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If “bad apples” are the problem, then shouldn’t getting rid of them be a high priority?

This San Antonio Report story is about the nine-year saga of the Redus family to get justice for their son Cameron, who was killed by University of the Incarnate Word (UIW) police officer Christopher Carter in 2013 outside Redus’ apartment. Carter has said in reports and depositions that he observed Redus getting into his car late at night while appearing to be drunk and followed him home to his apartment complex. (Redus happened to be a UIW student, which Carter didn’t know as he first observed him.) At the apartment complex, Carter shot and killed Redus, claiming that Redus had attacked him. All the evidence that has been found about the shooting contradicts that claim. By any reckoning, the shooting of Cameron Redus was completely unjustified.

The wrongful death litigation has been ongoing for several years, with UIW declining to settle despite a lot of pressure being put on them to do so. The lawsuit just survived a motion to dismiss by the 4th Court of Appeals, which led to this overview of the case by the San Antonio Report. I want to highlight the bits in there about Carter’s record as a police officer.

If the case finally goes to trial, Carter’s troubled past as a peace officer and UIW’s failure to conduct a background check before hiring Carter in 2011, or provide him with significant training afterwards, will come under the spotlight, according to pretrial depositions.

So will a number of incidents involving Carter during his time at UIW, including a middle-of-the-night intrusion into a female student’s dorm room under the guise of investigating a campus fender-bender, an episode that occurred two months before the Redus shooting. A formal complaint by the student’s family resulted in Carter’s supervisors acknowledging the officer’s unacceptable behavior and warning the student to avoid on-campus encounters with Carter.

Other allegations reported by fellow UIW officers: Carter twice unholstered his service weapon on campus in inappropriate shows of bravado and took part in an illegal, on-campus shooting of pigeons after police vehicles were soiled by the birds. Carter was formally reprimanded by his supervisor for verbally abusing and intimidating people on the Incarnate Word High School campus while directing traffic.

None of his transgressions or past issues in other law enforcement jobs led to serious disciplinary actions or a decision to terminate him from the campus force, even though other officers and UIW employees have told me Carter was widely regarded as a pariah unsuited to carry a gun or wear a badge.

[…]

Pretrial depositions raise serious questions about UIW’s hiring practices for its police force. Sources at UTSA and Trinity University told me Carter applied for positions there at the time, but his evident inability to hold a job led them to ignore his application.

Carter said he worked as a convenience store clerk and pawn shop manager trainee after earning a criminal justice degree from UTSA in 1997. He attended San Antonio College’s Law Enforcement Training Academy from 2003 through 2004 where he earned his peace officer’s license.

From September 2004 when he was hired as an unpaid reserve deputy for the City of Marion until May 2011 when he was hired as a full-time campus police officer for UIW, Carter held nine different law enforcement or security jobs, most only for a matter of months, according to his deposition testimony.

Carter said he lasted six months in the unpaid position with the City of Marion; eight months as an unpaid reserve officer with the City of Cibolo; six months as an unpaid support deputy with the Bexar County Sheriff’s Department; three months as a paid deputy with the Atascosa County Sheriff’s Department; six months as a paid court bailiff with the Bexar County Sheriff’s Department; six months as a licensed private investigator for Hub International insurance company; five months as a part time reserve officer for the City of San Antonio’s Marshal Unit, working nights as a municipal court bailiff; seven months as a night patrol officer for the City of Mathis, where he was fired for reasons Carter said he cannot recall; and six months as a code enforcement officer and peace officer for the City of George West.

Carter was hired by UIW as a campus police officer in May 2011 and was placed on paid administrative leave after fatally shooting Redus in December 2013. One year later, university officials allowed him to resign in good standing.

Since then, after applying without success for dozens of positions with various area law enforcement agencies, including applications to the City of San Antonio and Bexar County, Carter was finally hired in December 2015 for a part-time job in the City of Orange Grove in Jim Wells County, which he held for six months until May 2016. Carter was then rehired by the City of Mathis, but was fired after 11 months in March 2017.

Carter’s last job in law enforcement was with the City of Poteet, where he began as a reserve officer before moving into a full-time position. That employment ended after three-and-a-half years in November 2020 when he said he “retired” to return to San Antonio to care for family members.

A UIW panel that conducted a single pre-employment interview with Carter in April 2011 did not press him about his inability to hold a job for long, and did not ask why he was terminated by the City of Mathis, Carter said in his deposition. Carter said UIW did not require him to take any verbal or written tests, and he was never shown the university police department’s 113-page policy and procedures manual.

Carter said he did not meet UIW Police Chief Jacob Colunga prior to his hiring, and initial on-the-job training was limited to shadowing another UIW officer for two weeks. Colunga was demoted in 2014, months after the shooting.

Author Robert Rivard, who has been a longtime critic of UIW for its behavior in this incident, turned that into an editorial decrying the common practice of cops being able to go from one job to the next even as their performance demonstrates their inability to do that job. Even a cursory glance at Carter’s career would make one wonder why any law enforcement agency would hire him, and if they did hire him why they wouldn’t train him relentlessly to make sure he was up to snuff. The consequences for not doing those things are predictable and tragic. And all of this is before we take race into account – Cameron Redus, unlike many other high-profile victims of police violence, was white. These consequences so often and so regularly fall on people of color, and for the most part are invisible to many of us. But they’re very much there.

