an opportunity to resolve the issue outside of the courtroom.

Paxton’s office did not immediately respond to a request for comment.

Brickman’s lawyers, Thomas Nesbitt and William T. Palmer, said in their filing that Paxton’s team has been delaying the case for two years and “there is no reason for abating this case.” They argued that the other plaintiffs sought the pause only because they intended to settle the case, but since Brickman was not involved in those negotiations, his claims still needed a quick resolution.

“Brickman respectfully requests that this Court deny the request for abatement,” they wrote. “It imposes further needless delay of the adjudication of Brickman’s claim.”

See here for my last update, in June. I am unabashedly rooting for Blake Brickman here. I respect that Messrs. Penley, Maxwell, and Vassar wish to settle. If they think that’s in their best interests, then godspeed and good luck. But if Brickman wants to pursue the case, there’s no reason to make him and SCOTx wait until they come to an agreement – if indeed they do. The question of whether Paxton as Attorney General can be sued at all in this context matters, and we deserve to get a ruling on that. (Yes, I may end up regretting this request, but such is life.) From a slightly more selfish perspective, the only way to ensure that the more sordid allegations from this complaint get an airing is if there’s a trial. Sure, if the FBI ever charges Paxton with a crime we may find out more, but given how long that has already taken and the amount of time Paxton has been able to evade trial for his state crimes, we may all be dead by the time that happens. So yeah, let this lawsuit continue. We all deserve some answers.

Can we finally end Ken Paxton’s egregious court-shopping?

File this under “About damn time”, even if it eventually comes to naught.

The only criminal involved

As soon as President Joe Biden entered the White House, Texas Attorney General Ken Paxton launched an unprecedented campaign of obstruction to block his agenda in the courts. Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.

On Thursday, the administration finally said: enough. In response to yet another Texas lawsuit exploiting this loophole, Biden’s Justice Department called out Paxton—and, implicitly, the judges playing along with his scheme. The DOJ highlighted Texas’ “blatant” and shameless “judge-shopping,” urging a transfer to another court “in the interests of justice.” Naturally, Trump-nominated Judge Drew Tipton is unlikely to oblige; that is, after all, why Paxton hand-picked him for this lawsuit. But the DOJ’s filing marks a new phase of battle against Republicans’ judicial gamesmanship: The Justice Department is playing hardball in the lower courts, forcing compromised judges to address their own complicity in a cynical partisan chicanery.

As soon as President Joe Biden entered the White House, Texas Attorney General Ken Paxton launched an unprecedented campaign of obstruction to block his agenda in the courts. Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.

On Thursday, the administration finally said: enough. In response to yet another Texas lawsuit exploiting this loophole, Biden’s Justice Department called out Paxton—and, implicitly, the judges playing along with his scheme. The DOJ highlighted Texas’ “blatant” and shameless “judge-shopping,” urging a transfer to another court “in the interests of justice.” Naturally, Trump-nominated Judge Drew Tipton is unlikely to oblige; that is, after all, why Paxton hand-picked him for this lawsuit. But the DOJ’s filing marks a new phase of battle against Republicans’ judicial gamesmanship: The Justice Department is playing hardball in the lower courts, forcing compromised judges to address their own complicity in a cynical partisan chicanery.

The underlying lawsuit in Texas v. Department of Homeland Security is another frivolous effort to shift control over border policy from the executive branch to a single federal judge. Paxton has pulled this off before: In August 2021, he persuaded another Trump-nominated judge, Matthew J. Kacsmaryk, to block Biden’s repeal of a Trump policy that forced U.S.-bound migrants to remain in Mexico. Kacsmaryk even forced U.S. diplomats to negotiate with Mexican officials under threat of sanctions. Texas’ new suit, filed on Tuesday, seeks to do something similar. The state is infuriated by a new agreement between the Biden administration and Mexico regarding migrants from Cuba, Nicaragua, Haiti, and Venezuela. (The U.S. cannot send these migrants back to their home countries.) The agreement compels most of these migrants to stay on the Mexican side of the border. But it allows a small number of them to enter the U.S. legally—and remain here for a limited period—if they are vetted and have financial supporters in the country already.

This policy, first implemented in December, has already contributed to a dramatic reduction in unlawful entry among migrants from the four relevant nations. But Texas is furious that the new rules will allow some migrants to enter the U.S. lawfully. So its lawsuit asks the judiciary to strike down the entire policy, blowing up negotiations between the Mexican and American governments.

Paxton strategically filed the suit in the Victoria Division of the Southern District of Texas, where exactly one judge sits: Tipton, not just a Trump nominee but also a longtime Federalist Society member. This is the seventh case that Paxton has positioned before Tipton. The first, filed two days after Biden’s inauguration, sought to block the new president’s 100-day halt on deportations. Tipton swiftly granted a nationwide injunction against the pause.

Paxton’s suit is also the 25th time he has exploited the single-judge loophole to get a case before an ideological ally in Texas, according to statistics meticulously compiled by law professor (and Slate contributor) Steve Vladeck. (That count shoots up when you factor in suits filed in other red states with single-judge divisions, like Louisiana.) This plot goes way beyond any Democratic forum-shopping under Trump. Democrats filed in favorable district courts and hoped they drew a left-leaning judge. Paxton, by contrast, zeroes in on a handful of divisions within districts where he is guaranteed to draw a hard-right judge.

The Justice Department is asking for the case to be moved to either Austin or Washington, DC, on the theory that as the plaintiff is the state of Texas and the defendant is the USA, the case should be heard where one of them “resides”, which is to say one of their capitals. Alternately, the Justice Department asks for the suit to be moved to another division within the Southern District of Texas, one that has multiple judges in it, so the case can be randomly assigned as per the norm, instead of going to one of Paxton’s pet judges by default. I have no idea what the likelihood of that is – clearly, Slate author Mark Joseph Stern isn’t optimistic – but it can’t hurt to ask, if only to see what kind of weak justification is given for denying the request. I don’t know if this is appealable, but if it is I’d expect the Justice Department to go for it, since why not. It’s worth the effort and if nothing else it may at least put a little sand in Paxton’s gears. Anything is better than what we have been doing.

More on the lawsuit against Paxton’s deranged ballot access opinion

There are actually three counties suing him, not just the one I had originally noted.

The only criminal involved

At least three Texas counties — Tarrant, Williamson, and Harris — have sued Attorney General Ken Paxton and are asking a judge to strike down a legal opinion he released last year that says anyone can access voted ballots right after an election. The lawsuits allege Paxton’s opinion violates state and federal law, contradicts his own previous direction on the issue, and exposes local election administrators to potential criminal charges.

For decades, the attorney general’s office advised counties that voted ballots were to be kept secure for 22 months after an election, a timeframe mandated by federal law and Texas state election code. But only months before the November 2022 general election, even though neither law had changed, Paxton released an opinion saying the documents could be released to anyone who requested them, almost right after the ballots were counted.

Now, counties and election officials across the state are stuck. They can follow Paxton’s new opinion — which is only a written interpretation of the law — and potentially open themselves up to criminal penalties for violating state law, or they can defy the state attorney general and open up themselves to costly lawsuits.

That’s why now the counties are asking a judge to step in and settle the question.

Paxton’s office did not respond to emails requesting comment. Paxton so far has filed a response only to Tarrant County’s lawsuit, which was filed in October and was the first of the three challenges. Paxton’s office denied the county’s claims.

Experts say the move by three different counties to challenge the Texas attorney general’s legal opinion speaks to the complicated position it has put local election officials in. His opinion, they say, has caused chaos, and has no basis in state law.

“These counties don’t have a choice. They have to worry about whether Ken Paxton is going to take action against them,” said Chad Dunn, an Austin-based attorney and an expert on Texas election law. Dunn said Paxton’s opinion “is laughable. The election code is clear. I’ll be just shocked if the state court system ends up agreeing with Ken Paxton and the ballots are public.”

[…]

The Texas attorney general’s office, including Paxton’s own administration, has affirmed this interpretation of the law since the 1980s. The practice of keeping the ballots preserved and confidential for 22 months, experts say, prevents the documents from being tampered with or compromised and protects the documents’ reliability in case there’s a request for recount or other election challenges.

Paxton released his opinion in August after a request from state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans, who said members of the public and legislators desired “to audit the outcome of Texas elections.” In a footnote, Paxton acknowledged that the attorney general’s office had issued a previous opinion in 1988, before he took office, saying unauthorized access to the ballots during the preservation period is prohibited. But the new opinion offers no clear explanation of his decision to change a decades-old precedent.

Paxton’s office “does not have the authority to make or change the law; that is a responsibility that solely rests with the Texas Legislature,” Tarrant County’s lawsuit says.

Paxton’s new opinion does not address the potential criminal exposure of election officials, who could be charged with a misdemeanor amounting to $4,000 in fines or up to a year in jail, or offer a clear timeframe of how quickly election clerks must provide the records to requesters.

“The Election Code provides a few limited circumstances where the custodian has express authority to access ballots prior to the 22-month expiration. Responding to [public information] requests is not one of those circumstances,” the Williamson County lawsuit says.

The three lawsuits are technically challenging Paxton’s Public Information Act decisions — which experts say is not an uncommon practice — and not his legal opinion directly. In order for counties to be able to challenge an attorney general’s opinion in court, the counties must have “standing and show a reason why it affects” them said Bob Heath, an Austin-based election and voting rights lawyer and a former chair of the opinions committee of the Texas attorney general’s office. The counties are doing so through the Public Information Act challenges that are based on Paxton’s decision, which Heath says is “wrong.”

“That’s a way to get to this opinion, and the opinion obviously poses a real problem for counties or for election administrators and county clerks,” Heath said.

See here, here, and here for the background. I don’t have much to add to what I’ve already said, I’m just waiting to see when the court will issue a ruling. After that, it’s a matter of what the Supreme Court will do. I have some hope, but these days that always has to be tempered with extreme anxiety. Stay tuned.

Paxton sued over his deranged ballot access opinion

Good.

The only criminal involved

The Williamson County attorney’s office has sued Texas Attorney General Ken Paxton, claiming a ruling he made that gives the public immediate access to ballots after an election violates state law.

County officials, the lawsuit said, can be charged with a misdemeanor if they release the information before a 22-month period required by the state election code that ballots must be kept confidential.

[…]

Three people requested to see the Williamson County ballots on Aug. 17, 2022, and Aug. 23, 2022, from different county elections, including all 2021 elections and the March 2022 primary, according to the lawsuit. The only reason they gave for their request was that the attorney general had ruled on Aug. 17, 2022, that ballot information could be released before the 22-month waiting period if there was a public information request for it, said the lawsuit.

County officials, the lawsuit said, did not want to release the information before the 22-month waiting period was over, saying the information was confidential, according to the Texas Election Code.

The attorney general’s office responded in a Nov. 9 letter saying that the ballot information is public information and that the county must release it immediately, the lawsuit said.

The county disagreed with Paxton’s ruling, saying the Texas Legislature “has decreed that the voted ballots remain secure for the 22-month preservation period and has criminalized the unauthorized access to those ballots,” according to the lawsuit.

