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Ken Paxton

The Fifth Circuit does what the Fifth Circuit always does

The fix, as ever, is in.

Right there with them

A federal appeals court on Tuesday temporarily reinstated Texas’s ban on abortions amid the coronavirus outbreak, saying it needs time to review arguments about its impact.

The ruling is the latest in a ricocheting legal battle that began last week after the governor postponed non-essential surgeries, and the attorney general declared abortions to be included.

The Republican-led state is one of several that have moved to block abortions, arguing that providers are draining critical medical supplies that could be used to respond to the coronavirus pandemic.

Two of the conservative justices on the Fifth Circuit Court of Appeals issued the ruling, and gave both sides until Friday to respond, meaning the ban will remain in effect at least through this week.

In a dissent, Circuit Judge James Dennis noted that a federal judge in Austin had declared a day earlier that “irreparable harm would flow from allowing the (governor’s) order to prohibit abortions during this critical time.”

See here for the background. I wish these predictions weren’t so easy to make, but this is literally what the Fifth Circuit does. I’m going to go walk my dog and hurl curses in their direction. You go read Mark Joseph Stern and Mother Jones for more details about this.

More on Abbott’s stay-in-jail order

Here’s that more detailed Chron story I referenced yesterday. I’m just going to quote the newer information about Greg Abbott’s executive order that attempts to basically stop most releases of inmates from the jail regardless of the coronavirus situation.

The newly appointed monitor over Harris County’s misdemeanor bail protocol, Duke law professor Brandon Garrett, said the decree violated “many state and federal constitutional provisions.”

Alec Karakatsanis, a civil rights attorney who represents thousands of indigent defendants awaiting trial at the lockup on felony charges, called the governor’s stance illegal and perilous.

“The edict is dangerous, unprecedented, chaotic, and a flagrantly unconstitutional attempt to infringe fundamental constitutional rights,” he said. “If enforced it would have catastrophic public health consequences.”

[…]

The governor’s order suspends portions of the Texas Code of Criminal Procedure and statues related to personal bonds, barring any personal bonds for anyone with a prior violent conviction or a conviction involving the threat of violence. He also outlawed releasing inmates with prior violent convictions on electronic monitoring.

In a barely veiled reference to the preparations taking place by Harris County Judge Lina Hidalgo, the governor suspended portions of the Texas Government Code permitting a county judge, mayor or emergency management director from releasing people outlawed under his new order. He said criminal court judges who handle misdemeanor and felony cases may still consider such releases on an individualized basis for health or medical reasons proper notice to prosecutors.

Among prison inmates, Abbott suspended portions of the state criminal code related to commuting sentences for anyone convicted of violence or threats.

Multiple plans for lowering the jail population have evolved in the past two weeks, including an executive order by Hidalgo that never came to fruition and a request by the lawyers who sued the county over its bail practices. District Attorney Kim Ogg also entered the discussion, telling the sheriff and presiding district judge that she wanted to weigh in and expedite releases of low-risk inmates in the “high likelihood” of a federal court order dictating either substantive bail hearings or outright release on personal bonds.

“As the legal representatives of the State of Texas, we also have the duty to be advocates for victims and the community in a full and fair bail hearing related to the proposed release of individuals who do pose a substantial risk to public safety,” Ogg wrote, in the letter obtained by the Houston Chronicle.

Hours before Abbott’s announcement, Chief U.S. District Judge Lee H. Rosenthal convened an emergency hearing by phone to address incomplete plans by plaintiffs in a federal civil rights case to craft the a release order for people accused of some nonviolent offenses, along with lawyers for the sheriff and the county judge.

An official from Attorney General Ken Paxton’s office told the federal judge that Paxton was poised to appeal any order by Rosenthal that called for blanket releases of inmates.

See here for the previous post. The Trib adds on.

Abbott’s order applies to inmates who have been accused or convicted of “a crime that involves physical violence or the threat of physical violence,” which defense attorneys called a vague and subjective standard. Abbott’s directive also appears to apply to inmates with any history of violent offenses — meaning a person arrested on a nonviolent drug charge last week could be held if he had a decades-old conviction of a violent offense.

Though the order bans release of inmates on no-cost, personal bonds, it does not set a standard for how high a bail amount must be. Presumably, judges could still release inmates on bonds of $1, defense attorneys said.

Legal experts questioned the order’s validity, and it drew immediate rebukes from Democrats and bail reform advocates, who argued the order discriminates against poor people. Several Texas counties, including Harris and Dallas, have in recent years had their bail practices deemed unconstitutional for discriminating against poor defendants.

“It is a dangerous, unprecedented, chaotic and flagrantly unconstitutional edict that if enforced would expose many people around the state of Texas to a public health catastrophe,” said Alec Karakatsanis, executive director of the Civil Rights Corp, which has been at the helm of Harris County’s federal bail lawsuits.

El Paso Democrat Joe Moody, a state representative and former prosecutor and defense attorney, said “if followed, this order will see jails bursting at the seams [with] minor drug offenders, homeless people whose most recent ‘crime’ was something like simple trespass & everyday citizens picked up on the flimsiest of allegations.”

According to Abbott’s order, a judge may consider a defendant’s release for health or medical reasons, after the district attorney is notified and there is an opportunity for a hearing.

You can see the executive order here, and a brief analysis of why it doesn’t pass constitutional muster here. Rep. Gene Wu was on a call with Abbott and reports that the Governor is either misinformed or not telling the truth about his own order. The ACLU of Texas has responded to Abbott’s order, and I presume we’ll have some action in the federal court today. I should note that Ken Paxton jumped out in front of this parade ahead of Abbott’s order, which prompted a couple of folks to observe that Ken Paxton is himself under a felony indictment and out free on bail. Hey, irony went into hospice care sometime back in 2002, so just keep swimming. The Texas Observer has more.

Latest abortion ban halted for now

We follow the script.

Right there with them

A federal judge on Monday temporarily blocked Texas’ ban on abortions, a prohibition state officials said was necessary to preserve medical resources during the coronavirus pandemic.

The ruling came less than a week after Texas abortion providers announced a lawsuit against top state officials, challenging Attorney General Ken Paxton’s assertion that Gov. Greg Abbott’s executive order banning all procedures deemed to be not medically necessary should be interpreted to include abortions.

The court granted the abortion providers’ motion to temporarily block the state from enforcing the order, which was set to expire April 21, as it relates to abortions. The temporary restraining order will expire April 13.

“Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly,” wrote U.S. District Judge Lee Yeakel. “There can be no outright ban on such a procedure.”

Yeakel also wrote that people seeking abortions would “suffer serious and irreparable harm” if the ban were allowed and that temporarily blocking the executive order “will not disserve the public interest.”

“The attorney general’s interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable,” Yeakel wrote.

See here for the background. The next page of this script is the state appealing to the Fifth Circuit, and the Fifth Circuit inventing some reason to give the state what it asked for. After that it gets a little murky, but by then it almost doesn’t matter because the state gets to do what it wants in the interim. In theory, once the emergency order is lifted then the justification for this ban goes away, but if you don’t think there’s some way that Abbott and Paxton might try to work around that, you’re not thinking hard enough. The Current and Slate have more.

Of course he thinks that’s “essential”

Doesn’t get any more on-brand than this.

Best mugshot ever

Gun stores are essential business and should be allowed to remain open during the COVID-19 pandemic, Texas Attorney General Ken Paxton said Friday.

Paxton said in his nonbinding opinion that state law prevents cities and counties from “adopting regulations related to the transfer, possession, or ownership of firearms, or commerce in firearms.”

Rep. Dustin Burrows, R-Lubbock, on Tuesday requested that Paxton’s office weigh in on whether firearm sales can be listed as essential businesses by local officials, as businesses across the state have shuttered due to shelter-in-place orders designed to slow spread of the new coronavirus.

“Having access to tools of self-protection, hunting and for keeping your property safe and secure is always essential. It’s even more essential for access during times of uncertainty and emergency,” Burrows said in a written statement.

Many cities and counties had not designated gun retailers, ranges or manufacturers as essential businesses in their stay-at-home orders, Burrows said in his letter. However, San Antonio and Dallas County did exempt the fire arms businesses.

“It does not appear that cities or counties have the authority to restrict the transfer of firearms, even during a natural disaster,” Burrows wrote in his request.

The opinion comes less than 72 hours after the agency received Burrows’ request — a remarkably fast turnaround on a process that routinely takes weeks or months.

That’s because this process normally requires research and inquiry, and leave open the possibility of an answer that doesn’t conform to one’s initial inclinations. Couldn’t take any chances on that here, obviously. People need to be able to defend themselves against that virus. I recommend very small-caliber bullets.

AG opinions are not binding, of course, so a city or county could go ahead and impose a ban on gun stores anyway if they wanted to. That would leave it up to a court to decide; there’s a fight over this already happening in California, where gun stores were (also not surprisingly) not classified as “essential”. I rather doubt any Texas municipality would want to expend that kind of effort when there are more important things to do, but they could if they chose to. The whole thing is ridiculous, but here we are.

Abortion providers file suit over Abbott executive order

You can’t let crass opportunism go unchallenged.

Right there with them

Texas abortion providers announced a lawsuit against top state officials, challenging an executive order earlier this week that included abortion in a ban of all procedures that are deemed to not be medically necessary.

In a press conference Wednesday, national and state abortion rights groups said they are seeking a temporary restraining order, with hopes of a more permanent injunction to follow. They are representing various abortion providers in the state, including Austin Women’s Health Center and Southwestern Women’s Surgery Center.

The ban, which Attorney General Ken Paxton later clarified applies to abortion clinics as well, was enacted to ensure the state maintains health care capacity as it prepares for an influx of COVID-19 patients. But abortion clinics and activists in the state pushed back almost immediately, with Planned Parenthood President Alexis McGill Johnson calling it an “exploitation” of the current crisis.

Sealy Massingill, the chief medical officer of Planned Parenthood of Greater Texas, took politicians to task for “playing politics” at a critical time. Planned Parenthood of Greater Texas still plans to keep clinics open, though he said the organization is bracing for further developments.

“I find it extremely distressing … that we are trying to respond to a purely political fight that [Gov. Greg Abbott] started. Patients who need abortions are on a time-sensitive deadline,” Massingill said.

Providers have already had to turn away patients, Massingill added, and delays of even a few weeks could render some abortions impossible if the patients’ pregnancies extend past legal deadlines.