The “bad apples” explanation for police violence is woefully inadequate, but it is the case that a small number of police officers at any agency are disproportionately responsible for unjust and violent actions. It’s hard enough getting those officers off the force, but when that does happen – often through non-official means, which allows said officers to resign in good standing – they can almost always find employment elsewhere, with few to no questions asked. Tom Coleman, the undercover cop responsible for the arrest and conviction of dozens of innocent Black residents of Tulia, Texas, is another prime example of this. It’s long past time for us to ask the question why this is so, and what we should be doing about it.

Texas Two-Step (TM)

What a tale.

After two years experimenting with an old Persian family technique using grains and raisins, Ali Ansari finally nailed his new vodka recipe. He poured $4 million into building a distillery outside of Houston and branded his drink DASH, hoping it would evoke a slow-sipping spirit — “one dash at a time,” he explained.

But when it came time to name a new productline, it occurred to him that DASH, which he had thought of as sleek and modern, wasn’t exactly right. “It doesn’t really present Texas,” he said.

Ansari had started several businesses since immigrating nearly 30 years ago to attend school. One thing he’d learned was when it comes to brand loyalty, Texans love Texas. As a guiding spirit, Austin-based Tito’s Vodka built a multi-billion-dollar empire off its folksy Lone Star roots.

Brainstorming possible names with friends, he hit on a perfect fit. “I used to go dancing with my girlfriend at this old club, Wild West, on Gessner Street,” he said. “We would do the Texas Two Step.”

The words conjured pearl-snapped couples gliding across boot-smoothed dance floors on warm summer nights. People having Texas fun — and, between dances, perhaps enjoying a new and unique adult beverage. Ansari filed an application to trademark Texas Two Step Vodka.

But he was dismayed to learn that a rich and powerful entity already claimed to have locked up the legal right to the famous dance name. It demanded Ansari immediately drop his plans to use the words for his product. When it lost its Two Step case at the U.S. Patent and Trademark Office, it continued to pursue Ansari into federal court.

It was the State of Texas.

Specifically, it was the Texas Lottery Commission that sued him, having trademarked “Texas Two-Step” in 2001 for one of its games. I will admit that as a non-gambling person I had no idea about that, but I will say that if you google “Texas Two Step”, the first results are indeed the Texas Lottery Commission. If Google says it, it must be true.

The funny thing to me is that “Texas Two-Step” was also the name used to describe the primary election process used by Texas Democrats through the year 2008. That was my first year as a precinct chair, and for my troubles I got to lead the caucus part of that – after the vote, there was a caucus in each precinct, which through a process too convoluted to describe eventually led to the number of delegates each Presidential candidate wound up with. You may recall that Hillary Clinton wound up with more delegates than her share of the vote would have provided if it had been based solely on vote totals. Anyway, that was scrapped for something simpler and more sane in 2012, and it is little more than a bit of dusty history now.

Except that as far as I know, the TLC didn’t sue anyone over the use of that name. Maybe because the Dems had used that name prior to the TLC trademarking it, maybe because there wasn’t any money at stake, maybe for some other reason, I don’t know. I’m just saying, maybe the state of Texas could cool its jets here a little and give Mr. Ansari a break. As he said in the story, it’s not like an association with vodka is going to sully the good name of a scratch-off game. Go read the rest and see what you think.

Buzbee blames the NFL for Watson’s short suspension

Surely you expected that Tony Buzbee would have something to say about all this.

For the first woman to sue former Texans quarterback Deshaun Watson —and nearly all those who followed suit — the legal process is over.

They settled their cases alleging sexual assault and harassment. An NFL-hired arbitrator gave the football player a six-week suspension. And two grand juries declined to pursue criminal charges.

Through it all, the NFL and Harris County District Attorney Kim Ogg failed those women, Houston attorney Tony Buzbee said Thursday.

“We are here today with a message to the NFL,” the lawyer said during a news conference. “Every victim of sexual assault is watching (Commissioner) Roger Goodell and the NFL right now. And this idea that Mr. Goodell is going to hand it off to someone independent, we don’t buy it.”

“Mr. Goodell, what will you do?”

[…]

Despite the disappointing decision with the District Attorney’s Office and the league, [Ashley] Solis said she finally feels like she has power.

She described the past two-and-a-half years as “emotionally and mentally tasking.” As the first person to file a lawsuit and the first to speak publicly, she received countless threats from Watson fans. That vitriol sent her into a depression, but letters she received from numerous victims rejuvenated her, she said.

Solis learned that victims have the ability to speak up. They can make changes happen, she said.

“If anyone has ever tried to abuse their status, and overpower you, remind them that they picked the wrong one to try that with,” she said. “That’s exactly what I am – the wrong one.”

Solis was one of 10 women to speak with NFL investigators, Buzbee said. He added that he would’ve made more of his clients available, but he said the NFL “wasn’t really interested in talking to them.”

“It really makes you want to scratch your head and wonder, ‘What the devil is going on?'” Buzbee said.

Arbitrator Sue L. Robinson made note of the NFL’s failure to interview all 24 women in her 16-page report, distancing her decision by saying, “My credibility determinations are based largely on the credibility of the NFL investigators.”

NFL spokesperson Brian McCarthy disputed Buzbee’s claims. He provided a statement that said the league interviewed 49 total people and attempted to interview all of the 24 women who filed suit but the remaining 12 “were not made available by their attorney or did not feel comfortable being interviewed.”

The investigation’s outcome made some of the victims to feel invisible, or as if they had been slapped, Buzbee said.