“The Attorney General does not have the authority to overrule the expressed command of the Legislature by ruling that the Open Records Act supersedes the Election Code provision.”

The lawsuit also said that Paxton had made multiple rulings the county had received in 2022 “that the ballots and cast vote records were confidential during the 22-month preservation period” before Paxton changed his mind and ruled that the public must be allowed access to the ballots.

Linda Eads, a law professor at Southern Methodist University and a former deputy attorney general for litigation for the state of Texas, said she was shocked by Paxton’s August ruling.

“Section 66.058 (of the Texas Election Code) is specific and makes clear that election information is deemed confidential and must be treated as such, even if the more general statute Section 1.012 says election information is public information,” said Eads.

See here and here for some background. The courts have on occasion been willing to put a check on Paxton’s power, and I hope this will be one of those times. At least we’re in the state courts, so the Fifth Circuit won’t be involved. The Lege could modify the law in question to moot the claim, but with any luck there won’t be the time or the inclination to do that in this session. We may have to worry about it again in 2025, but we have enough to occupy ourselves with now, so let’s not borrow trouble.

Is trap-neuter-return illegal?

A question that could affect a lot of cities, including Houston.

Trap, neuter, return programs are popular across Texas as a way to control feral cat populations. But one local official is now posing a thorny question: Are they legal?

Brazoria County District Attorney Tom Selleck has asked the attorney general’s office to determine whether the initiatives run afoul of animal cruelty laws that criminalize abandonment.

Selleck insists he is not trying to put an end to the programs, but instead wants clarification as several cities in his area consider their use.

“We’re certainly not saying it’s a bad program, quite the contrary, I think it has some excellent benefits,” he said. “I just don’t want somebody getting arrested over it. I’d like to know what my parameters are as a prosecutor.”

Attorney General Ken Paxton has yet to issue the opinion that could have sweeping implications for animal control efforts in Dallas and other cities. In addition to managing stray cat populations, the programs are also credited with cutting back on nuisance mating behaviors like fighting, yowling and marking.

Generally the programs work like this: Stray cats are trapped, then sterilized and vaccinated by a veterinarian before being returned to where they were found. Animals that have been through the process are often marked with a clipped ear.

In his November letter, Selleck questioned whether the programs may conflict with a state law that makes it a crime to abandon “unreasonably an animal in the person’s custody.”

“Returning the animal into the wild, without making reasonable arrangements for another individual to take custody of said animal, operates as a form of abandonment, by letter of the law,” he wrote. “If the abandonment is made unreasonably, such as leaving the stray in an open and unsafe environment, then that may support a conviction.”

Danielle Bays, a senior analyst for cat protection and policy at the Humane Society of the United States, pushed back on that notion.

“It’s not as if these cats are being left to fend for themselves,” Bays said. The stray cats are returned to the same place they were trapped, she said, often where they’re being fed or cared for by people.

“I don’t know of anywhere where people have actually been charged with abandoning cats when they return them to where they were found,” she said. “If you’re taking those cats and releasing them somewhere else, if you were just dumping them somewhere, that’s not the same thing.”

I get where DA Selleck is coming from – certainly as an officer of the court he wants to make sure he’s in compliance with the law – but I dunno, if the issue has never come up before and so many cities have been doing this without any problems, maybe it’s not an issue? Houston is one of those cities, so we have some skin in this game. Selleck says that he hopes the AG’s office will return an opinion in time for the Lege to take action if needed, a sentiment with which I agree. That said, if there really is a concern, there’s no reason not to ask a legislator right now to craft and carry a bill that would clarify the law and remove the potential conflict. Why take the chance on the opinion landing after the bill filing date, or the Lege not having the time to move it after the opinion drops? If it’s an issue, take action now. That’s my opinion.

Precinct analysis: The better statewide races

PREVIOUSLY
Beto versus Abbott
Beto versus the spread
Hidalgo versus Mealer

As noted before, Greg Abbott got 490K votes in Harris County, far less than the 559K he received in 2018 running against Lupe Valdez. Of the other six races for statewide executive offices, three were similar in nature to the Governor’s race and three were friendlier to Republicans. This post is about the first three, and those are the races for Lite Guv, Attorney General, and Ag Commissioner. For those of you whose memories stretch back as far as 2018, yes those were the three best races for Dems after the Beto-Cruz race for Senate as well. Let’s look at the numbers.

Lieutenant Governor


Dist  Patrick  Collier     Lib
==============================
HD126  35,244   23,460   1,482
HD127  38,578   26,405   1,691
HD128  31,548   13,748   1,148
HD129  36,347   26,966   1,802
HD130  44,307   20,934   1,434
HD131   5,886   24,670     933
HD132  34,417   25,498   1,374
HD133  31,931   27,421   1,396
HD134  28,262   51,502   1,828
HD135  16,373   23,514   1,050
HD137   7,690   13,164     650
HD138  30,328   25,534   1,383
HD139  11,536   31,304   1,246
HD140   5,850   12,681     647
HD141   4,494   20,290     851
HD142   8,641   25,030   1,043
HD143   8,469   15,270     804
HD144  11,551   14,029     854
HD145  12,368   32,031   1,449
HD146   8,285   33,018   1,148
HD147   8,809   36,618   1,383
HD148  15,383   20,840   1,065
HD149  11,923   19,315     824
HD150  33,548   22,898   1,431

CC1    65,573  204,223   7,632
CC2    94,272  105,549   6,218
CC3   214,555  146,441   8,815
CC4   107,368  129,927   6,251
							
JP1    58,698  126,202   5,083
JP2    21,608   29,498   1,599
JP3    34,975   41,776   2,126
JP4   166,204  128,604   7,578
JP5   137,161  147,432   7,185
JP6     4,941   17,062     885
JP7    11,370   65,643   2,250
JP8    46,811   29,923   2,210

Dist Patrick% Collier%    Lib%
==============================
HD126  58.56%   38.98%   2.46%
HD127  57.86%   39.60%   2.54%
HD128  67.93%   29.60%   2.47%
HD129  55.82%   41.41%   2.77%
HD130  66.45%   31.40%   2.15%
HD131  18.69%   78.34%   2.96%
HD132  56.16%   41.60%   2.24%
HD133  52.56%   45.14%   2.30%
HD134  34.64%   63.12%   2.24%
HD135  40.00%   57.44%   2.56%
HD137  35.76%   61.22%   3.02%
HD138  52.98%   44.60%   2.42%
HD139  26.17%   71.01%   2.83%
HD140  30.50%   66.12%   3.37%
HD141  17.53%   79.15%   3.32%
HD142  24.89%   72.10%   3.00%
HD143  34.51%   62.22%   3.28%
HD144  43.70%   53.07%   3.23%
HD145  26.98%   69.86%   3.16%
HD146  19.52%   77.78%   2.70%
HD147  18.82%   78.23%   2.95%
HD148  41.25%   55.89%   2.86%
HD149  37.19%   60.24%   2.57%
HD150  57.96%   39.56%   2.47%

CC1    23.64%   73.61%   2.75%
CC2    45.75%   51.23%   3.02%
CC3    58.02%   39.60%   2.38%
CC4    44.09%   53.35%   2.57%
			
JP1    30.90%   66.43%   2.68%
JP2    41.00%   55.97%   3.03%
JP3    44.34%   52.96%   2.70%
JP4    54.96%   42.53%   2.51%
JP5    47.01%   50.53%   2.46%
JP6    21.59%   74.55%   3.87%
JP7    14.34%   82.82%   2.84%
JP8    59.30%   37.90%   2.80%

Attorney General


Dist   Paxton    Garza     Lib
==============================
HD126  35,146   23,166   1,681
HD127  38,480   26,208   1,817
HD128  31,566   13,692   1,110
HD129  36,386   26,643   1,914
HD130  44,397   20,427   1,713
HD131   5,857   24,875     694
HD132  34,454   25,125   1,539
HD133  31,901   26,700   1,898
HD134  28,201   50,706   2,371
HD135  16,314   23,615     964
HD137   7,704   13,091     643
HD138  30,154   25,204   1,732
HD139  11,438   31,372   1,145
HD140   5,605   13,078     466
HD141   4,487   20,489     610
HD142   8,580   25,228     859
HD143   8,346   15,595     594
HD144  11,375   14,337     662
HD145  12,220   32,097   1,425
HD146   8,320   32,991     999
HD147   8,731   36,766   1,206
HD148  15,221   20,981   1,035
HD149  11,876   19,423     706
HD150  33,382   22,726   1,595
							
CC1    65,204  204,223   7,257
CC2    93,611  106,606   5,426
CC3   214,042  144,575  10,162
CC4   107,284  129,131   6,533
							
JP1    58,125  125,740   5,522
JP2    21,364   29,906   1,317
JP3    34,843   42,072   1,833
JP4   165,760  127,783   8,087
JP5   136,969  146,132   7,898
JP6     4,815   17,369     687
JP7    11,411   65,835   1,804
JP8    46,854   29,698   2,230

Dist  Paxton%   Garza%    Lib%
==============================
HD126  58.58%   38.61%   2.80%
HD127  57.86%   39.41%   2.73%
HD128  68.08%   29.53%   2.39%
HD129  56.03%   41.03%   2.95%
HD130  66.73%   30.70%   2.57%
HD131  18.64%   79.15%   2.21%
HD132  56.37%   41.11%   2.52%
HD133  52.73%   44.13%   3.14%
HD134  34.70%   62.39%   2.92%
HD135  39.89%   57.75%   2.36%
HD137  35.94%   61.06%   3.00%
HD138  52.82%   44.15%   3.03%
HD139  26.02%   71.37%   2.60%
HD140  29.27%   68.30%   2.43%
HD141  17.54%   80.08%   2.38%
HD142  24.75%   72.77%   2.48%
HD143  34.02%   63.56%   2.42%
HD144  43.13%   54.36%   2.51%
HD145  26.72%   70.17%   3.12%
HD146  19.66%   77.97%   2.36%
HD147  18.69%   78.72%   2.58%
HD148  40.88%   56.34%   2.78%
HD149  37.11%   60.69%   2.21%
HD150  57.85%   39.38%   2.76%
			
CC1    23.57%   73.81%   2.62%
CC2    45.52%   51.84%   2.64%
CC3    58.04%   39.20%   2.76%
CC4    44.16%   53.15%   2.69%
			
JP1    30.69%   66.39%   2.92%
JP2    40.63%   56.87%   2.50%
JP3    44.25%   53.43%   2.33%
JP4    54.95%   42.36%   2.68%
JP5    47.07%   50.22%   2.71%
JP6    21.05%   75.94%   3.00%
JP7    14.44%   83.28%   2.28%
JP8    59.47%   37.70%   2.83%

Dan Patrick (481K votes) and Ken Paxton (480K) were the two low scorers among Republicans. Mike Collier and Rochelle Garza both had leads against them of just over 100K votes, right in line with Beto’s lead against Abbott. That’s not as robust as what Dems did in 2018 as we know, but I can’t blame Collier and Garza for that. They were still top scorers, it was mostly that the environment wasn’t as good for them.