Here’s the Trib story about the executive order. I didn’t get around to blogging about it because there’s just too much these days. It should be obvious that a “medically necessary” procedure is one that simply cannot be put off, at least not for a significant length of time, and that by that definition, abortion clearly fits. To claim otherwise, as the state of Ohio has also done, is sophistry at best and a straight up lie otherwise. In a rational world, this would get stopped in a hot second by any court. In a world that includes the Fifth Circuit Court of Appeals, your guess is as good as mine. Given that Abbott has declined to issue a statewide stay-at-home order, preferring to leave that to the locals, who have not seen fit to order clinics to stop providing abortions, the case for this is even flimsier. I feel confident that a district court judge will issue a temporary restraining order, but after that who knows. The Chron has more.

Ken Paxton does Ken Paxton thing

Film at 11.

Best mugshot ever

Texas Attorney General Ken Paxton’s office is not defending a state agency that is being sued for punishing a judge who refuses to officiate gay marriages.

It’s the most recent in a handful of cases in which Paxton, a Republican, has stepped away from one of the basic requirements of his job because the state’s actions conflict with his views of the Constitution.

Just days after the 2015 Supreme Court decision legalizing same-sex marriage, Paxton issued a legal opinion arguing that Texas clerks and judges with religious objections could not be forced to officiate those marriages or process the paperwork. In the nonbinding opinion, Paxton, also pledged to “be a public voice for those standing in defense of their rights.”

That argument will be tested in Texas courts for the first time after Justice of the Peace Dianne Hensley of Waco sued the Commission on Judicial Conduct for issuing her a warning last year. Since 2015, the general practice in Texas has been that judges either perform all types of marriages or none, if they have religious objections to same-sex marriages. But Hensley argued she could continue officiating straight marriages while referring same-sex couples to others because of the conflict with her religious beliefs.

The attorney general would have been expected to represent the commission as part of his charge to defend state agencies, putting Paxton in the awkward position of arguing against his 2015 opinion.

Instead, the attorney general’s office is not representing the agency.

“We believe judges retain their right to religious liberty when they take the bench,” spokesman Marc Rylander said in a statement.

Jacqueline Habersham, interim executive director of the Judicial Commission, has so far acted as counsel for the commission in the case. Habersham declined to comment.

See here and here for the background. The Trib notes another dimension to this.

Paxton declined to defend a different state agency, the Texas Ethics Commission, in a lawsuit filed years ago by Empower Texans, a hardline conservative group that has been an important political ally to him. And he has opted not to defend state laws, like the Texas Advance Directives Act, when they conflict with his interpretation of the Constitution.

Hensley is represented in the case by the First Liberty Institute, a high-profile Plano-based religious liberty law firm with deep ties to Paxton’s office that reach back to the earliest days of his political career. Hensley’s lawyer, Jonathan Mitchell, is a former solicitor general of Texas. And Paxton and the First Liberty Institute have often been allies in religious liberty fights in Texas, collaborating on a lawsuit against the city of San Antonio after it banned Chick-fil-A from opening a location in its airport. Jeff Mateer, now Paxton’s top aide, worked as the firm’s general counsel before joining the attorney general’s office.

Kelly Shackelford, the group’s president and CEO, has endorsed Paxton and contributed to a legal defense fund Paxton has used to fight off a four-year-old criminal indictment for securities fraud.

Nothing ol’ Kenny won’t do to help his buddies. In this sense, it’s just as well that he’s peaced out of the litigation, because literally any alternate arrangement for the State Commission on Judicial Conduct, whether they represent themselves or hire an outside firm, would be better than having an attorney that’s biased against you as your advocate. The solution here is the same as it’s ever been – we need a better AG. We tried in 2018, we’ll need to finish the job in 2022. He’s not going to change, we have to swap him out.

Anti-gay Waco JP sues for the right to be an anti-gay JP

Ugh.

A Waco judge who received a public warning last month for refusing to officiate same-sex marriages filed a lawsuit against the state agency that issued the warning, claiming the governmental body violated state law by punishing her for actions taken in accordance with her faith.

The First Liberty Institute, a high-profile Plano-based religious liberty law firm closely aligned with the Texas Attorney General’s Office, will represent the judge, Dianne Hensley, in the lawsuit filed Tuesday in McLennan County District Court.

Shortly after the U.S. Supreme Court asserted the constitutional right for same-sex couples to marry in the landmark 2015 Obergefell decision, Hensley refused to officiate any weddings. But in August 2016, she decided to resume officiating weddings between men and women, and said she would “politely refer” same-sex couples who sought her services to others in the area.

“For providing a solution to meet a need in my community while remaining faithful to my religious beliefs, I received a ‘Public Warning.’ No one should be punished for that,” Hensley said in a statement.

Hensley, who claims the state violated the Texas Religious Freedom Restoration Act, is seeking a declaratory judgment from the court decreeing that any justice of the peace may refuse to officiate a same-sex wedding “if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.”

[…]

Ricardo Martinez, Equality Texas CEO, said in a statement that as a justice of the peace, Hensley took an oath “to serve all Texans.”

“These elected officials continue to waste taxpayer money in an obsession to discriminate against gay and transgender Texans. This is not what Texans want or expect from elected officials,” Martinez said. “Discrimination of any kind is unacceptable. Their actions are mean spirited, futile, a waste of taxpayer money and most importantly, it’s wrong.”

See here for the background. Look, if Judge Hensley had “politely referred” mixed-race couples to other JPs because her religious beliefs were that only people of the same race should get married, no one would take her seriously. If she were a clerk at the DMV who refused to process drivers license applications from women because her religious beliefs were that women should not drive, she’d be fired on the spot. As a public servant, she serves the whole public, not just the public she approves of. That means she can perform weddings for anyone who comes before her, she can perform no weddings as she had originally chosen, or she can find another line of work. It’s that simple.

This was filed in a state court, as the allegation is that the “public warning” violated a state law. I feel like this will eventually wind up as a federal case, especially if she wins. It’s an open question at this point whether the AG’s office will represent the defense, or the State Commission (which is authorized to defend itself) will do it. All things considered, I’d prefer the latter. This case is going to be a hot mess, so buckle up for it. The Waco Tribune has more.

Will the Paxton case move back to Collin County?

Team Paxton is asking for that to happen.

Best mugshot ever

A Harris County judge said Tuesday he will rule by the end of next month on Attorney General Ken Paxton’s request to move his felony securities fraud case back to his home county.

Judge Robert Johnson avoided getting into other issues raised in the case until he decides whether to send it back to Collin County, where it originated nearly four years ago.

Special prosecutor Kent Schaffer — who opposed Paxton’s motion to move the case — said after Tuesday’s hearing that he thinks Johnson “will make the right decision” and that he believes “with a high degree of certainty” that Paxton will go to trial by spring 2020.

[…]

The case has been delayed for nearly four years now for reasons ranging from the change of venue request to courtroom damage due to Hurricane Harvey to an ongoing disagreement between Collin County officials and special prosecutors over what they ought to be paid for their work.

It was Paxton’s political influence in Collin County that led a judge to move the case to Harris County in the first place. In 2017, Judge George Gallagher sided with prosecutors who argued that Paxton could not receive a fair trial in the county where many of his friends and political allies live and hold positions of power.

The Collin County District Attorney, for example, recused himself from the case because of a friendship with Paxton, a former state legislator.

Paxton’s lawyers argue that Gallagher exceeded his authority in changing the venue in the first place because his temporary assignment to the case had expired months before he made the decision.

They’ve also said that public attention on Paxton’s indictment has waned since 2016 when the case was the talk of “blogs, media and Facebook posts.” Plus, Collin County is better-equipped to take the case as well, they say, because the Harris County court system is already overburdened.

See here, here, and here for the background. Paxton’s argument seems pretty self-serving here, but in some sense it doesn’t matter. We all know Judge Johnson’s ruling will get appealed, all the way to the CCA, and that whole rigamarole will take a couple more years. We’re all going to be old and gray before this case is resolved.

The extraordinary danger of being pregnant and uninsured in Texas

So utterly appalling.

Right there with them

From 2012 through 2015, at least 382 pregnant women and new mothers died in Texas from causes related to pregnancy and childbirth, according to the most recent data available from the Department of State Health Services; since then, hundreds more have likely perished. While their cases reflect the problems that contribute to maternal mortality across the United States — gross medical errors, deeply entrenched racism, structural deficiencies in how care is delivered — another Texas-size factor often plays a significant role: the state’s vast, and growing, problem with health insurance access.

About one in six Texans — just over 5 million people — had no health insurance last year. That’s almost a sixth of all uninsured Americans, more than the entire population of neighboring Louisiana. After trending lower for several years, the Texas rate has been rising again — to 17.7% in 2018, or about twice the national average.

The numbers for women are even worse. Texas has the highest rate of uninsured women of reproductive age in the country; a third were without health coverage in 2018, according to a DSHS survey. In some counties, mainly along the Mexico border, that estimate approaches 40%.

Public health experts have long warned that such gaps can have profound consequences for women’s health across their lifespans and are a critical factor in why the U.S. has the highest rate of maternal deaths in the developed world. Texas’ maternal mortality numbers have been notably troubling, even as errors in key data have complicated efforts to understand what’s going on and led skeptics, including the governorto question whether there’s really a crisis.

Hardly anyone outside the policy world has taken a deep look at how these insurance gaps play out for women in the second-largest state in the U.S. — at how, in the worst-case scenarios, lack of access to medical care endangers the lives of pregnant women, new mothers and babies.

ProPublica and Vox have spent the last eight months doing just that — combing through government data and reports, medical records and research studies, and talking with scores of women, health care providers, policymakers and families of lost mothers around the state. We learned about Rosa Diaz and dozens of others, mostly women of color, by scouring medical examiner’s databases for sudden, “natural” deaths, then inspecting investigator and autopsy reports for clues about what went wrong.

The picture that emerges is of a system of staggering complexity, riddled with obstacles and cracks, that prioritizes babies over mothers, thwarts women at every turn, frustrates doctors and midwives, and incentivizes substandard care. It’s “the extreme example of a fragmented system that cares about women much more in the context of delivering a healthy baby than the mother’s health in and of itself,” said Eugene Declercq, professor of community health sciences at Boston University School of Public Health.

Most of the mothers whose cases we examined were covered by Medicaid for low-income pregnant women, a state-federal health insurance program that pays for 53% of the births in Texas, more than 200,000 a year, and 43% of all births nationwide. In Texas, the program covers OB-GYN visits, medications, testing and nonobstetric care, from endocrinologists to eye exams.

But the application process is so cumbersome that women in the state have the latest entry to prenatal care in the country, ProPublica and Vox found. It can take months to be seen by regular providers and even longer to access specialists. This poses the greatest danger for high-risk mothers-to-be — as many women on Medicaid are, having had no medical care for significant parts of their lives. Then, roughly two months after delivery, pregnancy Medicaid comes to an end, and the safety net gives way to a cliff. For many new mothers, the result is a medical, emotional and financial disaster.