See here for the previous update. Goodell has already delegated the appeal to someone else, as allowed by the collective bargaining agreement. I think that was the correct thing for him to do, but I can see how Buzbee sees it differently. As for the dispute over how many of the women were available to talk with the NFL as part of the process, I’ll wait and see if there’s evidence to support one side’s claims or the other’s.

In the meantime, now we wait on the appeal.

The NFL Players Association announced Friday that it replied to the NFL’s appeal of Deshaun Watson’s six-game suspension by NFL disciplinary officer Sue L. Robinson for violating the league’s personal conduct policy.

“We have filed our reply brief to the NFL’s appeal regarding the Deshaun Watson matter,’’ the NFLPA said in a statement posted on Twitter.

The union, which had two business days to reply, had no further comment.

The matter is now in the hands of appeals officer Peter C. Harvey, the former New Jersey attorney general who was appointed Thursday by NFL commissioner Roger Goodell. There’s no set timeframe for a decision, but it must be processed on an expedited basis. The two sides — the NFL and NFLPA — can also try to negotiate a settlement before the ruling.

But the NFLPA is still poised to sue in federal court, possibly pending the outcome of the appeal.

“If the new arbitrator increases Watson’s punishment – once again this sets up a legal battle between the union and league challenging the fairness of the penalties and (Roger) Goodell’s authority to penalize the players for their alleged roles,’’ said attorney Daniel Moskowitz, a sports law litigator in Dallas, who has represented several NFL players in NFL investigations involving the personal conduct policy, violation of league substance abuse and other code of conduct policies.

The NFLPA and Watson’s legal team can also file before the decision by Harvey, who helped develop and implement the league’s personal conduct policy.

So we wait. I don’t think this will take very long for the simple reason that it makes sense for there to be a resolution, at least as far as this process goes, before the season begins. After that, who knows. Sean Pendergast has more.

Multiple cities sue streaming services over franchise fees

This has been coming for awhile, it seems.

A lawsuit filed Thursday by 25 Texas cities claims that Disney, Hulu and Netflix have for years stiffed the cities out of dollars the streaming giants are required to pay under state law — and now cities are coming to collect.

Austin, Houston, Dallas and Fort Worth are among the cities that sued the streaming services in Dallas County to recover money they say they has been owed since 2007 and to require the services to pay each year going forward. Under state law, the services have to pay cities a franchise fee — which traditional cable providers also pay — in exchange for using communication lines over public rights of way to transmit their services into homes.

As more people abandon cable subscriptions in favor of streaming services, cities have lost franchise fee revenue — money that goes to fund city services like police and fire protection as well as roads, parks and libraries.

Cities haven’t made up that revenue with fees from streaming services, said Steven Wolens, a former Texas lawmaker and lead attorney for the cities. Even though state law classifies them as video service providers that must pay the fees, the major streamers haven’t paid cities a dime, Wolens said.

“They should have been paying this fee from the very beginning,” Wolens said. “Shame on them because they are using the public right of way that every other company pays the city to use.”

Exactly how much the streaming giants owe Texas cities isn’t known, Wolens said. For a smaller city, the losses could number in the hundreds of thousands of dollars, he said. For a larger city, that figure could be in the millions.

Other Texas cities that joined the lawsuit are Abilene, Allen, Amarillo, Arlington, Beaumont, Carrollton, Denton, Frisco, Garland, Grand Prairie, Irving, Lewisville, McKinney, Mesquite, Nacogdoches, Pearland, Plano, Rowlett, Sugar Land, Tyler and Waco.

The cities are seeking funds dating to when the services launched — Netflix in 2007, Hulu in 2008 and Disney+, The Walt Disney Co.’s streaming service, in late 2019.

The city of Beaumont, which as you can see is involved in this litigation, filed its own lawsuit against these three streaming services in February. I could not find any news about that lawsuit since then, so I don’t know if it has been dropped in favor of the current litigation or if there are now two separate actions. My searching did find that several cities were working on this at least as far back as last year. I’d sure like to see a more in depth story about this, but for now this is what we have. Any lawyers want to offer an opinion on their odds of success? The Chron has more.

Most of the lawsuit against the voter suppression law survives a motion to dismiss

Some good news.

In a limited order this week, a federal judge threw out some civil rights and discrimination claims brought as part of a complex and ongoing legal dispute over strict new voting rules in Texas.

The lawsuit filed last year alleges that the rules violate the U.S. Constitution, the Voting Rights Act and the Americans with Disabilities Act by restricting voter assistance and making it easier for “partisan poll watchers to intimidate voters and poll workers.”

[…]

In his order on Tuesday, U.S. District Court Judge Xavier Rodriguez, a George W. Bush appointee, did not provide a clear win to either side in the protracted legal fight.

On one hand, Rodriguez did agree with Texas officials that civil rights groups had in some cases failed to a state a claim, meaning they could not adequately show a violation of federal law or a potential injury to voters. He dismissed a handful of claims brought by the civil rights groups, which include the League of Women Voters of Texas and the Workers Defense Action Fund.

On the other hand, Rodriguez’s order was hardly kind to Texas officials. Over the course of 61 pages, he detailed not only why civil rights groups had standing to sue, but also how they’d “clearly” established that SB1 could have discriminatory effects on voting rights.

The judge waved off efforts by Texas officials to have more or all of the lawsuit dismissed — including the state’s unusual argument that civil rights groups shouldn’t be able to sue because “the organizations themselves do not have a disability.”

“It is well settled,” Rodriguez wrote, “that an organization may sue as the representative of its members.”