Overall, it looks like Collier and Garza did about as well percentage-wise as Beto did. Collier actually did a tiny bit better in HD133, and both did better in HD134. In some cases, like HD132 and HD138, Collier and Garza were about equal with Beto but Patrick and Paxton were a point or two behind Abbott. That looks to me to be the effect of the larger Libertarian vote in those races – there were about 29K Lib votes in these two races, while there were about 16K third party and write-in votes for Governor. At least in those cases, you can make the claim that the Libertarian received votes that might have otherwise gone to the Republican.

In the Ag Commissioner race, Sid Miller got 507K votes to top Abbott’s total, but he was aided by not having any third party candidates. Susan Hays did pretty well compared to the other Dems in that straight up two-way race:

Ag Commissioner


Dist   Miller     Hays
======================
HD126  36,872   22,678
HD127  40,060   25,992
HD128  32,447   13,641
HD129  38,091   26,236
HD130  46,273   19,792
HD131   6,091   25,170
HD132  36,189   24,576
HD133  34,548   25,581
HD134  31,793   48,687
HD135  17,174   23,491
HD137   8,207   13,090
HD138  32,276   24,389
HD139  12,291   31,372
HD140   5,904   13,079
HD141   4,667   20,779
HD142   9,047   25,391
HD143   8,631   15,710
HD144  11,849   14,344
HD145  13,871   31,301
HD146   8,922   33,114
HD147   9,761   36,482
HD148  16,238   20,657
HD149  12,270   19,513
HD150  34,895   22,408
						
CC1    71,746  202,649
CC2    97,753  106,167
CC3   224,670  141,583
CC4   114,198  127,074
						
JP1    64,850  122,675
JP2    22,256   29,898
JP3    35,923   42,332
JP4   173,381  126,119
JP5   145,619  143,496
JP6     5,243   17,412
JP7    12,266   66,242
JP8    48,829   29,299

Dist  Miller%    Hays% 
=======================
HD126  61.92%   38.08%
HD127  60.65%   39.35%
HD128  70.40%   29.60%
HD129  59.21%   40.79%
HD130  70.04%   29.96%
HD131  19.48%   80.52%
HD132  59.56%   40.44%
HD133  57.46%   42.54%
HD134  39.50%   60.50%
HD135  42.23%   57.77%
HD137  38.54%   61.46%
HD138  56.96%   43.04%
HD139  28.15%   71.85%
HD140  31.10%   68.90%
HD141  18.34%   81.66%
HD142  26.27%   73.73%
HD143  35.46%   64.54%
HD144  45.24%   54.76%
HD145  30.71%   69.29%
HD146  21.22%   78.78%
HD147  21.11%   78.89%
HD148  44.01%   55.99%
HD149  38.61%   61.39%
HD150  60.90%   39.10%
		
CC1    26.15%   73.85%
CC2    47.94%   52.06%
CC3    61.34%   38.66%
CC4    47.33%   52.67%
		
JP1    34.58%   65.42%
JP2    42.67%   57.33%
JP3    45.91%   54.09%
JP4    57.89%   42.11%
JP5    50.37%   49.63%
JP6    23.14%   76.86%
JP7    15.62%   84.38%
JP8    62.50%   37.50%

Miller was definitely a slight notch up from the first three. How much of that is the lack of a third choice versus some other consideration I couldn’t say, but you can see it in the numbers.

I’ll get into it a bit more in the next post when we look at the higher-scoring Republicans, but my sense is that these three Dems, plus Beto, received some crossovers. Beto and Collier and Garza had enough money to at least run some ads, while Hays was still running against perhaps the highest-profile (read: got the most negative news for his ridiculous actions) incumbent after those three. We have definitely seen races like this, certainly in elections going back to 2016 – Hillary versus Trump, Biden versus Trump, Beto and the Lite Guv/AG/Ag Commish triumvirate this year and 2018. We saw it with Bill White in 2010, too – as I’ve observed in the past, White received something like 300K votes from people who otherwise voted Republican. That’s a lot! Democrats can persuade at least some Republicans to vote for their statewide candidates, but only under some conditions. If we can get the baseline vote to be closer, that could be enough to push some people over the top. We’re still working on the first part of that equation.

Like I said, I’ll get into that a bit more in the next post. Looking at what I’ve written here, I need to do a post about third party votes, too. Let me know what you think.

More on the post-marijuana decriminalization referendum conflict

The Trib takes a long look.

The fight in several Texas cities to decriminalize marijuana has entered a new phase, as some city leaders have rebuffed voter-approved rules that largely end criminal enforcement against having small amounts of the substance.

Last month, residents in Denton, San Marcos, Killeen, Elgin and Harker Heights overwhelmingly approved ballot measures that sought to ban arrests and citations for carrying less than 4 ounces of marijuana in most instances. They also approved new rules blocking cities from funding THC concentration tests, plus removing marijuana smell as a probable cause for search and seizure in most cases.

Winning over voters was just half the battle.

Since then, organizers behind the ballot questions in some cities have clashed with their city and county leaders who are tasked with putting the new laws in place, as well as law enforcement. Those officials have said the effort violates state law and hinders police officers.

The battle has been the toughest in Harker Heights, a town of 33,000 about 55 miles southwest of Waco. Despite the proposition winning more than 60% of the votes, the City Council decided to repeal the ordinance just two weeks later. City Manager David Mitchell said in a subsequent letter that the decision to decriminalize should be left to the state.

For Harker Heights residents who supported decriminalizing marijuana, the repeal is a stinging show of disrespect for their exercise of democracy.

“I don’t do any kind of drugs nor does my wife, but we’re here for the vote,” said Brian Burt, who casted his ballot for the proposition.

“A vote is a vote,” Alexandra Burt chimed in. “We are also aware that minorities disproportionately take the brunt of the law, so it is time for that proposition to go through.”

To force the City Council’s hand, the Burts and hundreds of other residents backed a new petition by Ground Game Texas, a progressive group that co-led the decriminalization campaign, to put the council’s decision to repeal on the May ballot and revive the ordinance in the meantime.

Julie Oliver, the group’s executive director, said the council’s decision to revoke a popular choice by voters has backfired.

“Shutting down someone’s vote is ill-advised, so this has really brought the community together,” she said.

Organizers across the state facing similar pushback also say they would prefer the Texas Legislature to pass laws that would decriminalize or even legalize marijuana — though they acknowledge how unlikely that is given the state’s conservative power structure.

“We can all see the way that this country is heading, state by state, but it looks like Texas is going to be one of the last,” said Deb Armintor, a Decriminalize Denton organizer and a former City Council member who championed decriminalization during her two terms. “There’s no point in cities waiting.”

[…]

Several cities and towns have since followed. Elgin, a city of about 10,500 people that sits just east of Austin, voted to decriminalize by almost 75%. Its council has made the least amount of noise in putting the ordinance in place.

Other city and county officials, however, have raised concerns about a statute from the Texas Local Government Code that says municipal bodies like city councils and police departments “may not adopt a policy under which the entity will not fully enforce laws relating to drugs.”

Last month, Republican Bell County District Attorney Henry Garza cited it when asking the police chief of Killeen, where close to 70% of voters favored decriminalization, to reverse his order telling officers to follow the vote. Following a pause, Killeen City Council approved the ordinance on Dec. 6 after removing the section banning officers from using marijuana smell as probable cause for search and seizure.

“The amendment was not preferable but now our residents do not have to fear an arrest that will affect their employment opportunities, education opportunities and housing opportunities,” said Louie Minor, a Bell County commissioner-elect who worked on both the Killeen and Harker Heights campaigns.

More recently, Republican Hays County Criminal District Attorney Wes Mau requested an attorney general opinion about the ordinance’s enforceability over similar questions. Mano Amiga — the group co-leading the effort in San Marcos — immediately pushed back, as voters had passed the proposition by almost 82% and the City Council already approved it in November.

Mau said he has “no plans to file a lawsuit” in his last month of office. His Democratic successor Kelly Higgins supports decriminalization.

“The Attorney General cannot overturn the referendum, nor am I asking him to,” Mau said in a statement to The Texas Tribune. “But an opinion as to whether the ordinance is enforceable may be helpful to the City moving forward.”

In the North Texas suburb of Denton, where voters approved decriminalization by more than 70%, the City Council has also certified the initiative, thus enacting the ordinance. But organizers worry about its enforcement because City Manager Sara Hensley has opposed implementing parts of it due to similar issues. Organizers responded in November with a memo arguing that Hensley doesn’t have policymaking authority and that the city has discretion to enact policies conserving scarce resources.

See here and here for some background. I take the concerns of the opponents seriously, even as I would have voted for these measures myself. I expect the Legislature will respond, most likely in a disproportionate matter, to these referenda if they are not at least modified by those city councils. I also think this is a fight worth having, in the courts as well as at the ballot box. There really is a significant disconnect between public opinion and legislative action on this matter. So far, too many people who disagree with the Republicans in general and the Lege/Greg Abbott/Dan Patrick in particular have nonetheless voted for them, or not shown up to vote against them. The point here is to try to change some minds of the former and motivate more of the latter. At the very least, that means seeing this through, whatever happens along the way. I do think the pro-decriminalization side will eventually prevail, but who knows how long that may take. Letting up won’t make it happen any sooner.

Hays County DA questions San Marcos marijuana ordinance passed by voters

Add this to the pile.

San Marcos voters passed a marijuana ordinance this November that would halt San Marcos police from arresting people for low-level marijuana offenses. Now, the Hays County district attorney is looking to Texas leaders for their opinion on the ordinance.

Hays County District Attorney Wes Mau sent a letter to Texas Attorney General Ken Paxton requesting his opinion on San Marcos’ marijuana ordinance on Thursday, December 8.

“I am asking for the opinion because San Marcos officials are justifiably concerned that if the ordinance is legally or constitutionally void, then if the city disciplines officers for enforcing the marijuana law, as the ordinance requires, the city could be liable,” Mau said to MySA in an email.

In the letter, Mau noted that the ordinance would attempt to stop officers from using the smell of marijuana as probable cause.

“It is inconsistent with state and federal law for an ordinance to declare that the odor of marijuana may never be used as probable cause for a search or seizure when, as a matter of law, there are certainly times when the odor of marijuana constitutes probable cause under state or federal law,” Mau said in the letter. “The determination of probable cause is to be made on a case-by-case basis by the judicial branch.”

[…]

The ordinance went into effect on November 17 and covers possession of up to four ounces, but doesn’t cover THC oil and only applies to the San Marcos Police Department.

Mau said in the email to MySA that the local government code and the Texas constitution appear to prohibit an ordinance like the one that got passed.

“The attorney general cannot overturn the referendum, nor am I asking him to, but an opinion as to whether the ordinance is enforceable may be helpful to the city moving forward,” Mau said in the email to MySA.