More than half of all maternal deaths in the U.S. now occur following delivery, according to the Centers for Disease Control and Prevention, with as many as 24% happening six or more weeks after a woman gives birth. In Texas, the proportion of late-postpartum deaths is closer to 40%, with black women bearing the greatest risk. “To lose health care coverage really has a tremendous potential to worsen outcomes,” said Dr. Lisa Hollier, chief medical officer for obstetrics and gynecology for Texas Children’s Health Plan and chair of the state’s maternal mortality review committee.

This is a long excerpt, but there’s a lot more to the story, so please read the whole thing. There are numerous policy decisions at fault here – not expanding Medicaid, low Medicaid reimbursements, cutting off Planned Parenthood and substituting in wholly inadequate alternatives, and more – and all of them can be laid at the feet of the state’s Republican leadership. Whoever runs against Greg Abbott and Dan Patrick and Ken Paxton in 2022 should loudly and repeatedly assert that every maternal death in Texas is their fault. I keep saying this, and it keeps being true: Nothing will change until we have different, and better, government in this state. There’s no other way to do it.

The next bathroom bill

You can see it coming from here.

The Texas House LGBTQ Caucus is counting on Democrats flipping the Republican-held House to keep another possible ‘bathroom bill’ off the table during the 2021 legislative session.

Texas Republicans last week rallied around a child custody case of a Dallas 7-year-old whose mother says is transgender, pledging to intervene against children’s gender transition. Members of the caucus, who fought the controversial “Chick-fil-A bill”, said flipping the House will be key to winning the brewing battle over the care of transgender children.

“The only way we’re going to avoid that is by flipping the House,” Rep. Celia Israel, D-Austin, said at a caucus town hall at the University of Texas LBJ School of Public Affairs. “We are nine seats away from controlling the flow of legislation in the House so that we don’t feed that beast anymore.”

[…]

Rep. Julie Johnson, a freshman Dallas Democrat, said the government has no right to intervene in the “personal decision” for children to transition. The child lives in Johnson’s district.

She agreed that winning the House is the best strategy to combat bills such as the one promised by Rep. Matt Krause to ban puberty blockers for children to transition. Johnson noted that the Fort Worth Republican also authored the “Chick-fil-A bill” banning governments from taking “adverse action” against someone based on affiliation to a religious organization.

LGBTQ advocates say the law, which gained traction after San Antonio’s city council booted Chick-fil-A from its airport for its donations to Christian organizations that oppose expanding LGBTQ rights, gives a license to discriminate.

“He’s going to be filing those bills, so hopefully if Democrats are in charge those bills won’t get a hearing,” Johnson said.

See here for the background. I agree with Reps. Israel and Johnson, and I daresay Republicans also believe that whether a bill targeting trans kids gets a House hearing or not depends very much on which party has a majority. There’s not really anything else to say at this time, so let me encourage you to read this Twitter thread, and reflect on the fact that Greg Abbott et al would consider that man to be an abusive parent.

Last bail lawsuit hearing

At least I assume it’s the last one. I’ve been thinking this was all over but for the formality for months now, so what do I know?

Dianna Williams has witnessed the “collateral damage” of jailing on the fabric of a family. The 61-year-old criminal justice advocate told a federal judge Monday that for generations, her relatives lived paycheck to paycheck and could not afford cash bail when her father and then her brother and her son were held pretrial on low level drug charges.

Mary Nan Huffman offered an opposing take to the judge presiding over a deal upending Harris County money bail for low level offenses. She recounted how her friend was walking with her 3-month-old when a man in a red truck trailed her and later showed up in her yard, masturbating with a knife in his hand. Under the new bail deal, the man would never see a judge and no one would hear that he was a three-time felon who’d been to prison for rape, indecent exposure or kidnapping, said Huffman, a spokesperson for Houston Police Officers’ Union.

Ultimately, the sheriff who oversees the third largest jail in the country sought to assuage fears of constituents on both sides of this contentious issue, telling Chief U.S. District Judge Lee H. Rosenthal the consent decree approved last summer provides fundamental guarantees of justice enshrined in American law and warning against the inclination to let scary scenarios involving particular cases be the foundation of a bail system.

“I don’t think it’s effective for us to develop public policy on outliers,” Sheriff Ed Gonzalez said during the court gathering known as a fairness hearing. “We have to rely on research and facts.”

The hearing attended by six misdemeanor judges who support the historic settlement and three commissioners court members, two of whom oppose it, and about 100 stakeholders lasted three hours, with the judge saying she would consider the input and issue an order soon.

[…]

In a typical class action, a fairness hearing offers class members a chance to express concerns with a settlement. The hearing Monday was unique in that nearly all the speakers were not parties in the lawsuit.

Here’s a preview story of the hearing. I think we all know the basic outline at this point, so all I really care about is when we’ll get the final order from Judge Rosenthal. And then we can relitigate everything in the 2020 elections.

Abbott and Paxton threaten transgender child

I’m utterly speechless.

Top Texas Republicans have directed the state’s child welfare agency to investigate whether a mother who supports her 7-year-old child’s gender transition is committing “child abuse” — a move that has alarmed an already fearful community of parents of transgender children.

Gov. Greg Abbott declared via tweet Wednesday that two state agencies, the Department of Family and Protective Services and the Texas Attorney General’s Office, are looking into a dispute between divorced North Texas parents who disagree on whether their child should continue the process of transitioning from male to female, a path that could culminate, when the child is years older, in medical interventions.

In a letter Thursday to the state’s child welfare agency, First Assistant Attorney General Jeff Mateer declared that the child — who identifies as a girl, according to testimony from a counselor and pediatrician — is “in immediate and irrevocable danger.”

“We ask that you open an investigation into this matter as soon as possible and act pursuant to your emergency powers to protect the boy in question [from] permanent and potentially irreversible harm by his mother,” Mateer wrote, repeatedly referring to the 7-year-old as a boy. Mateer’s nomination to the federal bench was withdrawn in 2017 after revelations that he had called transgender children part of “Satan’s plan.”

A spokesman for DFPS said the agency’s “review of the allegations is already underway.”

The case’s path to public discourse began with the child’s father, Jeff Younger, whose blog has generated a maelstrom of right-wing outrage, including from U.S. Sen. Ted Cruz, R-Texas, who called the child “a pawn in a left-wing political agenda.” Younger, who also appeared at a rally at the Capitol this spring, does not agree with his ex-wife that his child is transgender. In blog posts, he has claimed his child could face “chemical castration.”

In reality, experts say, the transition process for prepubescent children does not involve medical intervention; instead, it consists of social affirmations like allowing children to wear the clothes they like, employ the names and pronouns they prefer, and paint their nails if they choose. During puberty, a transgender child might, with the consultation of a doctor, begin to take puberty blockers, reversible drugs that can stop puberty and the gender markers that come with it, like a deepening voice, the development of breasts or starting a period. Later on, experts say, transgender young adults might explore the option of surgery.

In a court ruling Thursday that granted the parents joint custody, Dallas Judge Kim Cooks noted that there was never a court order for the child to undergo medical treatment, according to The Dallas Morning News. Indeed, the mother, Anne Georgulas, had requested that Cooks require mutual consent before the child underwent any treatment, the Morning News reported.

So yes, this is Greg Abbott and Ken Paxton and Ted Cruz and the rest getting involved in a marital dispute. Am I the only one who remembers when Republicans claimed to be about getting government out of people’s lives? However true that may have been once, it sure isn’t the case now.

This is nothing short of an authoritarian move by Abbott. The governor appoints the head of the Department of Family and Protective Services. How much faith are you going to have in the outcome of that investigation? Or the investigation by the AG’s office, under Jeff “transgender people are satan’s spawn” Mateer, for that matter? Oh, and I haven’t even mentioned yet that they made the child’s name public, so everyone who agrees with them can force their own opinion on her as well. How lovely.

And all because they disagree with this child’s mother about what the child is allowed to wear, and they had the power to stick their noses in. They won’t stop this child from being transgender, any more than they could stop her from being left-handed or allergic to peanuts. They will cause a lot of damage trying, though. We cannot vote them out of office soon enough.

One thing our state loves spending money on

Defending unconstitutional anti-abortion laws in the courts.

As Texas defends abortion laws in federal court that mandate fetal burials and seek to outlaw certain medical procedures, the state has been ordered to pay pro-abortion attorneys $2.5 million — fortifying women’s reproductive rights groups that have repeatedly sued over restrictions passed by the state Legislature.

The August order from a federal judge in Austin is seemingly the final decision in a high-profile battle over a 2013 Texas abortion law the U.S. Supreme Court eventually struck down as medically unnecessary and thus unconstitutional. The law, which was in effect for three years, required abortion providers to comply with all the regulations for ambulatory surgical centers, forcing many to undergo expensive renovations, and required their physicians to obtain admitting privileges at a nearby hospital.

The judge’s order brings the state’s total cost for defending those now-defunct pieces of the law to an estimated $3.6 million.

“Passing regulations that are blatantly unconstitutional, and then wasting people’s resources to fight them, costs money and precious resources and time. And people are harmed in the process,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, an abortion provider and lead plaintiff in the case who notes that half of the state’s abortion clinics closed before the Supreme Court’s 2016 ruling. “That is a precious resource of Texans’ dollars being used toward that.”

Because the state lost the case, U.S. District Judge Lee Yeakel ruled it must pay the plaintiffs $2,297,860 attorney’s fees, $170,142 in nontaxable expenses and $95,873 in other costs. The amount represents nearly half of the $4.7 million in costs the plaintiffs say they incurred preparing and trying the case. The Texas attorney general’s office did not contest the judge’s ruling.

The award for the opposing attorneys is more than double the nearly $1.1 million the attorney general’s office reported spending on its own attorney’s salary, overhead, travel expenses and other costs associated with defending the law, according to open records obtained by the Texas Tribune in 2016.

Hardly the first time – that 2016 SCOTUS ruling cost the state even more – and until we get a different government, hardly the last time. The AG’s office declined to comment for the story, but we both know that Ken Paxton would gladly spend down the entire Rainy Day Fund in defense of these laws. It’s not really a cost, as far as they’re concerned. It’s an investment.

On a related note:

[Joe Pojman, executive director of the Texas Alliance for Life which advocates for stiffer abortion regulations,] said anti-abortion advocates need to think long-term if they want to overturn Roe v. Wade, which established legal precedent protecting a woman’s right to an abortion. The long-time activist said he is not confident the makeup of the U.S. Supreme Court is favorable to overturning Roe v. Wade — but it could be in a few years.