While past filings in this lawsuit have largely hinged on nuances of civil rights law, Tuesday’s order was interesting because it detailed the lived experiences of disabled voters in Texas.

The civil plaintiffs presented examples from at least three voters — all members of the disability voting-rights group REV UP — whom they said could be harmed by Texas’ new voting law.

These examples were “non-exhaustive,” plaintiffs said, and represented just some of the disabled Texans who could face voting difficulties if SB 1 is allowed to stand.

See here for the background. There were multiple lawsuits filed, with the Justice Department getting involved later on. This is the San Antonio lawsuit from that first blog post. I assume that most if not all of these cases have been combined but it’s hard for me to say from the information I have easily available. Democracy Docket has some information on this one, and they provide a PDF that combines multiple orders from Judge Rodriguez; the Courthouse News story only has one of them, which threw me for a minute as I was trying to verify that I was referring to the correct case. This stuff is complicated, y’all.

Anyway. That story goes into two of those examples, and you should read about them, they’re quite compelling. I’m never quite sure if the Republicans who pass these voter suppression bills legitimately don’t care that people such as these plaintiffs won’t be able to vote as a result, or if they just can’t be bothered to hear their stories while the bills are in progress, lest they have some feelings of guilt or remorse, if those are possible for them. The end result is the same, I just want to know how to calibrate my contempt. Anyway, this is in addition to the other voter suppression bill that was struck down – we are apparently at a point where a bunch of these are getting some action, which is always exciting. As usual, nothing is safe until the Fifth Circuit is done with it, and we know what that usually means. So celebrate responsibly, we may be mourning later on.

Further thoughts on the Deshaun Watson suspension

Just a few things I’ve read, to try to understand what happened here. Make of them what you will. Note that I drafted this before the news of the NFL’s appeal.

Pro Football Talk:

How does Watson, who faced 24 lawsuits alleging sexual misconduct during massage therapy sessions, get suspended only six games when Cardinal receiver DeAndre Hopkins was suspended six games for trace amounts of a PED he claims he didn’t know he ingested and Falcons receiver Calvin Ridley was suspended a whole season for making $1,500 in parlay wagers?

On the surface, the answer is easy. These three players were suspended under three completely different policies: Personal Conduct, PED, and gambling.

There’s a more nuanced explanation. The PED policies and gambling policies go directly to the integrity of the game, whether by cheating in it or betting on it. The Personal Conduct Policy relates to off-duty behavior, conduct that has no connection to the league’s core business interests.

Not sure how much that nuance helps, but I suppose it’s worth keeping those distinctions in mind, if only to get the underlying facts straight.

CBS Sports:

There’s a chance that the length of the suspension could still change and that’s because the NFL is allowed to appeal the decision (Watson’s camp could also appeal the decision, but the NFLPA previously announced on Sunday that no appeal would be coming from that end).

If the NFL decides to appeal, it will create a new layer of drama and that’s because the appeal would be heard by NFL commissioner Roger Goodell or someone he designates. As of Monday afternoon though, the league had yet to make a decision about a possible appeal.

“We appreciate Judge Robinson’s diligence and professionalism throughout this process,” the NFL said in a statement. “Pursuant to the collective bargaining agreement, the NFL or the NFLPA on behalf of Watson may appeal the decision within three days. In light of her findings, the league is reviewing Judge Robinson’s imposition of a six-game suspension and will make a determination on next steps.”

[…]

Although the new collective bargaining agreement took away Goodell’s power to hand out a punishment, he didn’t really lose very much power since he’s the one who oversees the appeal process.

Here’s the pertinent language in the CBA:

“The Disciplinary Officer’s disciplinary determination will be final and binding subject only to the right of either party to appeal to the Commissioner. The appeal shall be in writing within three business days of the Disciplinary Officer’s decision, and any response to the appeal shall be filed in writing within two business days thereafter. The appeal shall be limited to arguments why, based on the evidentiary record below, the amount of discipline, if any, should be modified. The Commissioner or his designee will issue a written decision that will constitute full, final and complete disposition of the dispute and will be binding upon the player(s), Club(s) and the parties to this Agreement.”

Based on the language in the CBA, the NFL now has three days to file an appeal in writing. Once the appeal is filed, Goodell (or his designee) will have two days to respond to it.

If the NFL doesn’t appeal, then the case is over and Watson will serve a six-game suspension. It’s possible the league will go this route because it doesn’t want to undermine Robinson’s decision.

In my initial reaction, I said that I’d change “possible” to “highly likely”, and that I could not see the NFL stirring this up when they have a chance to let it go and get on with their business. Clearly, I was wrong about that.

Slate:

Why did Watson skate? It isn’t because Goodell doesn’t understand the seriousness of the situation. Even if only for image maintenance, the NFL wanted a bigger chunk of games. But that does not let the NFL off the hook. It also does not mean all of the fault with the short suspension lies with the arbitrator, whom both management and labor asked to resolve the length of the suspension. At core, Watson will soon be under center for the Browns because the NFL spent years laying two sets of tracks that led straight to this decision and will soon lead the league beyond it. One was a disciplinary system that did not come down hard on violence against women for many years, and which complicated the NFL’s efforts to win a workplace dispute with Watson when it became clear that one of the best, most famous players in the NFL deserved a long, long break away from the game. The other was cultural. The NFL and its giant media industry cultivated an environment where any player as good as Watson can be two things at once—a hero whom fans adore and a commodity that teams crave—and where any inconveniences the real world might impose on those roles are just those: inconveniences. Watson did not get a light punishment because the NFL doesn’t care. He got one because the NFL is a universe where “caring” is not the point.