I think this is a slightly different case than what we saw in three other cities that passed similar referenda only to see their City Councils pass laws modifying or nullifying them. If this is a valid concern, then it makes sense to seek an opinion rather than let the situation play out and deal with the inevitable lawsuits later. I presume that if the AG opinion aligns with this concern, then San Marcos’ city council will have a decision to make about that ordinance. I’ll keep an eye on this, because the likelihood that there will be more of these referenda passed by voters around the state is very high, and the same question would apply in those places as well. Reform Austin has more.

Abbott is now attacking immigration-focused non-profits

Always be finding a new enemy, that’s the motto.

Gov. Greg Abbott called Wednesday for the state to investigate whether nonprofit organizations have helped people enter the country illegally, adding another talking point to his border hawk arsenal and another headache to humanitarian relief groups that help migrants in Texas.

Abbott made his request in a letter to Attorney General Ken Paxton in which he cited the increased number of migrants expected at the border once Title 42 — a federal public health order issued near the start of the pandemic that officials have used to turn away migrants at the border — comes to an end in a few days at a time of record migrant crossings. Earlier this week, 1,500 people waded across the low waters in the Rio Grande and into El Paso in one crossing, stressing the city’s limited resources to deal with migrants.

Without citing any evidence, Abbott said he had received reports that nongovernmental organizations — a term that generally refers to nonprofit, humanitarian groups — “may be engaged in unlawfully orchestrating other border crossings through activities on both sides of the border, including in sectors other than El Paso.”

“In light of these reports, I am calling on the Texas Attorney General’s Office to initiate an investigation into the role of NGOs in planning and facilitating the illegal transportation of illegal immigrants across our borders,” Abbott wrote, adding that he is ready to “craft any sensible legislative solutions [Paxton’s] office may propose that are aimed at solving the ongoing border crisis and the role that NGOs may play in encouraging it.”

Abbott’s office did not respond to a question asking what reports his office was citing. Fox News reported Monday that Mexican police had escorted 20 buses from other parts of Mexico to nongovernmental organizations at Mexican border cities. The outlet reported that the migrants then walked from the nongovernmental organizations and crossed illegally into El Paso.

Texas does not have jurisdiction over Mexican nongovernmental organizations, and the reporting did not allege any improper action by a U.S.-based nongovernmental organization.

Still, nonprofit groups working to help migrants on the border say Abbott’s call for investigations could make their jobs harder. The move drew an immediate rebuke from Democratic lawmakers and local officials.

“Governor Abbott’s decision to investigate NGOs that are providing humanitarian care for migrants is shameful and intended to intimidate and instill fear in non-profit and faith-based organizations that exemplify the values we should all aspire to,” U.S. Rep. Veronica Escobar, D-El Paso, said in a statement. “Most border NGOs that work tirelessly on the border help provide temporary shelter, food and hospitality to migrants, most of whom will be awaiting adjudication of their asylum claims with sponsors they have in different parts of the country. They have been doing this work for decades and deserve our praise, not persecution.”

Dylan Corbett, executive director of the El Paso-based Hope Border Institute, said in a statement that Abbott’s language was “alarming and an unequivocal attempt to intimidate humanitarian organizations working on the front lines.”

“This is a moment for border communities to come together to meet a humanitarian challenge. We need the support and collaboration of the government at all levels, not political grandstanding that dangerously approaches criminalizing Good Samaritans,” Corbett said.

In Texas, nonprofits that aid migrants play a crucial role. Once migrants are released by federal officials into border cities, which frequently do not have the resources to deal with the large number of people crossing the border, these groups help temporarily house the migrants and help them find transportation to other parts of the country. In many areas, immigration officials bring migrants to nonprofit groups once they have already been processed by the federal government and are free to be released.

[…]

But without the nonprofits’ work, border cities would likely have more migrants roaming the streets without any way to move on if they’re trying to reach a different destination where they may have family members or a support group to help them until their immigration process is finalized. Abbott has even partnered with some nonprofit groups to carry out his policy of busing migrants to Democrat-led cities like Washington, D.C.New YorkChicago and Philadelphia.

Nothing quite captures the zeitgeist of the modern “conservative” movement like an old white guy wildly overreacting to some bullshit story he just saw on Fox News. I bet Abbott was a top-notch chain email forwarder back in the day.

I make dumb jokes about stuff like this because honestly I’m not sure what else I can do right now. I’d love to hear some good strategic ideas because I’m fresh out, and the next election is obviously too far away to be of any importance right now. Maybe there was hope for some kind of action at the federal level in the lame duck section, but that’s not looking great right now either.

The immigration framework proposed by two bipartisan lawmakers that would have passed permanent relief for young undocumented immigrants in exchange for harsh border measures has reportedly failed.

Thom Tillis and Kyrsten Sinema “did not strike a deal that would have been able to secure the necessary 60 votes in the evenly divided Senate during the lame-duck session,” congressional officials told CBS News. John Cornyn “and other members of GOP leadership said there was scant Republican support for the plan,” CNN’s Priscilla Alvarez tweeted Wednesday.

The termination of the Deferred Action for Childhood Arrivals (DACA) program through right-wing courts is not a matter of if, its a matter of when, and passage of a deal during the lame duck represented the last chance to pass some sort of relief before an anti-immigrant Texas judge issues his decision. Kevin McCarthy has already promised he’ll pass no humane relief, as part of his campaigning to become speaker. That includes a corrupt bargain targeting Department of Homeland Security Sec. Alejandro Mayorkas for impeachment.

The immigration proposal came as young immigrants (as well as the farmworkers who feed America) rallied for legislative action before the current congressional term ends in January, and was a sweet-and-sour deal attempting to garner the 10 Republicans needed to overcome the Jim Crow filibuster.

The sweet: Relief for DACA recipients, who for five years have been watching the program be attacked by Republicans, both at the federal government level and in the courts. The sour: Harsh border enforcement measures, including an extension of Stephen Miller’s anti-asylum Title 42 policy for at least another year. CNN had also reported increased border security funding, anywhere from $25 billion to $40 billion, on top of the billions that border agencies already get. But apparently, none of that was enough to convince 10 members of the GOP caucus, according to Cornyn.

Cornyn, since we’re already discussing him, once made a laughable claim in a campaign ad that he’s supported legalization for undocumented immigrant youth, and that he’s actually been fighting for them behind the scenes. But given a real, high-stakes chance to do something about, like right now during the lame duck session and as an end to the DACA program is inevitable, he’s done nothing but throw cold water on the proposal.

It’s not hard to boil all this down to Republicans just not wanting to do anything about DACA recipients—even when presented with the kind of border measures they love—because they want to keep using immigrants as a political tool.

I guess nothing is truly dead until they all adjourn, but this is where we are right now. And as long as the Republicans feel like they’re doing better with the system remaining broken, why should they do anything different? The Chron and Daily Kos have more.

Ken Paxton’s hatred of LGBTQ+ people continues unabated

Item #1: Texas attorney general’s office sought state data on transgender Texans.

The only criminal involved

Employees at the Texas Department of Public Safety in June received a sweeping request from Republican Attorney General Ken Paxton’s office: to compile a list of individuals who had changed their gender on their Texas driver’s licenses and other department records during the past two years.

“Need total number of changes from male to female and female to male for the last 24 months, broken down by month,” the chief of the DPS driver license division emailed colleagues in the department on June 30, according to a copy of a message obtained by The Washington Post through a public records request. “We won’t need DL/ID numbers at first but may need to have them later if we are required to manually look up documents.”

After more than 16,000 such instances were identified, DPS officials determined that a manual search would be needed to determine the reason for the changes, DPS spokesperson Travis Considine told The Post in response to questions.

“A verbal request was received,” he wrote in an email. “Ultimately, our team advised the AG’s office the data requested neither exists nor could be accurately produced. Thus, no data of any kind was provided.”

Asked who in Paxton’s office had requested the records, he replied: “I cannot say.”

[…]

Public records obtained by The Post do not indicate why the attorney general’s office sought the driver’s license information. But advocates for transgender Texans say Paxton could use the data to further restrict their right to transition, calling it a chilling effort to secretly harness personal information to persecute already vulnerable people.

“This is another brick building toward targeting these individuals,” said Ian Pittman, an Austin attorney who represents Texas parents of transgender children investigated by the state. “They’ve already targeted children and parents. The next step would be targeting adults. And what better way than seeing what adults had had their sex changed on their driver’s licenses?”

[…]

The records obtained by The Post, which document communications among DPS employees, are titled “AG Request Sex Change Data” and “AG data request.” They indicate that Paxton’s office sought the records a month after the state Supreme Court ruled that Paxton and Abbott had overreached in their efforts to investigate families with transgender children for child abuse.

Paxton’s office bypassed the normal channels — DPS’ government relations and general counsel’s offices — and went straight to the driver license division staff in making the request, according to a state employee familiar with it, who said the staff was told that Paxton’s office wanted “numbers” and later would want “a list” of names, as well as “the number of people who had had a legal sex change.”

During the following two months, the employee said, the DPS staff searched its records for changes in the “sex” category of not only driver’s licenses but also state ID cards available from birth, learner’s permits issued to those age 15 and up, commercial licenses, state election certificates, and occupational licenses. The employee spoke on the condition of anonymity to avoid retaliation for describing internal state discussions.

DPS staff members compiled a list of 16,466 gender changes between June 1, 2020, and June 30, 2022, public records show. In the emails, DPS staff members repeatedly referred to the request as coming from the attorney general’s office as they discussed attempting to narrow the data to include only licenses that had been altered to reflect a court-ordered change in someone’s gender.

DPS staff members did spot checks on the data, examining records that included names of specific individuals, according to records and the state employee familiar with the inquiry. But it was hard to weed out driver’s licenses that had been changed in error, or multiple times, or for reasons other than gender changes.

“It will be very difficult to determine which records had a valid update without a manual review of all supporting documents,” an assistant manager in the DPS driver’s license division wrote in an email to colleagues on July 22.

On Aug. 4, the division chief emailed staff members, “We have expended enough effort on this attempt to provide data. After this run, have them package the data that they have with the high level explanations and close it out.” On Aug. 18, a senior manager emailed to say a data engineer had “provided the data request by the AG’s office (attached).”

Last month, The Post made a request to Paxton’s office for all records the attorney general’s office had directed other state offices to compile related to driver’s licenses in which the sex of the driver was changed, as well as related emails between Paxton’s office and other state agencies.

Officials indicated that no such records existed.

“Why would the Office of the Attorney General have gathered this information?” Assistant Attorney General June Harden wrote in an email to The Post, later adding, “Why do you believe this is the case?”

If it did, Harden said, any records were probably exempt from release because of either attorney-client privilege or confidentiality.

Marisol Bernal-Leon, a spokesperson for the attorney general’s office, later emailed that the office “has reviewed its files and has no information responsive to your request” for either records it had requested from DPS or emails between the attorney general’s office and DPS.

Separately, DPS provided The Post with a half-dozen documents spanning three months that referenced the request by Paxton’s office.

When The Post shared copies of the records that had been provided by DPS, Assistant Attorney General Lauren Downey noted that “none of the records provided by the Texas Department of Public Safety are communications with the Office of the Attorney General. Our response to your request was accurate.”