“We are telling our people that they need to stay focused on re-electing President Donald Trump because he has a track record of nominating justices who are possibly willing to take an honest look at Roe v. Wade,” said Pojman.

I’ve lost count of the number of times that people who voted for Ralph Nader in 2000 and people who voted for Jill Stein in 2016 have ridiculed the notion of judicial appointments as an electoral issue. Joe Pojman would like to thank them for their dedication to their principles.

Appealing the Crystal Mason illegal voting conviction

This continues to be an appalling travesty.

When Crystal Mason got out of federal prison, she said, she “got out running.”

By Nov. 8, 2016, when she’d been out for months but was still on supervised release, she was working full-time at Santander Bank in downtown Dallas and enrolled in night classes at Ogle Beauty School, trying, she said, to show her children that a “bump in the road doesn’t determine your future.”

On Election Day, there was yet another thing to do: After work, she drove through the rain to her polling place in the southern end of Tarrant County, expecting to vote for the first female president.

When she got there, she was surprised to learn that her name wasn’t on the roll. On the advice of a poll worker, she cast a provisional ballot instead. She didn’t make it to her night class.

A month later, she learned that her ballot had been rejected, and a few months after that, she was arrested. Because she was on supervised release, prosecutors argued, she had knowingly violated a law preventing felons from voting before completing their sentences. Mason insisted she had no idea officials considered her ineligible — and would never have risked her freedom if she had.

For “illegally voting,” she was sentenced to five years in prison. Now, as her lawyers attempt to persuade a Fort Worth appeals court to overturn that sentence, the question is whether she voted at all.

Created in 2002, provisional ballots were intended to serve as an electoral safe harbor, allowing a person to record her vote even amid questions about her eligibility. In 2016, more than 66,000 provisional ballots were cast in Texas, and the vast majority of those were rejected, most of them because they were cast by individuals who weren’t registered to vote, according to data compiled by the U.S. Election Assistance Commission. In Tarrant County, where Mason lives, nearly 4,500 provisional ballots were cast that year, and 3,990 were rejected — but she was the only one who faced criminal prosecution.

In fact, Mason’s lawyer told a three-judge panel in North Texas last Tuesday, hers is the first known instance of an individual facing criminal charges for casting a ballot that ultimately didn’t count.

Her case, now pending before an all-Republican appeals panel, is about not just her freedom, but about the role and risks of the provisional ballot itself.

Prosecutors insist that they are not criminalizing individuals who merely vote by mistake. Despite those assurances, voting rights advocates fear the case could foster enough doubt among low-information voters that they’ll be discouraged from heading to the polls — or even clear a path for prosecutors to criminally pursue other provisional ballot-casters.

“There are a lot of people who have questions about whether they can vote or where they can vote,” said Andre Segura, legal director of the American Civil Liberties Union of Texas. “You want all of those people to feel comfortable going in and submitting a provisional ballot.”

[…]

Tarrant County prosecutors have brushed off concerns the Mason case could lead to voter suppression. “The fact that this case is so unique should emphasize why this case should in no way have a ‘chilling effect’ on anyone except people who knowingly vote illegally,” Jordan said.

But during the 2019 legislative session, some Republican lawmakers pushed to erase Mason’s legal defense for future defendants by making it easier to prosecute people who cast ballots without realizing they’re ineligible.

Currently, to commit a crime, voters must know they are ineligible; under the proposed law, they would commit a crime just by voting while knowing about the circumstances that made them ineligible. In other words, Mason would have been illegally voting because she was aware of her past felony conviction — even if she was not aware her “supervised release” status made her ineligible.

The fact that Mason’s provisional ballot wasn’t actually counted would have also been ruled out as a legal defense under the proposed changes to state law. That legislation ultimately failed in the House amid major opposition from Democrats.

See here for some background. The appellate hearing was last week, and it drew national coverage. There are three legal justifications given by the ACLU on behalf of Crystal Mason why her attempt to vote was not illegal, but even if you think those arguments are insufficient, there’s still no possible justice in a five year prison sentence for this. I mean, there’s plenty of other crimes that are punished far, far less. This is about scaring certain people so they don’t feel confident about voting. This is why reversing the tide of voter suppression laws has to be a priority for the next Democratic Legislature. Further reading about the case from the ACLU is here and here, and the Observer has more.

Red flag

This seems like maybe it’s a problem.

A report out Wednesday by the San Antonio Express-News found that a gun owner in Texas had sent more than 100 pages of racist and violent letters to the Texas Attorney General’s office threatening to kill undocumented immigrants over the course of a year and a half, and that nothing was done to stop him or to communicate the threat to local authorities.

“We will open fire on these thugs,” the white man who allegedly sent the messages wrote in an email to the office. “It will be a bloodbath.”

Over the same period, local officers in San Antonio responded to 911 calls made by and about the man, and visited his house, on at least 35 occasions. However, because he had never seemingly committed a crime, police did not arrest him or take legal action. Nearby neighbors told the Express-News that the man’s home is covered in security cameras and that he often emerged holding a shotgun.

When alerted by a reporter at the Express-News of the threats made to the Attorney General’s Office, the police force did respond. “Since you’ve made us aware of those threats, our fusion center and our mental health unit have reached out to the AG’s office and are trying to work something to make a case against [the alleged suspect Ralph] Pulliam,” Sargent Michelle Ramos told the paper. “They’re going to investigate that.”

The threats and lack of communication by Republican Texas Attorney General Ken Paxton to local police takes on a new light in the wake of two mass shootings in Odessa and El Paso. The El Paso shooter had long written about his hatred for immigrants and his mother had reportedly called the police before the shooting because she did not think her son should own a gun.

“These messages are clearly threats of deadly force against San Antonians based solely on the color of their skin,” wrote State Representative Trey Martinez Fischer in a letter to Paxton. “It is deeply alarming to me that despite the large volume and explicit nature of the messages from Mr. Pulliam, the Office of Attorney General has taken so long to cooperate with local law enforcement.”

The story was published in the print edition of the Sunday Chronicle, but there’s no link for it yet on the Chron site and the E-N story is behind the paywall, so this is the best I can do. Do bear in mind that Ken Paxton has been actively encouraging people like this to report their complaints to his office, so it’s no wonder he’s being tight lipped about this. Dude’s one of his best customers. In the meantime, while we hope this guy doesn’t follow through on any of the many threats of violence he has made, let’s see if any of our Republican leaders, who have been trying to convince us that they might actually Do Something this time, will at least voice support for disarming this guy. I’m not going to hold my breath.

The Harris County bail lawsuit effect on Dallas County

The Trib looks to see if the recent Harris County bail lawsuit settlement might affect the bail lawsuit in Dallas County.

“Anytime one county settles, it could possibly provide a roadmap for another county, but I can’t say that it will,” said Dallas County District Attorney John Creuzot, whose county’s bail practices have also been slammed by a federal judge. “The landscape of this lawsuit is different.”

A big piece of that is because Dallas’ lawsuit, like another in Harris and one in Galveston, targets bail practices not only for misdemeanor defendants, but for felony cases, too.

[…]

“I’ve been studying very closely what’s happening in Harris County, and I think that it’s a step in the right direction and something that we should … modify or use as a blueprint for felony cases,” said State District Court Judge Brandon Birmingham, a Democrat and defendant in Dallas’ lawsuit. He was especially interested in the idea of an open-hours court.

Adding felonies to the lawsuit against bail practices in Dallas brought a new complication, however. The judges work for the state, not the county, and are being represented by the Texas attorney general’s office, which claims they have no jurisdiction over early bail decisions. County officials, who are largely Democratic, have said the attorney general’s office, run by Republican Ken Paxton, has stalled settlement talks and reform efforts.

“The fact that felony judges are part of the lawsuit complicates resolution,” said Dallas County Judge Clay Jenkins, a Democrat. “The AG office’s public positions on criminal justice reform and bail reform are not the same as the Commissioners Court or most of our elected judges.”

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

In a court filing last month, Texas Solicitor General Kyle Hawkins wrote that the Dallas lawsuit goes too far by including felony judges. He said bail decisions are set by county judicial officers before felony judges assume jurisdiction over criminal matters.

“Despite tens of thousands of words spilled in this case so far, [the plaintiff] has yet to articulate just what she expects the felony judges to do, going forward, to remedy her alleged harm,” Hawkins wrote.

But things appear to be moving toward resolution. Two district judges, including Birmingham, recently began conducting their own bail hearings every morning and hired a lawyer to represent them instead of the attorney general. Jenkins and Creuzot confirmed that the parties are now headed to mediation to hopefully come up with a settlement proposal or consent decree.

See here for more on the second Harris County lawsuit, the one involving felony cases. It was filed in January and I haven’t seen any updates as yet, nor do I know if the AG’s office has gotten involved. Be that as it may, it seems to me that the underlying principle is the same, and should be viewed through a similar lens by the federal court. This time, Harris will follow behind Dallas, so we’ll see where they lead us.

Paxton wants to move his case back to Collin County

Of course they do.

Best mugshot ever

Paxton’s defense team has asked that the case be moved back to his hometown of Collin County, years after it was moved from there to Harris County. The case was moved hundreds of miles southeast after the prosecutors claimed that Paxton, a Republican who is well connected in that region and once represented it in the Texas Legislature, would not get a fair trial there.

But Paxton’s defense team argued this week that the judge who moved the case to Harris County two years ago didn’t have the authority to do so, as his term overseeing the case had elapsed.

[…]

That leaves [Judge Robert] Johnson, a Democratic judge overseeing the case, with several issues to mull before Paxton faces a jury. Johnson has not yet responded to either side’s motion.

On Monday, Paxton’s defense attorneys argued that if there is a hearing on the prosecutors’ fees, they should also be present — and asked that the judge rule on changing the venue before the pay issue.

The Team Paxton motions were in response to the prosecutors’ motion to confer with Judge Johnson – just them, Team Paxton is not invited – regarding their pay. I can understand that motion, but as the Observer notes, the argument to move the case back to Collin County is a rehash of the same arguments they made when the case was originally moved. That was seen at the time as a win for Paxton, since his team had moved to boot the original judge from the case. It seems unlikely to me that Judge Johnson will agree to just hand the case back to Collin County, but it’s a lead pipe cinch that Team Paxton will appeal that ruling and thus accomplish their main goal, which is delaying this trial from now until the heat death of the universe. Either way, they get something they want. The DMN has more.

We return once again to the Paxton prosecutor pay fight

This is an interesting argument.