The contradictory thing about Robinson’s report is that she seems to generally agree with the NFL that Watson behaved horrendously toward his accusers. “Mr. Watson’s pattern of conduct is more egregious than any before reviewed by the NFL,” she writes at one point. She writes that “it is difficult to give weight” to Watson’s wholesale denial not just of any criminal conduct, but of ever having so much as gotten an erection during one of the massages in question. She finds that by the NFL’s definition of sexual assault in its code of conduct, which is “unwanted sexual contact with another person,” Watson committed sexual assault. But Robinson calls Watson’s acts “non-violent sexual assault.” It is a mind-bending phrase. Can any sort of sexual assault be “non-violent”? Is there a way to breach consent and not be violent? Of course not. It is an inherently violent act, whether it involves blood and bruises or not. But to read Robinson’s decision, the NFL’s past laxness toward overt violence made it difficult for her to square the league’s desired punishment of Watson as a matter of workplace policy. “By ignoring past decisions because none involve ‘similar’ conduct, however, the NFL is not just equating violent conduct with non-violent conduct, but has elevated the importance of the latter without any substantial evidence to support its position,” Robinson says. The NFL decided that it cared about this player violating women, but because it hadn’t acted accordingly in the past, it couldn’t impose the punishment it wanted.

My mind is still trying to unbend from that one.

ESPN:

Basically, Robinson is saying something akin to, You want to argue that this behavior deserves a more severe penalty, fine. Maybe you’re right. But that’s not in your policy, and you can’t just make policy to support one specific case as it’s going on. If the league wants to do what it did post-Rice and adjust its policy to account for the type of behavior Watson is herein found guilty of, it should do that — then everyone would know.

Interesting argument, for sure, but it answers a lot of the questions about the length of the suspension vis-à-vis some others in the past. She goes on to write, “It is inherently unfair to identify conduct as prohibited only after the conduct has been committed, just as it is inherently unjust to change the penalties for such conduct after the fact.”

Remember, Robinson first decided she was not starting from a six-game baseline but from one of three games or fewer, based on precedent set by other nonviolent sexual assault cases. As “aggravating factors” (that is, reasons to increase the suspension), she cites Watson’s “lack of expressed remorse and his tardy notice to the NFL of the first-filed lawsuit.” As “mitigating factors” (that is, reasons to go easier on him), she cites “he is a first-time offender and had an excellent reputation in his community prior to these events. He cooperated and has paid restitution.”

Very interestingly, she also notes the league could have placed Watson on the commissioner’s exempt list last year and chose not to, which she appears to think means the league didn’t consider his behavior worthy of such punishment until it saw the public reaction to it. She makes that clear in her conclusion when she writes, “The NFL may be a ‘forward-facing’ organization, but it is not necessarily a forward-looking one. Just as the NFL responded to violent conduct after a public outcry, so it seems the NFL is responding to yet another public outcry about Mr. Watson’s conduct.”

Robinson writes that she settled on six games because it is the largest suspension ever imposed for nonviolent sexual conduct but that Watson’s behavior is more egregious than the behavior that led to previous suspensions for nonviolent sexual conduct.

If the NFL had taken domestic violence seriously from the beginning, we wouldn’t be where we are now.

The Ringer:

The ruling fails to grapple with the serial nature of Watson’s actions, which is essential to the nature of what he did. Some of the women who said Watson harassed or abused them refused to work with him again. Some considered changing careers entirely. And after each woman made clear that Watson’s advances were unwanted and wrong, Watson sought out more women.

Twenty-seven women, six games. Robinson was looking at only four of the cases—was each of those four women worth 1.5 games? If Robinson had ruled on all 27 women who came forward with their accounts of Watson’s misconduct, would he be suspended for 40.5 games? Or perhaps it’s an unsolvable equation, because the NFL’s personal conduct policy left no room for the gray areas of sexual violence or the possibility of multiple accusers.

Robinson’s ruling is based on two guiding principles, both of which are immensely flawed. On the one hand, the ruling emphasizes that the six-game suspension is a matter of precedent based on the league’s previous penalties related to sexual misconduct. This is a mistake. No previous player has been named in so many accounts by so many women. I don’t know the correct punishment for 27 cases, or whether it’s different from the amount that would be correct for 10 or 50 or 75. But how can anybody appeal to precedent when the misconduct itself is so clearly unprecedented? There’s no number that would have felt right, but it’s certainly wrong for the number to be determined by a technicality that doesn’t have anything to do with Watson’s case or the women affected.

[…]

In the end, there’s one easy way to tell that this punishment was too light: by looking at Watson, who spent decision day practicing with the Browns and signing autographs for a mob of fans at training camp. Watson has avoided criminal charges and settled 23 of the 24 lawsuits against him. He has not even remotely expressed public contrition for his actions. At this point, it would be possible for him to say some form of “I’m sorry,” or to speak out against sexual violence without admitting personal guilt. He has chosen not to, and he probably never will. (Robinson specifically mentioned Watson’s “lack of expressed remorse” as a factor in her decision, though clearly it didn’t weigh that heavily.)

I don’t have anything insightful to add to that.