Downey did not reply to questions about why the DPS emails refer to the request as originating from the attorney general. Paxton’s office has yet to respond to another public records request for any records of its contact with DPS concerning driver’s license changes via means other than email, including phone calls, video meetings and in-person exchanges.

It’s the brazen lying about it that really kicks this up a notch. I can’t think of a good reason for a public official to need this data, or to bypass the normal channels for requesting it, but there are plenty of bad reasons for it. Because data tends to be messy, you can see how potentially thousands of people who were not Paxton’s intended targets could have been caught up in whatever malevolent scheme he cooked up for them. In a way it’s too bad this came to light before that could have happened, because the harassment of such a large number of people might have been an actual scandal that could damage him. Now it’s just another unfair MSM hit piece that Paxton’s enablers can ignore.

And in case that wasn’t enough, we also got news item #2: Texas fights federal rule that would outlaw LGBTQ discrimination in state adoptions and foster care.

Attorney General Ken Paxton is suing the federal government to preserve Texas’ ability to include religious groups that won’t place kids with same-sex couples in the state’s adoption process without losing federal funding.

With his lawsuit filed Monday in federal court in Galveston, Paxton continued a yearslong, cross-country legal fight over anti-discrimination rules for adoption and foster programs drafted under the Obama administration that languished under former President Donald Trump and have never been enforced.

The rule on Sexual Orientation and Gender Identity Discrimination, known as the SOGI rule, prohibits recipients of federal funds for adoption and foster programs from discriminating on the basis of age, disability, sex, race, color, national origin, religion, gender identity, sexual orientation or same-sex marriage status.

A Texas law passed in 2017 allows religious organizations that contract with the state to refuse to work with LGBTQ couples who are seeking to foster or adopt. The law requires the state to ensure there are other providers to work with LBGTQ children or families who are refused help by a religious provider, although there is no specific process for ensuring that happens.

Losing federal funding would be a major blow for Texas’ foster care budget. Federal money accounts for nearly a quarter of the $550 million the state spends on residential care each year, and another $58 million supports case work for foster children who qualify for the funds, according to the attorney general’s complaint.

[…]

The anti-discrimination rule has been the subject of court battles. In 2019, Texas joined the Archdiocese of Galveston-Houston to sue the federal government over the rule, arguing it would prevent the religious group from becoming a provider of child welfare services. Shortly after the suit was filed, the Trump administration announced a rollback of the rule.

But Paxton is now seeking to have the rule thrown out preemptively as other groups are suing to compel its enforcement.

[…]

Bryan Mares, the government relations director at the National Association of Social Workers Texas, said the state law allowing religious providers to refuse services to LGBTQ couples creates a supply issue for the LGBTQ children in the foster system who need affirming homes.

“It makes it much more difficult to find families who might already identify as part of the LGBTQ community to bring children that are in the system into their home,” Mares said of the law. “It really just impedes our ability to prioritize LGBTQ youth placements into homes where they are being supported in a way that they need.”

A 2018 analysis of Texas licensed child-placing agencies by the Center for American Progress found that nearly half of them had statements of faith listed on their websites, but only 10% had expressed specific willingness to work with LGBTQ foster and adoptive parents. “Given this landscape, and the religious exemptions and lack of legal protections … prospective parents may understandably become discouraged about finding a welcoming agency and choose to abandon their efforts,” the report concluded.

Pretty sure that’s the intent. I’ve run out of accurate descriptors for Paxton and his shameless hate. At this point, I don’t know what can be done to stop him. He certainly acts as though there is nothing in his way and no possible consequences for anything he does.

SCOTx allows provisional votes to be counted

Good.

The Texas Supreme Court ruled Tuesday that Harris County can include about 2,100 ballots cast during an extra hour of Election Day voting when officials certify the midterm results. But the state’s highest civil court also ordered Harris County to determine whether those late-cast ballots would affect the outcome of any races — and kept alive Attorney General Ken Paxton’s challenge to counting them.

It’s a win, at least temporarily, for Harris County officials in a fight against Paxton’s attempt to discard thousands of midterm ballots as election results are set to be certified Tuesday.

In an interview Tuesday, Harris County Attorney Christian D. Menefee said that about 2,100 provisional ballots cast after 7 p.m. Election Day should be counted. Those ballots were cast after a district court judge ordered Harris County polling places to remain open an extra hour because many locations had opened late that morning.

“The votes that were cast during that time period pursuant to a court order are still perfectly legal. And there’s nothing in the law that prohibits them from being counted,” Menefee said. “So our perspective is that those provisional ballots are no different than any other provisional ballots — they are to be counted.”

Harris County officials argued as much in a filing to the Texas Supreme Court on Tuesday. That came one day after Paxton petitioned the Supreme Court to toss the late-cast ballots.

[…]

In at least one race, the provisional ballots could impact the outcome. After provisional and mail-in ballots were counted, the incumbent for Harris County’s 180th Criminal State District Court, DaSean Jones, went from trailing Republican Tami Pierce to leading by less than 500 votes, the Houston Chronicle reported.

See here for the background and here for the court’s order. It’s just one page long, and the gist of it is this:

In this mandamus proceeding, which challenges Harris County election officials’ processing of the “later cast votes,” we grant the following temporary relief under Rule of Appellate Procedure 52.10(b):

  • Respondents are directed to conduct the canvass of the November 2022 election as required by the Election Code.
  • As part of the canvass, respondents are ordered to separately identify in the vote tabulations the number of “later cast votes” for each candidate in each race and for or against each proposition, so that candidates, the parties, and this Court may ascertain whether the “later cast votes” would be outcome-determinative and so that the parties can assess the extent to which further litigation is warranted.
  • Respondents are ordered to provide the Court with a copy of the canvass results, including the separately tabulated “later cast votes,” as soon as they are available.

The petition for writ of mandamus remains pending before this Court.

I presume that last line is there in the event the provisional ballots have an effect on the 180th Criminal District Court race, in which event (again, I presume) the merits of the arguments will have to be addressed. Lawyers, please feel free to correct me as needed. The only other race that is close enough to be even theoretically affected by the provisional ballots is the County Criminal Court #3 race, where Porsha Brown trails by the even smaller margin of 267 votes. However, given that the provisional votes cast on Election Day favored Democrats, it’s even less likely for that race to be affected, and it would be impossible for both of them to be in a position to change.

I maintain as I said yesterday that it is highly unlikely that the 180th Court will be affected. If you throw out all of the Election Day provisional ballots, DaSean Jones still leads by 89 votes. There are apparently 2,100 provisional Election Day ballots in question, out of 2,555 total E-Day provisionals and 2,420 that included a vote in this race. The odds that Jones could lose the entire 360 vote net he got from the E-Day provisionals plus another 90 votes in this subset of the total ballots just strike me as extremely remote. I wish the stories that have been published about this would go into more detail about this as I have done – yes, I know, math is hard, but you could at least use “highly unlikely” language to offer some context. By the time this runs in the morning we’ll know what the official canvass says, and from there we’ll see if an election challenge will follow.

The Chron story, from a bit later in the day, has more details.

While the provisional ballots are included in the official count certified by Commissioners Court, the Supreme Court also is ordering the county to include in the final canvassed results a separate report that details the votes of the “later cast votes for each candidate in each race.” That way, candidates can determine whether this group of ballots would change the outcome of their race and “assess the extent to which further litigation is warranted.”

Given that Harris County voters cast more than 1.1 million ballots overall, the 2,000 provisional ballots have little chance of changing most election outcomes. However, a handful of candidates in tight races may consider legal challenges over election results.

“At this point, we do not anticipate that it impacts the outcome of any races,” Harris County First Assistant County Attorney Jonathan Fombonne said. “Of course the [Texas Supreme Court] proceedings remain pending and the court could rule on something. And of course there can always be election contests. Many of those races were close, and it wouldn’t surprise us to see candidates filing election contests.”

[…]

On Election Night, the Texas Organizing Project, Texas Civil Rights Project and ACLU of Texas obtained a court order from a judge requiring all Harris County polling locations to extend voting hours until 8 p.m. after the groups argued in a lawsuit that late openings at some polling locations prevented some residents from voting.

Voters who were in line by 7 p.m. were able to vote normally, while those who arrived between 7 and 8 p.m. were allowed to cast provisional ballots.

That evening, in quick succession, Paxton’s office filed its writ of mandamus asking the Texas Supreme Court to vacate or reverse the court order, and the Supreme Court responded by staying that order, saying votes cast after 7 p.m. “should be segregated,” without specifying whether they must be excluded from the final count.

Because the proceedings are still ongoing, it is too soon to know whether the ability to extend voting hours in the future could be impacted.

“The court hasn’t specified whether or not that’s legal,” Fombonne said. “The proceedings are pending. There may be an opinion in the future that addresses that question.”

Hani Mirza, legal director of the Texas Civil Rights Project’s voting rights program, was part of the team that sought the court order extending voting hours this year. The group also filed a lawsuit in 2018 obtaining a similar court order in Harris County. Mirza said in the case four years ago, Paxton’s office did not ask the Texas Supreme Court to intervene.

Nor did Paxton’s office intervene this year when voting hours were also extended by one hour in Bell County because of early morning glitches with check-in systems. The Bell County attorney confirmed last week that a court order there had not been challenged by the Attorney General’s Office or another party.

“It doesn’t make any sense outside of, obviously, cynical partisanship and these targeted actions against Harris County, the most diverse county in the state” Mirza said.

That sort of addresses my question above about the last line in the SCOTx order. We’ll just have to keep an eye on that. The election has been certified by Commissioners Court, which if nothing else avoids the drama of any further delays. As to who might file a contest, again we’ll have to see. Seems like a lot of fuss for something that is unlikely to go anywhere, but who knows.

Paxton sues to prevent some provisional votes from being counted

On brand. Always, always on brand.

Best mugshot ever

The Texas Attorney General’s office is attempting a last-minute intervention to toss out 2,000 provisional ballots before a Harris County Commissioners Court meeting Tuesday to certify the November election.

The ballots in question were cast during a one-hour period on Nov. 8.

“Although the ballots were processed, Harris County now intends to include them in the final vote canvass,” Christopher Hilton, chief of the Attorney General’s office general litigation division said Monday. “We have never agreed that these ballots can be part of the final election results, and this afternoon we’re going to ask that the Texas Supreme Court rule that these late-cast votes should be excluded as Texas law requires.”

The petition was filed Monday afternoon. Hilton declined to comment on why the office did not ask for the ruling sooner.

“A court of law ordered Harris County to keep the polls to open for an additional hour on Election Day and people across our county cast their ballots during that time,” Harris County Attorney Christian Menefee said in a statement. “My office is going to do everything we can to protect every single vote that was cast. Republican, Democrat, or Independent — no eligible voter should have their ballot thrown out because the Attorney General can’t accept the results of Harris County elections.”

[…]

According to emails shared with Chronicle, parties including the Texas Attorney General’s office, Harris County Attorney’s office, Texas Civil Rights Project, Harris County Republican Party and Harris County Democratic Party all signed off an agreement on Nov. 11 for processing the provisional ballots.