Best mugshot ever

The prosecutors appointed years ago to take Texas Attorney General Ken Paxton to trial will continue to fight over their pay rate, lengthening a dispute that has already delayed the case for well over a year.

[…]

Prosecutors Brian Wice and Kent Schaffer had signaled they might withdraw from the case if they could not be paid. Instead, they are now asking a Harris County judge for a private, “ex parte” hearing over their fees — a meeting that would not include Paxton’s defense team. In a filing this week, they asked Judge Robert Johnson to “issue a new order for payment of fees.”

“The Attorneys Pro Tem’s payment is now an administrative matter for the trial court to decide,” an attorney for Wice and Schaffer wrote. “The Court of Criminal Appeals’ decision provides the court with the parameters necessary for the court to use its discretion in discharging its administrative duties.”

They added that “there is no authority suggesting that an adversarial hearing regarding the payment of fees … should be held” — arguing that Paxton’s defense lawyers should not be present for the hearing.

The judge has not yet responded to the request. A spokesman for Paxton did not return a request for comment.

See here for the last update. I’m glad they waited till after the legislative session to advance this argument, as I can easily imagine a hastily-written bill to cut this off at the knees getting rammed through. I’ve no idea if this brief, let alone the assertion that there doesn’t need to be a response from Team Paxton, has any merit or has ever been tried before. But it sure isn’t boring, and I can’t wait to see how Judge Johnson rules. The DMN has more.

The Fifth Circuit Obamacare hearing

Remember, the Fifth Circuit is where hope goes to die. Adjust your expectations accordingly.

It’s constitutional – deal with it

On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, a nominee of Donald Trump, and in the center sat Judge Jennifer Walker Elrod, the George W. Bush appointee expected to represent the critical swing vote on a three-judge panel now charged with deciding the constitutionality of the Affordable Care Act.

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the U.S. 5th Circuit Court of Appeals to strike down the sweeping health law known as “Obamacare,” a legal means to a political end that has eluded conservatives for the better part of a decade.

Texas won a major victory in its bid to end the law in December, when a federal district judge in North Texas sided with the state, declaring that the law is unconstitutional in its entirety after Congress in 2017 gutted one of its important provisions, a tax penalty for individuals who chose to remain uninsured. The U.S. Department of Justice, in a highly unusual move, has declined to defend the law.

A California-led coalition of blue states that has stepped in to oppose Texas in the lawsuit quibbles with that question of “severability,” arguing that even if one slice of the law must fall as unconstitutional, its other hundreds of provisions — including a host of popular patient protections — should stand. The question of how much of the law may rightly be salvaged was a focal point of court discussions on Tuesday.

Texas’ odds of total vindication remain in question after nearly two hours of questions before the three judges.

Most of the unusually-large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing — whether they have the right to participate in the lawsuit at all. And she seemed highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration.

Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.

The Senate, Engelhardt remarked, “is sort of the 800 lb. gorilla that’s not in the room.”

King, meanwhile, did not speak at all.

See here and here for the background. The legal basis of this lawsuit is so ridiculous that anything short of tossing it and its lawyers out of court is insufficient, but given where we are I could find a way to live with the idea of sending it back to the idiot district court judge for reconsideration. I fear we’ll get some kind of split-the-baby decision that strikes down parts of the law but leaves some crippled skeleton of it intact, which dumbass pundits will then call a “moderate compromise”, in the same way that the midpoint between “I murder you and burn down your house” and “I leave you alone” is a moderate compromise. Not much to do at this point but wait and work your ass off voting these morons out in 2020. NBC News, CNN, Daily Kos, Mother Jones, and Think Progress have more.

The lawsuit to kill Obamacare has its hearing at the Fifth Circuit today

Brace yourselves.

It’s constitutional – deal with it

Last year, after a federal judge in Texas declared the entirety of the Affordable Care Act unconstitutional, throwing into question millions of Americans’ health coverage, the state’s Republican leaders promised they would come up with a plan to replace it.

But on Tuesday, after a legislative session that seemed to have no room for issues other than property tax reform and school finance, Texas will ask a federal appeals court in New Orleans to end the law in its entirety — without offering a replacement plan.

The conservative crusade against portions of the act, known as Obamacare, has spanned a decade. But Texas’ latest lawsuit, filed in February 2018, became an existential threat to the law after U.S. District Judge Reed O’Connor ruled in December that it is unconstitutional in its entirety. At stake: the subsidized health coverage of roughly 1 million Texans, sweeping protections for patients with preexisting conditions, young adults staying on their parents’ insurance plans until age 26 and a host of low-cost benefits available to all people with health insurance, including those covered through their employers.

Texas already has the highest uninsured rate in the nation.

In a highly unusual — if not entirely surprising — move, the U.S. Department of Justice has declined to defend the federal law, leaving a California-led coalition of blue states to protect it. As the case proceeds, Obamacare has remained in place, and likely will until the litigation is finally resolved.

Attorneys for the state of Texas argue the health law cannot stand since the Republican-led Congress in 2017 zeroed out Obamacare’s individual mandate — a penalty imposed on people who chose to remain uninsured. Democrats had favored the penalty as a way to induce more people to purchase health insurance, with the goal of reaching near-universal coverage. Without it, Texas argues, the whole law must fall.

But the state’s Republican leaders have offered few ideas about what should replace Obamacare, a law that touches practically every aspect of health care regulations and includes several popular protections for patients. Gov. Greg Abbott — a vocal critic of the law — pledged in December that if the law remained struck down on appeal, “Texas will be ready with replacement health care insurance that includes coverage for pre-existing conditions.”

Since then, he’s been quiet on the issue, including during this year’s 140-day Texas legislative session. Abbott did not respond to questions for this story.

See here for the background. And of course Greg Abbott doesn’t have a single thing to say about reducing the extremely high uninsured rate in Texas. That’s because Abbott’s plan to reduce the uninsured in Texas, supported by Dan Patrick and Ken Paxton and the rest of the Republicans, is for more of them to die. Just as a reminder, Republicans have been in complete control of Texas government since 2003. Not once during that time have they taken any steps to improve access to health care in the state. Indeed, on multiple occasions, beginning in 2003 with the savage cuts to CHIP and continuing through their assault on women’s health via attacks on Planned Parenthood, they have time and time again make accessing health care harder. That’s what is at stake here. The only fix, regardless of the ruling in this case, is to vote them out. The WaPo, the Chron, and Think Progress have more.

Chip off the old block

Chip Roy, that is, the Ted Cruz minion in the House that no one said they needed.

Rep. Chip Roy

Freshman Rep. Chip Roy, who squeaked into office last year, has spent his first months in Congress establishing himself as a brash and unapologetic conservative — and someone who is utterly unconcerned about what his colleagues think of him.

The 46-year-old Texan was the lone Republican in May to block swift passage of a disaster-relief package for millions of Americans, including those in Texas. In recent weeks, he has spent several nights sitting in a mostly empty House chamber demanding roll-call votes on dozens of uncontroversial amendments in what he billed as an attempt to prod Congress into addressing the crisis at the Southern border.

The practical effect of Roy’s campaign was to delay the passage of a pair of Democratic spending bills, detain lawmakers of both parties on the House floor for several marathon voting sessions, and generate plaudits for himself in the conservative media as well as gripes on the House floor.

“This is an exercise in representative democracy designed to make lots of noise and not much else,” groused Rep. Frank D. Lucas (R-Okla.) amid a two-hour vote series.

[…]

Following veteran Rep. Lamar Smith’s retirement, Roy emerged from an 18-candidate GOP primary and narrowly beat Democrat Joseph Kopser in November’s midterm elections. He won with strong backing from political action committees affiliated with the Club for Growth and the House Freedom Caucus, a group that he has since joined and whose confrontational tactics he has fully embraced.

“He’s a sharp guy, and he’s not afraid to step forward and lead,” said Rep. Jim Jordan (R-Ohio), one of the group’s co-founders, who stood alongside Roy and other conservative hard-liners at a news conference pushing for action on the border.

But few Freedom Caucus members had as close a race as Roy, and Democrats have taken notice. The Democratic Congressional Campaign Committee has moved Roy’s seat up its target list, and a well-known Texas Democrat with proven fundraising potential — former state senator Wendy Davis — is mulling a 2020 challenge in a district that could be swinging away from Republicans.

“It’s a growing district with people who are not ideologically extreme, so it’s been a surprise that he’s taken some of the most right-wing positions in the Congress,” said Rep. Joaquin Castro (D-Tex.) who represents a neighboring San Antonio district.

I mean, the guy was a top henchman for both Ted Cruz and Ken Paxton, so I’m pretty sure he doesn’t much care about anything other than his own ideology. He’s gonna do what he’s gonna do, and it’s on the rest of us to take the scissors out of his hands. On that score, it’s been a bit more than three weeks now since Wendy Davis said she’s make a decision in about three weeks. Maybe we’ll hear something soon. In the meantime, I will remind you that there is a declared candidate in this race, Jennie Lou Leeder, who I can attest has been busy with the fundraising emails. We’ll know soon enough how successful she’s been at that. As long as we have someone who can give this guy a strong challenge, that’s all I ask.

Will Ken Paxton ever be prosecuted?

At this point, I’d have to say it’s very unlikely.

Best mugshot ever

After mulling the question for nearly six months, the nine Republican judges on Texas’ highest criminal court will not reconsider their 2018 ruling that threatens to imperil the criminal case against Texas Attorney General Ken Paxton.

In November, a fractured Texas Court of Criminal Appeals ruled that a six-figure payment to the special prosecutors appointed to take Paxton to trial for felony securities fraud fell outside legal limits for what such attorneys may be paid. A month later, the attorneys asked the high court to reconsider that decision in a spirited legal filing that went unanswered until this week.

The court did not provide any reason for rejecting the motion, nor did any judges write dissenting opinions. Few expected that the high court would reconsider its own ruling.

Payments for special prosecutors are based on strict fee schedules, but judges are permitted to approve payments outside those strictures in unusual circumstances, as a North Texas GOP judge did for the prosecutors in the Paxton case. But after Jeff Blackard, a Paxton donor, sued in December 2015, claiming that the fees were exorbitant, the Dallas Court of Appeals voided the prosecutors’ invoice and the payment has been in question. Meanwhile, the trial itself has been derailed again and again.

Wednesday’s ruling threatens the long-delayed prosecution of Texas’ top lawyer, as the prosecutors —unpaid in years — have signaled they may withdraw from the case if they cannot be paid. The prosecutors have also argued that the pay ruling, in limiting how much attorneys may be paid even in cases of extraordinary circumstances, threatens the state’s ability to adequately compensate lawyers representing indigent defendants.