Defector:

You do not need to have a PhD in workplace procedures to gather that a policy crafted in response to a public relations crisis will not work. In this case, the NFL created its anti-violence policy in the late 1990s after future Hall of Fame quarterback Warren Moon was arrested for intimate-partner violence, for which he was found not guilty, followed by exposé after exposé from sports reporters about violence by players toward women, all amid the 1990s wave of tough-on-crime legislation. Like many of the pro-police, pro-prison policies of that era, the NFL’s plan to threaten its players into compliance with vague threats of “suspension” failed, has continued to fail, and probably will always fail because bad policy begets bad policy, no matter how many times you rework it, reframe it, or even renegotiate it. The personal conduct policy has been a failure from the moment it was created, (though this has not stopped other major North American sports leagues from copying it for the sake of public relations). Left to its own devices, the NFL will never get this right.

All the NFL can do is try to find a different person to blame, a new figure onto which it can foist this odious burden of reminding us all that a good enough player will always find a way back onto the field, with just their bank account a little lighter. On Monday, that person was retired judge Sue L. Robinson, who issued her decision to suspend Cleveland Browns quarterback Deshaun Watson for six games after two dozen women sued Watson in civil court, all describing various levels of sexual misconduct by him during massage therapy appointments that included finding ways to touch them with his penis and ejaculating on them. Depending on who delivers your sports news, this was seen as either a humiliation for the NFL or great news for Watson’s new team, the Cleveland Browns. But what those quick takes never quite address is why the NFL and pro sports, time and time again, seem utterly clueless about what to do when a player is accused of violence.

[…]

Robinson ended her decision with the equivalent of a legal tongue-lashing for the NFL, essentially telling them that significant changes to how it handles player discipline must be collectively bargained. (“It is inherently unfair to identify conduct as prohibited only after the conduct has been committed, just as it is inherently unjust to change the penalties for such conduct after the fact.”) You could say the NFL has a precedent problem. It’s a problem with a solution—negotiate better rules with players during the next round of collective bargaining. The players would, in return, request significant concessions from the league, and that would be fair because that’s how unions protect the rights of workers. The NFL could completely revamp its conduct policy to include community service, therapy, more preventative measures like education, or one of the many tools shown to actually work. It could even ask for harsher punishments, though it’s always worth remembering that that zero-tolerance policies don’t work and harsh punishment does not deter crime. In return, the league could give players truly guaranteed contracts, better healthcare, or agree to stop extending the regular season. All of this would be fair and likely would withstand the scrutiny of a retired judge, like Robinson, if the league chose to go this route.

The NFL will never do it.

Diana Moskovitz has been on the sports-and-crime-and-society beat for a long time, and she’s always a must read on these stories.

And here’s one more from The Ringer, post-appeal by the NFL.

The danger of a short suspension for Watson, then, is twofold: First, the media scrutiny if he were to return in mid-October would be intense. The NFL could weather that. But the second and biggest problem with a short suspension is that the Watson saga is still ongoing. It hasn’t even been two months since Vrentas’s most recent bombshell report: that Watson met with at least 66 women for massages within a 17-month period, and that the Houston Texans helped facilitate appointments and even provided Watson with nondisclosure agreements. One lawsuit is still active. Optically—and a lot of this is optics—it’s bad for the league to have Watson play in October. But even worse, the depth and scope of the story means that there may be more reporting to come, more shoes to drop. The outside investigations are not going away. The women involved in these cases are not going away simply because Watson might return to the field.

The NFL had to appeal for any number of reasons: First, Robinson’s report savages Watson’s behavior but makes clear that the six-game suspension was based on her belief that the NFL can’t make wholesale changes to its suspension lengths without prior notice to the players. The ruling came from an extremely narrow interpretation of the CBA, while the NFL, on the other hand, has a long history of changing rules quickly and without much notice. Also, there’s the matter of Watson not showing any remorse for his actions or admitting any wrongdoing—both factors that were cited to his detriment in Robinson’s report. In fact, reporters on Wednesday said that Watson’s camp still believed six games was too much.

If Watson’s suspension had stayed at six games, it would have kept a broken system broken. Not just because it would mean that virtually no personal conduct policy violation could extend beyond six games, but because it would reward a franchise that went all in on one of the most reckless moves in modern NFL history. It’s important to note here that a handful of teams would have loved to have Watson on their team, which is why the cost to trade for him this spring was so high in picks, and eventually money. The Browns were the ones who guaranteed him a fifth year. The Browns were the team that, just after a grand jury declined to indict Watson, gave him more leverage and the largest fully guaranteed deal in NFL history. Watson’s no-trade clause meant he could pick his destination, and Cleveland did everything it could to ensure it would be his choice.

I don’t know how much any of this helped me make sense of it all, but I feel like I needed to read all this. Hope it helped you a little.

State ordered to turn over voter purge data

Very good.

Still the only voter ID anyone should need

A federal judge ruled this week that the state is violating U.S. law by refusing to release its list of more than 11,000 registered voters that it identified as potential noncitizens, and ordered the release of the data within 14 days.

A coalition of civil rights groups sued the Secretary of State’s Office in February for withholding the data concerning a voter purge program targeting immigrants that was mandated by a new Republican-backed election law.

The new elections law, passed after a heated partisan battle last summer, requires that the office conduct regular sweeps of the voter rolls to verify citizenship status by cross-checking data provided by the Texas Department of Public of Safety.

The groups are concerned that thousands of immigrants could have their voter registrations canceled based on outdated or incorrect records, a potential repeat of a botched voter purge in 2019 that ended with a court settlement restricting who could be targeted in future purges.

The state had attempted to cancel registrations of almost 100,000 registered voters, but many were later found to be naturalized citizens or others who had been flagged in error. About 70,000 immigrants are naturalized in Texas each year on average and become eligible to vote.