First Assistant County Attorney Jonathan Fombonne wrote the Harris County Attorney’s office was approving the agreement “based on the understanding that the Texas Supreme Court’s order does not prohibit the tabulating of those votes as long as the ballots themselves remain segregated.”

Kimberly Gdula, deputy chief of the Attorney General’s office general litigation division, signed off on the agreement in an email: “The State is good with this.”

However, Sunday evening, two days before the commissioner’s court meeting to certify the election results, Hilton, the chief of the Attorney General’s office general litigation division, sent an email to the parties questioning the legal basis for including the provisional ballots cast after 7 p,m. in the final count and seeking clarification “so that the parties can pursue any legal remedies, if necessary.”

In a statement Monday, Harris County Attorney’s office spokesperson Roxanne Werner said: “Representatives from the Attorney General’s office and the Harris County Republican Party asked for the language describing that process to be removed from the agreed order, leaving Harris County to process and count the late ballots as they would other provisional ballots while ensuring they were kept segregated. All parties were put on notice that the votes would be counted.”

“This 11th-hour ask to throw those votes away should not be tolerated, especially considering the State rejected the County’s offer to hold off on counting these votes while it sought clarification from the Supreme Court,” Werner added.

See here and here for some background about the litigation that allowed polling locations to remain open until 8 PM. As the story notes, Bell County had similar issues with some polling locations and also got a court order allowing locations to remain open until 8 PM, which the AG’s office has not opposed. The main takeaway here is that not only can you not trust anything Paxton says, you also can’t trust anything his office says, even if they sign their names to it. No wonder he’s having a hard time retaining staff.

As a reminder, and as you can see from the report released by the Elections Office on the 18th, DaSean Jones netted 360 votes from the provisional ballots cast on Election Day. However, he is leading by 449 votes, so if you threw out all of the E-Day provisionals, he would still be ahead by 89 votes in his race. He had already overcome the 165-vote deficit he had in earlier reports thanks to the counting of cured mail ballots, which had gained him 259 votes.

It’s actually not clear from the story how many ballots we’re talking about. The story refers to “2,000 provisional ballots”. I can’t tell if this is just using a round number because exact figures are confusing or if this is the exact figure. There were 2,555 provisional ballots cast on Election Day, of which 2,420 included a vote in the DaSean Jones – Tami Pierce race. I guess it’s theoretically possible that of the provisional E-Day ballots that were specifically cast by people who got in line after 7 PM (because if you were already in line you were always allowed to vote), Jones had a net advantage of at least 450 over Pierce. To say the least, that would be an extraordinary circumstance. (*)

I point this out to say that barring something truly weird, Paxton’s bad faith filing will not – can not – have any effect on any race. That doesn’t change the fact that his filing is trash and should be rejected by SCOTx on the grounds that these people deserve to have their votes counted. The remedy for having to vote late because of voting location problems is to extend voting hours to accommodate those that were affected. Just like what happened in Bell County (won by Greg Abbott 59.04% to 39.52%, in case you were curious), which the AG has accepted as fact. I for one don’t see any difference between the two.

(*) I did search on the Supreme Court webpage for Paxton’s mandamus filing, which might have been more specific and thus answered my questions. Looking on the Electronic Filings search, I think this case is number 22-1044. However, the hyperlink for that case didn’t work when I tried it, and searching for the case via that number returned no results. If you can do better than I did, or if the webpage eventually fixes itself, let me know.

UPDATE: The Trib story also references “2,000 ballots”, which does not help clear up my confusion. They also refer to the overall total of about 4,000 provisional ballots – the actual overall total is 4,333, of which 1,778 were cast early and are clearly not at issue. So, until I hear otherwise, it is my contention that these provisional ballots are not enough to alter any race’s result, and also that this doesn’t matter because all of the ballots should be counted. We’ll see what the Court says.

What AG “task force”?

Who knows?

Best mugshot ever

The fact that Paxton – who helped lead the charge to overturn the 2020 national election results and promoted false claims that it was stolen – now planned to send people from his office to monitor Harris County elections was seen as an intimidation tactic by local Democrats and non-partisan voting rights organizations. Several implored the U.S. Department of Justice’s Civil Rights Division to send federal election monitors to watch the state election monitors, a request the federal government has since granted.

But for all the attention on the effort in the lead up to Election Day, very little was actually known about it. Who was on the task force and how big was the operation? What exactly would they be doing? Where in Harris County would they be stationed? Here’s what the Chronicle was able to learn.

[…]

Has anyone in Harris County seen or interacted with members of Paxton’s task force?

Spokespeople for the Republican and Democratic parties in Harris County reached out to their teams that manage election workers to ask this same question. They said nobody on their team had reported any interactions from Paxton’s office yet.

“Imagine they’re here, but no reports that I’ve heard yet,” said Genevieve Carter, the Republican Party spokesman in Harris County, in a text message.

“Just checked with our elections folks,” Elisha Rochford, of the Democratic Party in Harris County, wrote in a text. “We have not heard anything about the AG’s office task force being in HC. We haven’t had any election workers report seeing anyone from AG.”

Alan Vera, a well-known conservative activist who has made numerous complaints about election problems in Harris County, said “I have not heard from anyone.”

Paul Bettencourt, a Republican state senator from Houston who has often complained about how Harris County administers elections, said he wasn’t aware of a team being sent to Houston from Paxton’s office. He said he would make some calls, but didn’t learn anything more. He said he believes the AG’s office is working with the Secretary of State’s office “remotely.”

Does the task force actually exist?

The Chronicle wasn’t able to find any evidence of a team from the attorney general’s office dispatched to Harris County.

See here, here, and here for the background. I don’t know if there was ever supposed to be a real “task force”. Maybe it was but it failed to materialize due to incompetence, laziness, or a lack of employees. Maybe it was always a stunt. Maybe it was 11-dimensional chess intended to mess with our minds and get the feds all scurrying about, in which case, mission accomplished, I guess. All I know is that the absence of Ken Paxton is always better than the alternative, so I’m going to chalk this up as a win.

Justice Department agrees to send election monitors

Good.

The U.S. Department of Justice announced Monday it will send election monitors to three Texas counties — Harris, Dallas and Waller — to keep an eye on local compliance with federal voting rights laws on Election Day.

Monitors from the Justice Department are regularly deployed across the country for major elections, with Texas counties making the list for at least the past decade under both Democratic and Republican administrations. The three Texas counties are among 64 jurisdictions in 24 states that will have a federal presence Tuesday.

The department did not specify how it made its selections for monitoring, though Harris and Waller counties have made the list in the last four presidential and midterm elections. Harris and Dallas are the state’s largest and second-largest counties. Rural Waller County is home to Prairie View A&M University, a historically Black campus.

Voters can send complaints on possible violations of federal law to the DOJ through its website or by calling 800-253-3931. Polls open at 7 a.m. on Election Day.

See here and here for the background. When Ken Paxton and his minions are involved, you need all the help you can get. And while the early voting period was pretty calm, we know there’s a lot of bad stuff lurking. I feel better having these folks in the city. Politico and the Press have more.

The Ken Paxton problem is bigger than Ken Paxton

It’s that there’s just no accountability, barring the election result we’re all desperately hoping for.

Best mugshot ever

In the wake of the 2020 presidential election, Republican officials around the country have been giving increasing attention and resources to investigating election crimes. Most have focused on the alleged wrongdoing of voters.

But Texas Attorney General Ken Paxton is also working a different angle: His office has been criminally investigating the people who help run elections.

Over the past two years, Paxton’s office opened at least 10 investigations into alleged crimes by election workers, a more extensive effort than previously known, according to records obtained by ProPublica. One of his probes was spurred by a complaint from a county GOP chair, who lost her reelection bid in a landslide. She then refused to certify the results, citing “an active investigation” by the attorney general.

In at least two of the cases, Paxton’s office unsuccessfully tried to indict election workers, attempts that were first reported by the Austin American-Statesman. In the remaining eight investigations identified by ProPublica, it is unclear just how far the probes went. As of mid-October, none of the cases resulted in criminal charges.

The story covers the ordeals of Dana DeBeauvoir and Rob Icsezen, both of whom Paxton tried to indict for incidents that any unbiased observer would have taken to be at worst honest misunderstandings. He even pursued those charges in neighboring Republican counties instead of the counties where the “crime” allegedly happened. Put aside for the moment the mess and dysfunction going on in that office, and the alleged criminality of Paxton himself. The office of Attorney General is traditionally one that pursues civil cases, not criminal ones, yet the guy in charge is off pursuing quixotic political indictments while letting human traffickers go free because they can’t keep track of witnesses. I’m old enough to remember when that sort of thing would have been a huge scandal, the kid of screwup that might force an official to resign because they had lost the faith of the public.

Not anymore, though. Short of it becoming a national story, there’s no way to focus enough attention on that kind of scandal to make it become an issue for anyone but the most plugged-in news-watcher. Republican voters don’t care, and neither do Greg Abbott or Dan Patrick or the Republicans in the Legislature, who at least nominally have some oversight of the Attorney General. At this point, Ken Paxton could murder someone on Sixth Street, and I doubt more than a handful of Republican legislators would call for him to step down. The only way that this Legislature will become interested in that oversight role will be if Rochelle Garza wins, at which point they’ll become very invested in having a say over what the AG does and does not do. Ken Paxton is what happens when people with power believe, with complete justification, that they can act with impunity.

DMN\UT-Tyler: Abbott 50, Beto 44 (LV) – Abbott 47, Beto 44 (RV)

Pick your preference.

Republican Gov. Greg Abbott holds a 6 percentage point lead over Democratic challenger Beto O’Rourke as the race to the Nov. 8 election grinds toward the finish line, a poll released Sunday by the University of Texas at Tyler shows.

The poll of 973 likely voters contacted randomly Oct. 17-24 shows Abbott ahead 50% to O’Rourke’s 44%. When the field is expanded to registered voters, 1,330 of whom were contacted, Abbott’s lead shrinks to just 3 points.

The results differ from a recent poll by the University of Texas Politics project that showed the incumbent with a strong 11-point edge, and with one conducted by Beacon Research that was commissioned by the Democratic Policy Institute that showed just a 3-point difference in Abbott’s favor. But UT-Tyler’s findings are in line with several non-aligned polls conducted in late summer. The margin of error for the “likely voters” breakout is plus or minus 3.4 percentage points.

Moving down the ballot, Republican Lt. Gov. Dan Patrick was leading Democratic challenger Mike Collier 44%-35% among likely voters and Republican Attorney General Ken Paxton was ahead of Democrat Rochelle Garza 42%-38%. Like Abbott, Patrick and Paxton are seeking third terms.

The poll’s data is here. I appreciate the fact that they gave us both a likely voter and registered voter result – this pollster has done that in the past, but it wasn’t always presented in a way that made it clear. I also appreciate that this story mentioned other polls and where this one fit in rather than rely on the ridiculous language of this candidate or that losing or gaining ground when comparing one isolated poll result to another, different, poll result. Having context is always better than not having context.