See here, here, and here for the latest updates, and here for even more, if you want to do a deeper dive. We should all have friends as steadfast as Ken Paxton has in Collin County, both on their Commissioners Court and in the person of Jeff Blackard. Friends help you move, real friends help you game the criminal justice system to effectively quash felony indictments.

At this point, either the existing prosecutors decide to stick it out and maybe extract a bit of revenge via jury verdict, or they throw in the towel and the whole thing starts over with new prosecutors. Which in turn would open a whole ‘nother can of worms, thanks to the Lege.

Under Senate Bill 341, which moved quietly and without controversy through the Texas Legislature, only county attorneys, district attorneys and assistant attorneys general would be qualified to serve in the high-stakes, often high-profile affairs that require specially appointed prosecutors. Currently, judges may appoint “any competent attorney,” which some have argued is an insufficient standard.

The author of that bill, Houston Republican Sen. Joan Huffman, has presented it as a cost-saving effort for counties — special prosecutors will now be government attorneys who would not require additional funds — and also as a way to raise the bar of qualifications for special prosecutors.

That would limit the selection pool from the more than 100,000 practicing attorneys in Texas to a much smaller group of several hundred elected prosecutors or attorneys employed by the agency Paxton runs. The replacement for Wice and Schaffer would have to be either a Democratic district attorney, who might be seen as overly aggressive in her prosecution of a Republican statewide official; a Republican district attorney, who could be seen as overly sympathetic to a leader of his own party; or an assistant attorney general, who would be an employee of the defendant.

That law goes into effect September 1. This law does make some sense, and if the Paxton prosecution had been handed off to a DA or County Attorney there would not have been an issue with payment. I for one would argue that this case should absolutely be turned over to a big urban county DA’s office – Harris, Dallas, Bexar, or (oh, the delicious irony) Travis – since an aggressive prosecution is exactly what is needed, and the DAs in those counties will have less to fear from the voters than, say, the Denton or Tarrant or Montgomery County DAs would. I will be very interested to see what the presiding judge decides to do, if it comes to that. In the meantime, we need the voters of Collin County to start voting out members of their Commissioners Court, and the voters of Texas to start electing better jurists to the CCA. You want a lower-level cause to get behind in 2020, there’s two of them for you.

It’s not an apology that’s needed

This may make for good rhetoric, but it’s not what the goal should be.

Still the only voter ID anyone should need

Congressmen Joaquin Castro and Lloyd Doggett on Friday demanded Gov. Greg Abbott apologize to Texas voters for attempting to purge as many as 95,000 people from Texas voter rolls and said Congress should sue for state records that could show how the plan unfolded if state officials continue to stonewall.

The Texas Democrats said Congress should use every tool at its disposal to investigate the purge they said would have suppressed Latino voter turnout in hopes it will prevent a repeat before the 2020 elections.

“I want them to really put the screws on the governor’s office that it looks like has coordinated an attack on our democracy,” said Castro of San Antonio. “It’s important that we make sure this doesn’t happen again, because if they feel like they got away or they got away with it, then I think they’ll do it again.”

[…]

Castro said he expects the congressional committee to request documents from Texas state lawmakers who may have received some relevant records and signed non-disclosure agreements. After exhausting those and other options, he said he would urge the committee to take Texas to court for records.

“If they have nothing to hide, why wouldn’t they turn those documents over? If we don’t get it, then we should sue,” Castro said.

Doggett, whose district stretches from San Antonio to Austin, said “no tools will be off the table. We’re going to take whatever steps are necessary.”

[…]

Agencies have largely declined to release internal communications that could show how the attempted voter purge was conceived or how the error-ridden list of suspected non-citizens was vetted before its release. In declining to release its own emails, the governor’s office has cited broad exemptions, including attorney client privilege and deliberative process.

Joe Larsen, a first amendment attorney with Houston-based Gregor Cassidy, PLLC, said the governor’s office should have to provide those answers.

“There’s a vital public interest in the disclosure of this information,” he said.

The state also has not released the list of more than 95,000 registered voters that were flagged as potential non-citizens.

That’s a departure from 2012, when the state made public the records used to create an erroneous list of dead people it tried to purge from the voter rolls. Then, the Houston Chronicle found the state had mistakenly matched living voters with deceased strangers from across the country.

See here for some background. I’m mostly interested in the “urge the committee to take Texas to court for records”, because I think the only way to get these records is going to be via court order. There’s just no way Abbott et al will give them up voluntarily. They don’t think they need to, and they don’t see themselves as being answerable to Democratic politicians. Taking this to the courts, and voting these unaccountable princelings out of office at the next opportunity are the answers.

Paxton still holding on to bogus voter purge data

It’s all about secrecy. He doesn’t want you to know what he’s up to.

Best mugshot ever

More than a month after a legal settlement was reached to scrap the review, Paxton’s office has indicated it is keeping open the criminal investigation file it initiated based on the secretary of state’s referral. That’s even after the list was discredited when state officials realized they had mistakenly included 25,000 people who were naturalized citizens and admitted that many more could have been caught up in the review.

Paxton’s office made that indication in a letter this week denying The Texas Tribune’s request for a copy of the list of flagged voters.

The Tribune originally requested the list soon after Whitley announced the review. But the attorney general — whose office also serves as the arbiter of disputes over public records — decided that the list could remain secret under an exemption to Texas public information law that allows a state agency to withhold records if releasing them “would interfere with the detection, investigation, or prosecution of crime.” The office separately confirmed that it had opened a “law enforcement investigation file.”

Following the settlement in late April — and after the secretary of state’s office rescinded the advisory that launched the review — the Tribune re-upped its request with both the secretary of state and the attorney general’s office. But the secretary of state’s office in late May and the attorney general’s office this week asserted they would still withhold the list based on the law enforcement exemption.

“As the law, facts, and circumstances on which that ruling was based have not changed, we will continue to rely on that ruling and withhold the information at issue,” Lauren Downey, an assistant attorney general, told the Tribune in an email.

[…]

“It’s very troubling that the attorney general would base an investigation on a debunked list that we know contains tens of thousands of naturalized citizens,” said Nina Perales, vice president of litigation of the Mexican American Legal Defense Fund, which sued the state on behalf of several naturalized citizens. “If the only basis of the investigation is that voters are naturalized U.S. citizens, then that’s discriminatory and unconstitutional.”

See here for the background. Lord only knows what there might be to investigate, since the list in question was based on useless data, but that sort of trivia doesn’t stop Ken Paxton. Is there some kind of legal action people could take to force Paxton to fish or cut bait? If there is, I hope they pursue it. If not, I guess we just have to wait.

Paxton sues San Antonio over Chick-fil-A records

We really do live in strange times.

Best mugshot ever

It’s a red-meat issue, but it feeds on chicken.

San Antonio’s decision to exclude Chick-fil-A from its airport continues to resound in political circles. Legislators passed a religious freedom bill that gained steam after it was rebranded as the ‘Save Chick-fil-A bill.’ Gov. Greg Abbott beamed over its success on Twitter.

And Attorney General Ken Paxton, declining to wait for his own department to rule on a public records request, on Monday filed suit against the city to force it to hand over records he wants for his office’s investigation.

[…]

According to the suit filed in Travis County district court on Monday, Paxton’s office requested records on April 11 — including calendars, communications and records of meetings among City Council members, city employees and third parties — related to the city’s decision to remove the restaurant from its airport concessions contract. Paxton’s suit seeks to compel the city to release the records.

“The City of San Antonio claims that it can hide documents because it anticipates being sued,” Paxton said in a statement. “But we’ve simply opened an investigation using the Public Information Act. If a mere investigation is enough to excuse the City of San Antonio from its obligation to be transparent with the people of Texas, then the Public Information Act is a dead letter.”

Nirenberg said in a statement Monday that the city had asked Paxton for clarification on the request but never received a response.

“The fact that he went straight to filing a lawsuit instead of simply answering our questions proves this is all staged political theater,” Nirenberg said.

The deputy city attorney, Edward Guzman, responded to Paxton’s request April 24 saying the city was seeking to withhold some records based on 63 exceptions to the state’s public information act, according to the suit. In a May 2 letter, the city also argued the information is exempt because of litigation that was likely to come from Paxton.

State law exempts the release of information related to “pending or reasonably anticipated” litigation.

San Antonio City Attorney Andy Segovia said in a statement Monday that the city provided nearly 250 pages of documents for review by the Attorney General’s Open Records Division and is still waiting for a decision.

Segovia said the city will comply with any Open Records Division ruling. He also shed doubt on the motivation behind Paxton’s investigation.

“The State Attorney General’s office has not specified the legislative authority they are relying on to investigate the airport contract,” Segovia said. “Furthermore, it is clear from the strident comments in his press release that any ‘investigation’ would be a pretense to justify his own conclusions.”

See here, here, and here for some background. Any resemblance of the arguments in this case to those in the dispute between Paxton’s office and the House Oversight Committee are, I’m sure, totally coincidental. Whatever else happens in this ridiculous case, the Chick-fil-A follies have provided the wingnuts with the grievance they needed to get their “religious liberties” bill through the Lege, so in that sense Paxton et al have already won. The Rivard Report has more.

“Laggards”

You can do something about that, you know.

Best mugshot ever

The Maryland congressman leading an investigation into the error-filled effort to purge suspected noncitizens from Texas voter rolls referred to Texas officials as “laggards” who are taking a “minimalist approach” to satisfying demands on Capitol Hill for emails that could show the origin and motivation for the program.

Jamie Raskin, a Democrat who chairs the Oversight Subcommittee on Civil Rights and Civil Liberties, says his panel will continue to aggressively press Texas for documents despite the resignation last week of Secretary of State David Whitley after scrutiny of the botched effort. Whitley’s five-month tenure in the job ended after state Senate Democrats blocked his appointment.

Raskin said that Georgia, another state under investigation, has sent hundreds of thousands of pages of materials to Washington. But Texas, he said, is cooperating “minimally” and treating the congressional demand as “some kind of unlawful imposition.”

“We’re going to continue to press for meaningful disclosure,” he said. “The sudden departure of the Texas secretary of state only makes us that much more determined to get all the information we sought.”

[…]

A spokesman for the Texas secretary of state’s office said 3,600 pages have been turned over to the panel. In a letter to Raskin and Cummings on May 29, Adam Bitter, the office general counsel, wrote that barring a ruling from Paxton “we do not anticipate producing additional documents in response to your request.”

Raskin observed that his panel has subpoena power, albeit not yet invoked. The back-and-forth suggests an impasse that could wind up in the courts – a likely destination of other disputes simmering at present between Congress and the White House.