Without the data on the purge initiated earlier this year, the groups say they can’t confirm that the state is complying with the 2019 settlement agreement. Within months of the new program’s launch, county officials warned the state that the lists included people who registered to vote at their naturalization ceremonies.

“We’ve kind of seen this movie before in 2019,” said Danielle Lang, senior director for voting rights at the Campaign Legal Center, which represented the civil rights groups. “Unfortunately, anecdotal evidence suggests the same thing is happening despite Texas’ claims that it’s following 2019 settlement agreement. We’re glad to finally be able to get access to the data, so the public can better understand what this process looks like and why eligible citizens are being caught up in the system.”

See here for the background. The Secretary of State has amply demonstrated that it cannot be trusted in matters like this. They need to be watched like a hawk, and that means they need to be completely transparent about every step they take. As with the other voter registration case we heard about this week (*), the Fifth Circuit is a threat, but maybe not as bog a threat in this one. The state could accept the ruling and provide the data – surely they want to show they have nothing to hide, right? – but I’m not that naive. We’ll see what they do next.

(*) As it happens, the judge for both of these cases is Lee Yeakel, a George W. Bush appointee. He has had himself a busy week.

Law against some new voter registration restrictions is struck down

Good, though one must always remember the threat of the Fifth Circuit.

Still the only voter ID anyone should need

A federal judge on Tuesday night blocked a Texas law passed in 2021 that put new restrictions on people trying to register to vote in the state.

The decision by U.S. District Court Judge Lee Yeakel was celebrated by one of the Latino groups that had sued the state and claimed the law was an attempt to disenfranchise Latino voters.

Senate Bill 1111 was passed during the 2021 Texas Legislative session. The bill, which passed the House and Senate on party-line votes, required people who register to vote using a P.O. box to provide proof of a home address to ensure that they vote only in eligible elections.

[…]

The law didn’t bar people from using P.O. boxes for voter registration, but required people registering to vote with a post office box to provide other proof, like a drivers license or utility bill, to show proof of address. The lawsuit called that requirement an unfair burden.

Part of the lawsuit challenged a section of the law that prohibited people from establishing residence “for the purpose of influencing the outcome of a certain election.” That language could lead to unintended consequences, the groups argued.

The groups, the Texas chapter of League of United Latin American Citizens and Voto Latino, also said they suffered direct harm from the law because they had to divert resources away from their missions to assist its members in overcoming new barriers to registration and voting.

In a summary judgement, Yeakel found that the groups had suffered “direct harms” to their finances and to their First Amendment rights under the law, and that the state used vague language in the law and that parts of the fail “any degree of constitutional scrutiny.”

The judge ruled that the law particularly burdened part-time and off-campus college students, who would be left unable to register both where they have moved and where they have moved from.

“The burden imposed is ‘severe,’ if not insurmountable,” Yeakel wrote. “Such an insurmountable burden is not easily overcome.”

The state was permanently enjoined from enforcing the parts of the election code created by S.B. 1111.

See here for the background. Democracy Docket, which was involved in the litigation, has a more detailed description of what was at issue and what the ruling says.

Specifically, the plaintiffs challenged three major provisions of S.B. 1111 that prohibited voters from registering to vote using a prior address after they moved, prevented voters from registering to vote where they did not live full time and created stricter ID requirements for those registering to vote using a P.O. box. Yesterday, the court prevented Texas officials from enforcing the first two provisions in full and the third P.O. box restriction in part (the court found that Texas cannot enforce the provision if it’s clear to registrars that voters do not permanently reside at the P.O. box address at which they register, but the state can otherwise enforce additional requirements for P.O. box registrations). This means voters will not be subject to the strict residency requirements in S.B. 1111 outside of proving their residence when registering using a P.O. box address.

In the order ruling in favor of the plaintiffs, the court illustrates S.B. 1111’s burden on college students who live on campus and want to register to vote: “The burden imposed [by SB 1111] is ‘severe,’ if not insurmountable. Such an insurmountable burden is not easily overcome. Certainly not by Texas’s stated interest in ensuring Texans only have one residence. Instead the law renders some Texans without any residence [to vote].” However, the court states that Texas’ interests “justify the PO Box Provision” in reference to voters claiming to live at PO box addresses: “Voter-registration fraud is at risk where voters improperly use a PO Box as their residence address; voters may have a PO Box from the United States Postal Service at many post-office locations in Texas, even if the voters’ home or business is elsewhere.” In cases where the voter is not claiming to live at the P.O. box address, the state has no interest in imposing this burden and cannot do so.

Given the shenanigans we see all the damn time with rich people registering at second houses or apartments of convenience (hello, Kubosh Brothers!) or warehouses for the purposes of running for a particular office, I have a hard time believing that Texas really has an interest in “ensuring Texans only have one residence”. Hell, even some people who lived and voted in other states have registered at Texas addresses for that purpose with no problems. The state of Texas, in its current political configuration, cares a lot about where some people say they live when they register to vote, and cares not at all about others. That in and of itself makes this law suspect. I approve of this ruling, but I am aware that the Fifth Circuit exists, and I would expect them to bat this aside as they do any time Ken Paxton comes calling. So don’t celebrate this one just yet. LULAC’s statement on the ruling is here.

Who audits the auditors?

A novel idea. Not sure it will get anywhere, but it does send a message.

Harris County Commissioners Court, by a 3-2 partisan vote, agreed to explore legal options, including a possible lawsuit, to challenge the results of a random drawing by the Texas Secretary of State’s Office that means another round of election scrutiny for Texas’ largest county.