These numbers look reasonable enough. Both Beto and Abbott get about the same amount of support from their own voters, with independents split evenly. Beto does well among Black (78-16) and Latino (59-36) voters while Abbott crushes with white voters (63-31). Of interest in the AG race, one possible reason for Rochelle Garza to be the top performer, is that she is at 47-33 among indies, a significant difference from the Governor’s race. That’s of a small sample of a single poll, so don’t put any actual weight on it, but I’ll file it away for later if it becomes relevant. Even with their LV sample, there were a lot of “don’t know” responses in the Lite Gov and AG races, so who knows what that means. I don’t know if we’re expecting any more poll data at this point – now that we have actual votes, polling becomes of less value – but for what it’s worth, this is where we are.

UPDATE: Forgot to mention that in their September poll, which was of registered voters, Abbott was leading 47-38.

Endorsement watch: Ash for Garza

You can say that again…

Here’s his opinion piece, which I hope gets picked up by some larger papers.

Rochelle Garza

My parents came to America from ex-Yugoslavia with no property or money. They had to learn American English and America’s customs. Like so many immigrants, they built a life in America for my brother and me. And they both became proud U.S. citizens.

Our family’s story of authoritarianism has informed nearly every aspect of my life. It propelled me into the profession of law, to safeguard the freedoms guaranteed by our Constitution. It compels me to represent people accused of violating those laws and who can’t afford an attorney. And it is why I am a Libertarian. I fight every day to ensure that the State does not overstep its authority, and to protect our freedoms.

That’s also why I decided to run for Attorney General of Texas. A democracy should offer choices. With only two major political parties on the ballot in an extremely important race, I entered this race to give Texans a third choice.

But on the eve of the election, giving Texans a third choice feels inadequate. The stakes are now simply too high for me to settle merely to be another option for Texans who, like me, love our state, love our country and value our freedoms.

I have thought long and hard how to say this, and I don’t say this lightly. Ken Paxton is the poster child for corruption and authoritarianism. And if he is allowed to continue, we might have to be the ones to flee.

The office of the Attorney General is incredibly powerful and not very well understood. Basically, it acts as the police officer for the state, enforcing our laws.  At least, that’s what it’s meant to do. Under Ken Paxton, it is a weapon that is used against innocent Texans. It is also a tool for him to avoid obeying the law himself. Like a bad cop on steroids, he is using his insider knowledge to get away with crimes, and his very great power to take away our freedoms, from intimidating people from voting to stealing property owners’ land.

I know that many voters are reluctant to throw away their votes on a third-party candidate. So if you feel that your vote may not count, then voting for Rochelle Garza is the better choice. Therefore, I am taking the extraordinary of recommending Rochelle Garza for Attorney General over Ken Paxton. Not voting or voting for me may not be enough.

This is a pivotal moment in American history that we are facing. Our way of life hangs in the balance. Ken Paxton isn’t playing politics-as-usual. He is taking pages from the authoritarian playbook. And we cannot afford to play politics-as-usual. That is why I am taking this unheard-of step.

We must kick Ken Paxton out of office in order to save our liberties.

While Rochelle is the Democratic candidate, there is a lot of overlap with our Libertarian values.  She believes in legalizing marijuana and is against using public domain to steal our land for an ineffective border wall. I believe not only that she will respect the rule of law but that she will fight for our freedoms.

While we have seen some prominent Republicans endorsing Democratic candidates this cycle, I can’t recall a situation like this before, in which a candidate running in a partisan race endorsed one of their opponents. I’d have to search to find the examples, but it’s happened in primaries and special elections and non-partisan races, usually when one candidate for whatever the reason suspends their campaign. If you can think of a recent on-point example to accompany this, please leave a comment.

Does this make much of a difference in the race? Probably not much. It will be interesting to see if Ash score less than his Libertarian peers, as that will at least provide some kind of metric. And it only really matters if Paxton fails to get at least fifty percent of the vote. Whatever happens, I thank Mark Ash for recognizing the stakes of this race, and doing his part to make a difference.

Charges dropped against Hervis Rogers

Good, but this whole thing was an enraging travesty and in no way makes things right.

Hervis Rogers

Voter fraud charges against Hervis Rogers, who garnered widespread attention for waiting hours in line to vote at a Houston polling location during the March 2020 presidential primary, have been dismissed.

Attorney General Ken Paxton ordered Rogers’ arrest in July 2021 on charges that he voted while on parole. Over a year later, after the Texas Court of Criminal Appeals reiterated that the attorney general doesn’t have the ability to unilaterally prosecute election crimes, a district court judge has dropped the two counts of illegal voting against Rogers.

“I am thankful that justice has been done,” Rogers said in a statement.

Rogers is over 60 years old, so a conviction could have resulted in what amounted to a life sentence.

“It has been horrible to go through this, and I am so glad my case is over. I look forward to being able to get back to my life,” he added in the statement.

See here for the background. As a reminder, Hervis Rogers was initially jailed on a $100,000 bond – which is higher than what is often assessed on murder suspects – in Montgomery County. Not Harris County, where he voted, but Montgomery because Ken Paxton figured he’d have a better shot at conviction there. Literally everything about this was wrong, and it’s only because the Court of Criminal Appeals actually applied the state constitution that an even larger miscarriage of justice was avoided. Now if there were justice, Hervis Rogers would be able to sue not only the state of Texas but Ken Paxton personally for the needless suffering inflicted on him. None of that is going to happen, but the one thing we can do is vote Ken Paxton out of office, and never give him the chance to do this to someone else. The Chron has more.

UT/Texas Politics Project: Abbott 54, Beto 43

Not great.

With in-person early voting set to begin in Texas on October 24, the latest University of Texas/Texas Politics Project poll finds Gov. Greg Abbott leading Democratic challenger Beto O’Rourke in the gubernatorial race, 54%-43%, among Texans likely to vote in the 2022 election. While more than half of Republican voters say immigration and border security is the most important issue area informing their vote, Democratic voters’ attention is divided among a list of several issues, topped by abortion.

The poll surveyed 1,200 self-declared registered voters using the internet from October 7-17 and has a margin of error of +/- 2.83 for the full sample. From among this overall sample, likely voters were defined as those respondents who indicated that they have voted in every election in the past 2-3 years; or those respondents who rated their likelihood to vote in the November elections on a 10-point scale as a 9 or a 10. This likely voter screen yielded a pool of 883 likely voters, with a margin of error of +/- 3.3% for the full likely voter sample.

Beyond the two major party candidates, Green Party Candidate Delilah Barrios and the Libertarian Party’s Mark Tippets each earned 1% support while 2% preferred an unspecified “someone else.”

[…]

The results among likely voters found Republican candidates maintaining wide leads in the five other major races for statewide office. In all of the trial ballots, including for governor, undecided, but likely, voters were asked whom they would choose if forced to make a decision. All results for the trial ballots report the results of the initial question combined with this “forced” response. (The poll summary reports the share of voters who expressed no preference in the initial question in each race.)

Lt. Governor. Incumbent Dan Patrick led Democratic challenger Mike Collier, 51%-36%, in their rematch of the 2018 race.

Attorney General. Incumbent Republican Ken Paxton leads Democrat Rochelle Garza 51%-37%.

Comptroller of Public Accounts. Two-term incumbent Republican Glenn Hegar leads Democrat Janet Dudding 47%-35%.

Agriculture Commissioner. Incumbent Sid Miller leads Democrat Susan Hayes 51%-39%.

Land Commissioner. Republican State Senator Dawn Buckingham leads Democrat Jay Kleberg 47%-36%.

The generic ballots for the U.S. House of Representatives and the Texas legislature also revealed continuing advantages for Republican candidates: Republicans lead 53%-44% in the generic ballot for the U.S. House of Representatives, and 53%-42% for the Texas legislature.

This is upsetting mostly because the August poll had Abbott up by only five and had shown a slight but steady drift towards Beto over time. The one caveat here is that the previous polls were of the full registered voters sample, and this is of “likely voters”, which is about three-fourths of the original. It’s not a direct comparison as a result, though of course the pollsters will have done what they think is best to reflect the electorate accurately. If they provided numbers for the full sample in October, I didn’t see them.

The October poll data is here and the August data is here. The underlying atmosphere has not changed in any significant way. Biden’s approval was 40-52 in August and it’s 39-52 in October (the approval numbers are still based on the full sample in each case). Abbott went from 46-44 to 47-44. Dan Patrick and Ken Paxton were actually slightly worse in October, going from 38-37 to 37-39 for Patrick and from 37-38 to 36-39 for Paxton. Either a lot of people changed their minds or that likely voter screen is a big difference maker.

I’ve put my faith in the “the screen is too tight” beliefs before without much success, so I don’t want to go overboard here. If these numbers are accurate, they don’t bode well for Harris County either, suggesting Beto might end up with 52 to 54 percent. At the high end, as I’ve said before, I’d still feel pretty confident about Harris County Dems. Less than that, and I would expect Republicans to win at least some races. Maybe this year is another inflection point, and maybe the dip in the gap between Harris and the state that we saw in 2020 following years of games will not be a one off. No way to know until we start to see some real numbers.

The poll also includes this demographic breakdown in the vote:

White/Anglo: Abbott 64%, O’Rourke 32%
Hispanic: O’Rourke 48%, Abbott 48%
Black: O’Rourke 86%, Abbott 11%

Those are the strongest numbers Beto has had for Black voters in awhile. They’re not great for white voters – compare to the Marist poll, for example, which had Abbott leading Beto by a much smaller 57-37 margin among those voters – and this is another poll that has Beto with no advantage among Hispanic voters; note that was also true in the Marist poll. We saw a great disparity in Hispanic preferences in the 2020 polls, and in the end the ones that showed a smaller lead for Dems were more accurate. I don’t know what else to say here.

I will add that we saw one more poll result released yesterday, from the Democratic AG’s Association (DAGA), which claimed Rochelle Garza was trailing Ken Paxton by two points, 48-46. That linked poll memo is the entire thing – no Beto/Abbott numbers, no Biden approval numbers, no crosstabs, nothing – and it’s basically an internal poll, so maintain a higher level of skepticism for this one. I will note the following from the memo:

The survey was conducted between October 12th-16th using live calls to landlines, SMS text-to-web and live calls to cell phones, and an online panel. The sample includes 879 registered voters and is weighted to reflect a likely 2022 Texas general electorate. The margin of error is +/- 3.24% at a 95% confidence interval.

The results of the survey show that when asked who they’ll vote for as Attorney General and Texas undecided voters are allocated to a candidate, Paxton is only ahead by 2 points, within the margin of error for the survey, landing at 48% Paxton, 46% Garza, with 6% of voters say they’re voting for Libertarian Mark Ash in the AG race.

Another “likely voter” result, though with less detail. They also seemingly pushed the initial non-respondents into picking a side, which I had initially frowned at but I guess if the UT/TPP folks can do it, they can too.

Harris County asks for federal vote monitors

I agree with this.