See here, here, and here for the background. I mean, this is one of those times where I do believe what Paxton’s office has to say. The only way the committee, and by extension the public, is going to get any more information out of them is by forcing them to cough it up. That starts with a subpoena, and ends with a court order. Seems to me there’s no reason not to get that process started now.

Will the next SOS be any better than David Whitley?

Anything is possible, but don’t count on it.

Still the only voter ID anyone should need

Voting rights advocates are celebrating Whitley’s forced departure, but said they have no illusions that his successor will be any more committed to upholding voting rights for all Texans.

“There is certainly every reason to believe that these types of voter suppression tactics will continue with the next nominee,” Anthony Gutierrez, executive director of the government watchdog group Common Cause Texas, told ThinkProgress.

Glen Maxey, legislative affairs director for the Texas Democratic Party, told ThinkProgress that Whitley had promised Democratic and Republican officials shortly after assuming office in January that he would run a fair election system.

Within weeks, however, Whitley drew up a list of nearly 100,000 people he wrongfully identified as non-citizens, saying they had to be deleted from voter rolls. Most, as it turns out, actually were U.S. citizens, and a federal judge blocked his plan to expunge the names.

Abbott — who himself has a long history of pushing voter suppression efforts — will now get to pick someone to replace Whitley as the state’s chief election official, a critically important position looking ahead to 2020.

Gutierrez said he was not overly optimistic that a change in personnel will lead to the end of Republican voter suppression efforts.

“Texas has a long history of using systemic obstacles to limit participation,” Gutierrez said. “I have no question that we’ll keep seeing a variety of voter suppression tactics until we have a greater number of legislators and statewide elected officials who want to see more Texans voting and participating in our democracy.”

[…]

Maxey said he believes the massive voter purge attempted by Whitley was probably the brainchild of Gov. Abbott or Attorney General Ken Paxton, and suspects that Whitley simply was carrying out orders.

“He did not come up with this plan on his own. He wasn’t even in office long enough to come up with it,” he said. “Either he was boldface lying to us or it was something that happened that was cast with his signature or his name attached.”

I think that’s probably right. At the very least, I think if Whitley had done all this on his own, and screwed it up in such spectacular fashion, he wouldn’t have Abbott and all the rest of the DPS-blaming enablers backing him. Ken Paxton surely had a hand in it as well. The best case scenario here is Abbott appoints someone competent and conscientious who actually does care about the integrity of the data, which leads them to stay away from hair-brained schemes to “cleanse” the voter rolls via noisy data and weak matches. The worst case scenario is that Abbott appoints someone who is competent at carrying out such a scheme. Either way, we can’t afford to ease up on vigilance.

On a related note, the Trib has a deep dive into how things went down in the Senate in the latter days as Abbott tried to get Whitley confirmed.

The pressure on the Democrats intensified as the legislative session pressed on. Some senators had received calls from business associates, clients and donors, who had apparently been nudged by the governor’s office to encourage them to back Whitley, and they were facing veto threats, said Sen. Borris Miles, a Houston Democrat who did not receive such overtures but said he heard from his colleagues about them.

But with the i’s dotted and the t’s soon to be crossed on Abbott’s top legislative priorities, his office made a final, last-minute push to sway Senate Democrats in the final days of the legislative session, multiple sources said.

And some Democrats whom Abbott hoped to turn were brought in individually. State Sen. Judith Zaffirini, D-Laredo, was called to Abbott’s office on Saturday, where the governor asked her, in a one-on-one meeting, to support his nominee.

“He said he would like for me to vote for David, and I said that I couldn’t — I wished I could, but I couldn’t,” Zaffirini said in an interview this week. “I like David … and he’s a good person. But he made a terrible mistake.”

On Monday, two of her bills were vetoed — one to increase transparency at the State Commission on Judicial Conduct and one to allow for specialized courts for guardianship cases. Both had passed both chambers with near-unanimous support and were championed by Republican sponsors in the House.

“I was surprised to see them vetoed, and I was surprised to see the veto so early,” Zaffirini said, and she “disagreed” with the reasoning Abbott gave.

[…]

Miles, who said he wasn’t facing threats of vetoes, said tit-for-tat menacing would seem out of character for Abbott — a governor the Democrats say is generally professional. But he confirmed that some of his colleagues had clearly been targeted with pressure.

“Yes, there were runs at individual members, and we had to secure them and let them know this was not something we could go on without,” Miles said. “There were some threats of vetoing bills.”

On Sunday evening, the day before the Legislature had to gavel out, [Sen. Jose] Rodríguez said the Senate GOP Caucus Chair, Paul Bettencourt, came by to test the waters.

“At one point, he came over and said, ‘Would y’all be okay with the lieutenant governor calling up Whitley to take an up and down vote? He doesn’t want any questions or speeches. We know you have him blocked, but the governor wants a vote on it,’” Rodríguez recalled.

Rodríguez told Bettencourt that if a vote were called, he and other Democrats were prepared with “pages and pages” of questions, enough to delay for hours — effectively killing the bills still sitting vulnerable on the calendar on the last day the Senate could approve legislation.

Ultimately, no vote was called.

It’s worth reading. I know Abbott really likes Whitley and all, but I continue to be amazed that no one ever thought to advise him to take responsibility, admit his errors, apologize, and promise to do better. Did they not think it was necessary, did they think that some combination of sweet talk and veto threats would be enough, did they have some other strategy in mind? I wish I knew.

One simple thing the Republicans could do to maybe get David Whitley confirmed

This is a long story about how Democratic Senators are being very careful to either be in attendance at all times or get a commitment that there won’t be a vote on Secretary of State David Whitley in the event they have to be absent. This is because it takes a two-thirds vote of the Senators who are present for him to be confirmed. With a 19-12 split in the Senate and all Dems committed to opposing Whitley, one Dem could be missing and preserve the margin, but if two are out then the Republicans could bring it up and push it through. Dems have not given them that opportunity, and want to keep it that way in the waning days.

Which got me to thinking there might be a shananigan-free way to resolve this that doesn’t put Dems like Sen. Menendez (who will miss his son’s fifth-grade graduation to maintain numbers) in a spot. I for one would be willing to let Dems vote for David Whitley if Ken Paxton fully cooperates with the House Oversight Committee, and turns over every document they ask for in a timely fashion. Paxton of course should do this without needing to be coerced, but that’s politics. Anyway, it’s a simple enough deal. We’ll give you Whitley, you give Elijah Cummings and Jamie Raskin the docs they seek. Your move, guys.

(Note: I am in no way authorized to speak for any Democratic Senator, nor do I intend to. Other people may well think this proposal is hot garbage. I’m just saying that we want things and they want things, and this is one possible way for both of us to get those things. Your mileage may vary.)

Anti-Israel boycott law amended

For whatever this is worth.

Gov. Greg Abbott this week signed a bill into law that limits the scope of a controversial anti-Israel boycott law, just weeks after a federal judge temporarily blocked its enforcement in an ongoing First Amendment lawsuit.

The 2017 law — which seeks to combat the Boycotts, Divestments and Sanctions movement, an international protest over Israel’s treatment of Palestinians — prohibits state agencies from investing in and contracting with companies that boycott Israel. It also requires anyone contracting with the state to pledge in writing that it will not boycott Israel.

The changes Abbott signed into law Tuesday make it only applicable to contracts of at least $100,000 with companies with 10 or more full-time employees. Legislators who support the law have said they never intended for it to impact individuals or small businesses.

Texas Attorney General Ken Paxton, who had appealed the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit, did not waste time in filing a motion to dismiss the federal lawsuit brought by several Texas contractors who claimed it violated their right to free speech.

In the motion filed Wednesday, Paxton argued that “this legislative enactment is exactly the kind of development that the Fifth Circuit has recognized will render a case moot.”

ACLU of Texas spokeswoman Imelda Mejia said the agency, which is representing some of the plaintiffs in the suit, said the agency is “analyzing the new law and its possible implications on our case.”

[…]

Federal judges have struck down laws in Arizona and Kansas and upheld one in Arkansas; all are on appeal but the Kansas law.

There, after the Kansas Legislature made nearly identical changes to those signed by Abbott on Tuesday, the American Civil Liberties Union, lacking an affected plaintiff, agreed to dismiss its lawsuit.

See here for the background. Given that the lawsuit in question involved an individual who would no longer be affected by the law, it probably is the case that a motion to dismiss would succeed. That said – and here I put on my I Am Not A Lawyer hat – I don’t think the change to the law fixes the underlying constitutional problem. We’ll see if the court agrees.

Paxton again refuses to comply with House Oversight Committee

It’s like he has no interest in oversight, or something.

Best mugshot ever

Texas Attorney General Ken Paxton’s office this week again denied a request for a records by a U.S. House panel seeking to investigate the state’s botched voter purge program.

[…]

While the Attorney General’s office has refused to release documents, Secretary of State David Whitley’s office said Tuesday it has released more than 1,000 pages of documents in response to the request and plans to produce more by the end of the week now that the federal lawsuit has been settled.

Whitley’s office continues to withhold other documents it says are exempt from disclosure because of attorney-client privilege.

First Assistant Attorney General Jeff Mateer in a letter Monday reiterated his claim that the House committee lacks the authority to force the secretary of state to produce documents.

Rep. Jamie Raskin, D-Md., chairman of the Oversight Subcommittee on Civil Rights and Civil Liberties, has rejected that claim but last month stopped short of threatening a subpoena if the Texas officials don’t hand over the documents requested — including emails with Gov. Greg Abbott and Trump administration officials about the attempted voter purge.

In the letter Monday, Mateer said the ability of Congress to pass laws to protect voter rights does not “override the inherent and reserved power” of the state to maintain its own voter rolls.

“Granting Congress the power to exercise ‘oversight’ over the constitutional officers of a state engaged in the lawful exercise of that state’s core authority would undermine the fabric of our system of dual sovereignty,” Mateer wrote. “In this case, that risk would be made particularly acute by the committee’s attempt to force the constitutionally-designated attorney for the State of Texas to divulge privileged and confidential communications with a client concerning the client’s enforcement of Texas law.”

Mateer added that the committee lacked a “valid legislative purpose” for the investigation, which the committee has disputed.

See here and here for the background. Note the similarity in the responses by Jeff Mateer and Donald Trump’s attorneys. It’s not an accident or a coincidence. I say it’s time to break out the subpoenas, and to go to court as needed to enforce them. If this is how they want to play this, then let’s quit fooling around and cut to the chase.

Undead “religious liberty” bill passes Senate

Ladies and gentlemen, I give you Scott Braddock:

Here’s the story.

Over the fierce opposition of Democrats, the Texas Senate on Wednesday advanced a significantly watered-down version of a religious liberty bill whose original form some LGBTQ advocates labeled the most discriminatory piece of legislation filed this session.

The bill requires one more vote from the Senate before it can return to the Texas House, whose LGBTQ Caucus killed a nearly-identical proposal on a procedural motion last week. But the House is likely to advance the measure if given a second pass, at least according to the lower chamber’s leadership.

As filed, Sen. Bryan Hughes’ Senate Bill 1978 contained sweeping religious refusals language that brought LGBTQ rights advocates out against it in force. Proponents, for their part, have labeled the Mineola Republican’s proposal the “Save Chick-fil-A Bill,” in reference to a provision that would empower the Texas attorney general to sue San Antonio for excluding the Christian-owned chicken franchise from its airport.

Senate Democrats used every means they had — long lines of questioning, a slew of proposed amendments and a procedural point of order — to fight the bill, or at least tweak it as it was debated. But ultimately, after three hours of discussion, the measure passed on a 19-12 vote, with Brownsville Democrat Eddie Lucio Jr. voting for it and Amarillo Republican Kel Seliger voting against it.

Still, the messy floor fight many advocates feared would load up the bill with discriminatory amendments did not materialize.

The original version of Hughes’ proposal prevented government retaliation against an individual based on that “person’s belief or action in accordance with the person’s sincerely held religious belief or moral conviction, including beliefs or convictions regarding marriage” — language advocates feared would embolden businesses to discriminate against gay Texans. The revision, which Hughes made on the floor, outlaws government retaliation against someone based on their association with or support of a religious organization. That revised language is largely duplicative of existing protections for freedom of religion and freedom of association.

But advocates — pointing to the bill’s origins, and to its roots as model legislation from anti-gay efforts across the nation — adamantly opposed the bill, lobbying lawmakers to do so as well. Samantha Smoot, interim director of the advocacy group Equality Texas, said this week the measure is “part of an insidious, coordinated strategy to advance anti-LGBTQ messages and discriminatory public policies.”

[…]

As senators slogged through the debate, one recurring theme from Democratic opposition was: Why spend time on a controversial measure when there are so many other priorities to complete? And, some added, if the bill is largely just a codification of existing protections, why bring it forward at all?

“Can you identify the shortcomings of the Constitution in protecting religious freedom?” asked Sen. Carol Alvarado, D-Houston.

“This is covered under the First Amendment, so I’m not sure what your angle is,” she added, after reading from it.

Responding to such questions, Hughes called the measure an important “vehicle for protecting those First Amendment rights.”

That vehicle could come in the form of a lawsuit from the Texas attorney general, who under Hughes’ legislation would be empowered to sue governmental entities accused of discriminating based on religious affiliations. One likely candidate for such a lawsuit is the fast food franchise Chick-fil-A, which was recently blocked from opening a restaurant in the San Antonio Airport after a member of the city council said he could not support a company with “a legacy of anti-LGBTQ behavior.”

See here for the background. Lord knows, if there’s one thing we need, it’s an excuse for Ken Paxton to launch another religion-fueled legal crusade. The main thing to keep an eye on here is the clock, as time is running down for this to be approved by the House. Call your State Rep and urge them to oppose SB1978. Every little bit will help.

(Also, too: How long has it been since I’ve wondered when the hell we’ll finally rid ourselves of Sen. Eddie Lucio? Because holy cow, he sucks.)

The SOS voter purge may be over, but Ken Paxton is unaccounted for

Keep an eye on this.

Best mugshot ever

After the judge approved the settlement, the original list of voters was scrapped. Under the agreement, Texas officials now will only flag names of people who have said they’re not citizens after they have registered to vote.

[Joaquin Gonzalez, a voting rights attorney with the Texas Civil Rights Project,] said the settlement requires that he and the other plaintiffs be able to oversee how the state carries out this more limited voter investigation.

“We get numbers of people that have been matched, so that we can tell if there is something that appears to be going wrong in the process,” he said.

[…]

But there’s one issue that wasn’t dealt with: Attorney General Ken Paxton’s plans.

When the original voter removal effort was announced, Paxton – the state’s top prosecutor – said he would “spare no effort in assisting” with those cases.

Because of that, plaintiffs named him in their lawsuits. A federal judge removed him, however, because he doesn’t have the power to actually cancel voter registrations.

Perales said it’s unclear what Paxton will do following the settlement.

“Ken Paxton has said contradictory things about this voter purge that came out of the Texas Secretary of State’s office,” she said.

For example, when lawmakers raised questions about the state’s effort earlier this year, Paxton said he didn’t have the time or resources to go through the list and investigate people.

“At the same time, Ken Paxton’s office has claimed that they are still investigating – or doing some kind of investigation – of registered voters who may be non-U.S. citizens,” Perales said.

Paxton’s Office also has been shielding documents related to the voter-removal effort from public view.

In a letter to media organizations and others, the open records division of his office has said, “the information at issue relates to an open criminal investigation conducted by the [Office of the Attorney General’s] Election Fraud Section of the Criminal Prosecutions Division. Further, the OAG states release of the information at issue would interfere with the pending investigation.”

See here for the background. I was wondering about this myself when the settlement terms were announced. It goes without saying that Ken Paxton cannot be trusted. If he has the opportunity to press forward with any of these cases, on whatever grounds, he will. I strongly suspect that all of the attorneys for the plaintiffs will need to keep their evidence files close at hand, ready to whip out for a new motion when and if Paxton strikes. Do not let him try to make wine from the fruit of the poisoned tree.

On a side note, this story also addresses the question of why the state settled instead of appealing, as they usually do:

Gonzalez said he thinks state officials did that partly because the legal challenge was looming over Whitley’s confirmation as secretary of state. He had only recently been appointed when he announced the voter list. Gonzalez said state officials backed off when Senate Democrats vowed to block his confirmation.

“Their opposition to the nomination, we believe, is [part of what] provided the leverage for the state to be willing to settle this in the first case, because the state doesn’t settle voting rights cases like this,” he said.

Maybe. Doesn’t seem to have helped, but I can see the logic. I still feel like there was more to it than this, but I can believe this was a factor.

House passes bill to legalize fantasy sports

Hey, what do you know?

The Texas House gave an initial stamp of approval Wednesday to a bill that would classify fantasy sports as games of skill, not of chance, that are therefore legal.

House Bill 2303 by state Rep. Joe Moody, D-El Paso, passed the chamber on a 116-27 vote. It still needs another vote from the House before it can be sent to the Senate for consideration. (Update, May 2: The House voted to give the measure final approval.)

Fantasy sports allows fans to draft real players from various sporting leagues to create a fictional team. The players’ real-time statistics are then compiled, and the team with the highest overall ranking wins. Fans can track their teams through websites or apps.

While critics say fantasy sports sites are hubs for illegal online gambling, others contend the games are based on skill and are therefore legitimate. Lawmakers have filed similar measures in the past, but to no avail.

Attorney General Ken Paxton issued a nonbinding opinion in January 2016 equating fantasy sports sites to online gambling, which is illegal.

“House Bill 2303 simply seeks to clarify state law and confirm that skill-based fantasy sports are legal and therefore not an act of gambling,” Moody said. “It’s very similar to what 19 other states in the country have done in recent years, and the United States Congress made this change in 2006.”

See here for the background. I hadn’t heard anything about this effort before this story was published, so it kind of came out of nowhere for me. Tiem is running down for bills to be heard in the Senate, and I have no idea where this is on the priority list. The odds always favor bills not getting passed. I’ll keep an eye on it.

A closer look at how Texas strongly discourages voting

Well, it strongly discourages some people from voting.

Still the only voter ID anyone should need

Julieta Garibay, a native of Mexico City, was brought to Texas by her mother when she was 12. For 26 years, she was told to assimilate and stay quiet so people wouldn’t hear her accent. Last April, she became a citizen and registered to vote.

In January the state flagged her as one of the 95,000 suspected non-citizens registered to vote, on a list that the state’s chief law enforcement officer, Republican Ken Paxton, trumpeted on social media in all caps as a “VOTER FRAUD ALERT.” It took less than a day for local election officials to find glaring errors on the list, noting many people, including Garibay, were naturalized U.S. citizens and were wrongfully included on it.

“They were trying to say a bunch of U.S. citizens had actually committed fraud,” said Garibay, Texas director and co-founder of United We Dream, an Austin-based immigrant rights group. She is also the lead plaintiff in a lawsuit filed by the Mexican American Legal Defense Fund against the state over the list she says illegally targeted herself and other citizens who are foreign born.

“That’s one of the new tactics that they’re using. How do you put fear into people to believe that there is voter fraud happening in Texas and in many other states? How do you make sure you keep them quiet?” she said.

Garibay was one of the speakers at The Summit on Race in America, a three-day symposium hosted by the LBJ Foundation in Austin featuring civil rights icons, leaders, activists, musicians and comedians examining the progress and failures of the past half-century. Among the biggest challenges discussed were state-led efforts to chip away at the Voting Rights Act of 1965 signed by President Lyndon B. Johnson.

The Texas Legislature now is considering a bill that would punish those who vote illegally with up to two years in jail. Even if the illegal vote was a mistake — for example, a felon who didn’t know he was ineligible to vote until his probation ended — the penalty would be the same as for felony charges such as driving drunk with a child in the car or stealing up to $20,000. It wouldn’t matter if the ballot was never counted.

“We don’t really understand the argument about the chilling effect that would have,” said Sen. Bryan Hughes, R-Mineola, who is sponsoring the bill. “We’re trying to thread the needle to make sure folks aren’t cheating while we try to protect the right of every eligible voter.”

The main intention of that bogus SOS advisory was to kick people off the voter rolls, without any real concern about accuracy. That much is clear from everything we have learned about how it proceeded. But that wasn’t the only goal. Threatening prosecutions of people who voted in good faith is all about sending a message to low-propensity voters, the kind that Democrats worked very hard to turn out in 2018 and hope to turn out in greater numbers in 2020. If even a few people who weren’t on that list look at the news and conclude that voting, or registering to vote, is too risky, then mission accomplished. Greg Abbott and Ken Paxton can understand the numbers when they’re explained to them as well. A smaller electorate benefits them. Why wouldn’t they exercise their power to keep it that way? If you think I’m being overly harsh or cynical, please tell me what in the recent history of Texas politics would motivate you to giving them any benefit of the doubt? They’ve been quite clear about their intentions all along. It’s on us to believe them and take them seriously. The Statesman has more.