Houston and Harris County officials are asking the U.S. Department of Justice’s civil rights division to send monitors to assist in the upcoming November election in response to a letter the county received from the Texas secretary of state’s office this week informing it that state election observers would be monitoring the county’s election and vote tally.

The request to the federal agency was sent Thursday by County Judge Lina Hidalgo, County Attorney Christian Menefee and Houston Mayor Sylvester Turner.

In a statement, Menefee questioned the state’s intentions in sending election monitors to the county.

“We cannot allow unwarranted disruptions in our election process to intimidate our election workers or erode voters’ trust in the election process,” Menefee said. “As the county attorney, I will be at central count on Election Night, ensuring outside forces do not interfere with our elections. I hope the Department of Justice will be there, too.”

[…]

In response to the local leaders’ request for federal election monitors, the secretary of state’s office said in a statement that suggestions made by local leaders were a “cynical distortion of the law.”

The office reiterated that its decision to send monitors to Harris County was a matter of routine.

“The Texas secretary of state’s office has sent election inspectors to Harris County every year and has never before seen a request for the Department of Justice to ‘monitor the monitors,’” the statement said. “This request is based on a completely false premise and misunderstanding of Texas election law and is being used to spread false information about the actual duties of our election inspectors — dedicated public servants who will be present in Harris County to observe only and to ensure transparency in the election process from beginning to end.”

Mary Benton, the mayor’s communications director, said: “Mayor Turner welcomes a discussion with the U.S. Department of Justice. He is confident that if they send election monitors to Harris County, they will operate effectively to ensure that no registered voter’s rights are trampled on as they attempt to cast a ballot legally.”

See here for the background. I don’t care if the SOS is miffed about this, but even if we take them at their word there’s still the Attorney General’s “task force”, which absolutely cannot be trusted and needs to be watched like a tachyon in a particle accelerator. This was absolutely the right move. Reform Austin and the Texas Signal have more.

Interview with Rochelle Garza

Rochelle Garza

You are probably well acquainted with the current Attorney General of Texas. My goal here is to help acquaint you with the person who should be the next Attorney General of Texas, Rochelle Garza. A Brownsville native and fifth-generation Texan, Garza got her law degree at UH and made a name for herself in 2018 by fighting for reproductive rights for immigrant teens in detention and winning her case against the Trump administration at the Supreme Court. She has been a staff attorney for the ACLU and is now a managing partner at her own firm. She has served on the board of Jane’s Due Process, the State Bar of Texas’ Laws Relating to Immigration and Nationality Committee, and the Cameron County Bar Association. I don’t really have to tell you that she’s a far better person than the incumbent is, do I? We get into all of the reasons why she would also be a far better Attorney General in the interview:

PREVIOUSLY:

All interviews and Q&As through the primary runoffs
Susan Hays – Ag Commissioner
Luke Warford – Railroad Commissioner
Michelle Palmer – SBOE6
Chuck Crews – HD128
Cam Campbell – HD132
Stephanie Morales – HD138
Robin Fulford – CD02
Laura Jones – CD08
Teneshia Hudspeth – Harris County Clerk
Amy Hinojosa – HCDE Trustee, Precinct 2
Andrea Duhon – HCDE Trustee, Precinct 4

As always, everything you could want to know about the Democratic candidates can be found at the Erik Manning spreadsheet.

Trib profile of Rochelle Garza

Good story with a lot of details you probably don’t know about the Democratic candidate for Attorney General. It also includes this bit of annoying news:

Rochelle Garza

Polls show the contest is the tightest of all statewide races. Garza, 37, is within single digits of Paxton, who was endorsed by former President Donald J. Trump but long plagued by legal trouble that has turned him into the most vulnerable among Republican incumbents. Indicted seven years ago for securities fraud charges still pending, Paxton is under investigation by the FBI after several former aides claimed he abused his office by helping a wealthy donor. The whistleblowers sued Paxton after he fired them. Paxton has denied wrongdoing.

But despite the incumbent’s weaknesses, Paxton is still popular with Texas Republicans. Garza remains the underdog, battling her own low name recognition and a fundraising disadvantage in an expensive statewide race that is already demanding considerable resources for travel and TV ads.

“Garza is clearly competitive in this race, but she’s competitive based on Paxton’s weaknesses, because she’s not well known,” said Cal Jillson, a political scientist at Southern Methodist University.

The Democratic establishment “does seem reluctant to put money behind her campaign, even though it’s the closest race and Paxton has weaknesses that make him the most vulnerable of statewide office holders,” Jillson said. “So they’re hanging back.”

The Garza campaign had nearly $500,000 on hand as of July, after raising about $1.1 million. Paxton has raised more than $8 million and still has about $3.5 million on hand to spend during the same period. The next campaign finance reporting deadline is in October.

Bill Compton, a Dallas lawyer who’s often donated to Democratic candidates in the past, would agree with Jillson. He said he’s still hesitant to write a check to Garza, whom he described as “an unknown.”

Compton attended the Dallas Democratic Forum where Garza spoke earlier in the day and said he liked what he heard. But he and others view the candidate right now only as an “alternative” to Paxton.

[…]

The Democratic Attorneys General Association launched a digital ad buy targeting attorney general candidates in various states, including Texas, said Geoff Burgan, a spokesperson for the group. “We’ve also provided focus groups, polling, and video throughout her time as the nominee,” Burgan said in an email.

Indirectly, Garza was helped by the messy, Republican primary and runoff that included many negative ads targeting Paxton.

“These were Republicans in these ads saying, “I don’t trust Ken Paxton to be attorney general,” Burgan said. “These are people that Republican voters listen to.”

Candidates without name recognition typically work with their donors to raise enough money to talk to the general public over a period of months, said Jillson, the political scientist. “You introduce yourself with a series of ads and then slam your opponent toward the end,” he said.

“And she just hasn’t had the money to do that and doesn’t have the money today,” Jillson said.

Garza said her campaign outraised Paxton in the last reporting period: “We have the momentum.”

“I keep telling folks this is our race to lose,” Garza said. “This is the closest we have come in almost 30 years and it’s time we elect a Democrat to this office.”

On the one hand, the Attorney General race usually doesn’t draw much money. On the other hand, I couldn’t explain Bill Compton’s reasoning if you gave me an answer key and a psychological profile of him. The story refers to recent polling, in which Garza is generally the closest Democratic candidate to their opponent, albeit by point or two and often with more undecideds. I’m always skeptical of stories about how this downballot Dem or that is “the Democrats’ best chance of winning statewide office” because I think the ticket will rise and fall mostly on how the guy at the top does and what the national environment is like, but we have seen crossover support for Paxton opponents before. I expect we’ll see it again, and for sure some extra cash would help with that. I still think the best thing that can happen to Rochelle Garza – and Mike Collier, and Susan Hays, and the rest – is that Beto wins or comes very, very close. It’s a lot easier to see her and others’ paths to victory from there.

You can add “incompetent” to “corrupt” when describing Ken Paxton

I can’t say this is a surprise, but it is shocking.

Best mugshot ever

Texas Attorney General Ken Paxton’s staff this month quietly dropped a series of human trafficking and child sexual assault cases after losing track of one of the victims, a stumble in open court emblematic of broader dysfunction inside one of America’s most prominent law offices.

The Republican has elevated his national profile in recent years, energizing the right by rushing into contentious court battles that have affected people far beyond Texas. He has fought access to abortion, Democratic immigration policy and the outcome of the 2020 presidential election.

But as Paxton seeks to fend off legal troubles and win a third term as Texas’ top law enforcement official, his agency has come unmoored by disarray behind the scenes, with seasoned lawyers quitting over practices they say aim to slant legal work, reward loyalists and drum out dissent.

An Associated Press investigation found Paxton and his deputies have sought to turn cases to political advantage or push a broader political agenda, including staff screenings of a debunked film questioning the 2020 election. Adding to the unrest was the secretive firing of a Paxton supporter less than two months into his job as an agency advisor after he tried to make a point by displaying child pornography in a meeting.

The AP’s account is based on hundreds of pages of records and interviews with more than two dozen current and former employees, many of whom spoke on condition of anonymity out of fear of retaliation or because they were not authorized to talk publicly.

In the small town of Gatesville, the fallout was felt this month with the collapse of cases dubbed “Operation Fallen Angel.” Six of the people indicted last year on allegations that they were involved in a scheme to force teenage girls to “exchange sexual contact for crystal methamphetamine” are now free. One is being held in the central Texas community on other charges. An eighth died in jail.

“It’s absolutely broken. It’s just broken. You don’t do it this way,” Republican District Attorney Dusty Boyd said of the attorney general’s office, which took over the cases from his five-lawyer team. “I made the mistake of trusting them that they would come in and do a good job.”

[…]

After the dramatic exit of Paxton’s top staff in 2020, those brought into senior roles included a California attorney who donated $10,000 to help Paxton fight his 2015 securities fraud indictment and Tom Kelly Gleason, a former ice cream company owner whose father gave $50,000 to the attorney general’s legal defense fund.

Gleason was fired less than two months into his new job as a law enforcement adviser. Paxton’s office has not disclosed why, but three people with knowledge of the matter said Gleason included child pornography in a work presentation at the agency’s Austin headquarters.

The people said Gleason displayed the video — which one of them described as showing a man raping a small child — in a misguided effort to underscore agency investigators difficult work. It was met with outrage and caused the meeting to quickly dissolve.

Afterward, Paxton’s top deputy, Brent Webster, told staff not to talk about what happened, according to one of the people.

Gleason, who began his career as a police officer in the late 1970s, did not respond to voicemails, text messages, emails and letters left at this home and business. A lawyer who has represented him also did not respond to an email seeking comment.

As of August, payroll data show the number of assistant attorneys general — the line lawyers who handle daily case and litigation work — in the criminal prosecutions division was down more than 25% from two years ago. The data, which was obtained under public records law, show the group that handles financial and white-collar cases was cut by more than half and merged with another division.

“This is scary to me for the people of Texas,” said Linda Eads, who served as a deputy attorney general in the early 2000s, when she said it was rare for any division to have more than two or three vacancies.

Boyd said staff turnover in Paxton’s human trafficking unit contributed to the collapse of the cases in Gatesville. In the last two years, Republican lawmakers have doubled the division’s budget to $3 million, but Boyd questioned whether it was well spent.

On Sept. 13, the attorney general’s staff wrote in court papers that they were dismissing three trafficking cases because a witness had recanted and dropping the other four because they were “unable to locate victim.”

“For Pete’s sake, you’re the AG’s office. You can’t find the victim?” Boyd said. “The culture is broken.”

There’s more so read the rest, but honestly, how much more do you need? Screwing up a human trafficking case – which they took away from the locals in Coryell County – because they lost track of a victim, and hiring a failson of a big donor who thought it was a good idea to include actual video of a violent sex crime against a child in a presentation…this is an office for which the word “dysfunctional” is not nearly strong enough. This story needs to get a lot more attention. And for crying out loud, vote for Rochelle Garza in November. This is what you’re supporting if you don’t.