“It ought to be the state of Texas that is audited,” said Precinct 1 Commissioner Rodney Ellis, who proposed the lawsuit. “This place has gone back to the bad old days.”

Harris County learned last week it was one of two large counties chosen for an election audit by state officials, under new procedures lawmakers approved for election scrutiny. It is the second audit of Harris County, after another approved weeks following the 2020 general election.

[…]

Harris and Cameron counties were the two large ones chosen in a drawing from a bucket, the Secretary of State’s office announced; Eastland and Guadalupe counties were the two small counties selected.

Harris County Attorney Christian Menefee, however, questioned the authenticity of the drawing, saying the broadcast of the drawing “looks like a video out of a sketch comedy show.”

“The camera does not show the slips going into the bucket,” Menefee said, noting various aspects of the drawing that are not filmed. “They don’t even show the slips to the camera.”

See here for the background. Just as a reminder, while there have been issues in other elections in Harris County, the November 2020 election ran incredibly smoothly. And the SOS has already done an “audit” of that election, even if they never bothered to release a report on their “audit”.

My guess is that this doesn’t go anywhere, because I can’t see what grounds there are to sue. (Remember: I Am Not A Lawyer. There is an excellent chance that I am full of beans here.) One could argue that Harris County should have been exempted from this year’s drawing, as the law states that counties cannot be subjected to this audit in consecutive cycles. But the previous audit was not done under the auspices of that law, so the legal response to that would be some form of “tough luck”. Again, I don’t know what the actual attorneys who will be looking into the legal possibilities may find here, so take all this with an appropriate amount of skepticism. But if you were to bet me a dollar right now that 1) Harris County would file a suit as threatened, and 2) it would result in a temporary restraining order, I would take that bet.

If on the other hand the point of this is to denigrate the audit process, which was created in response to Big Lie mania, I’m fine with that. If the idea is to suggest that the state can’t be trusted to conduct a fair random drawing, let alone a fair audit process, that works for me. Judge Hidalgo spoke about the need to combat Big Lie hysteria, which is doing immense damage to the election process and a whole lot more, in the story. That’s a worthwhile mission. If it turns out there really is more to it than that, I’ll be happy to have been proven wrong.

NFL to appeal Watson suspension

Wow. I did not expect that.

The NFL on Wednesday appealed the six-game suspension for Cleveland Browns quarterback Deshaun Watson, seeking a tougher penalty for violating the league’s personal conduct policy in the wake of disciplinary officer Sue L. Robinson’s ruling Monday.

In a statement, the league said it notified the NFL Players Association that it would appeal and then filed its brief Wednesday afternoon.

The league said NFL commissioner Roger Goodell will determine who will hear the appeal. Under the CBA, Goodell has the option to consider the appeal himself or can appoint a designee to do so.

A source told ESPN that the league is appealing for an indefinite suspension that would be a minimum of one year (as it had previously sought), a monetary fine (which Watson was not levied initially by Robinson) and treatment that the star QB must undergo.

The union also had the right to appeal Robinson’s ruling, although it issued a statement Sunday night saying it would “stand by her decision” and not appeal, regardless of the result, and called on the league to agree to the same.

The NFLPA has until Friday to file a written response to the NFL’s appeal. Sources told ESPN’s Jeff Darlington on Wednesday that the NFLPA was preparing to sue the NFL in federal court if it appealed Robinson’s decision.

Once the NFLPA files its response, Goodell will decide to hear the appeal himself or appoint a designee — a source told Darlington on Wednesday that he’s yet to formalize a decision on who will do it — and that will be followed by a hearing date.

Any appeal must be limited to arguments from the evidentiary record from the three-day hearing before Robinson in late June and “without reference to evidence or testimony not previously considered.” It will be processed on an “expedited basis,” per the NFL’s personal conduct policy, although NFL spokesperson Brian McCarthy said there’s no timeline for Goodell or his designee to make a ruling.

Whenever the ruling is made, it will be final and binding to all parties.

[…]

In the days leading up to Robinson’s decision, the NFL and Watson’s side engaged in further settlement talks, sources told ESPN’s Dan Graziano, but neither side ever felt they were close to an agreement.

The most Watson’s side indicated it was willing to offer was a suspension in the range of six to eight games, according to sources. The best the league indicated it was willing to offer was a 12-game suspension and a significant fine — in the range of $8 million, sources said. Since no additional fine was levied, Watson is slated to miss six of his $57,500 game checks in 2022 for a total of $345,000 lost off his $1.035 million base salary.

See here for the background. I had assumed that the NFL would let this go, despite how poorly the ruling was received by the public, on the grounds that it was the least messy path and would get them on the road to putting it all behind them, which is usually what they want in any uncomfortable situation. I’m genuinely surprised by this. I figure it gets chaotic from here, between the promised lawsuit from the NFLPA and the decision Commissioner Goodell will have to make about who actually makes the appeal decision; it would probably be best if he picked a delegate for it. We are in uncharted waters, that much is for sure. CBS Sports has more.

News orgs sue DPS over Uvalde info

Same annoying story, part whatever. Getting public records about this tragedy shouldn’t be this hard to do.

More than a dozen news organizations filed a lawsuit against the Texas Department of Public Safety on Monday, accusing the agency of unlawfully withholding public records related to the May school shooting in Uvalde.

The organizations — which include The Texas Tribune and its partner ProPublica and other local, state and national newsrooms — have each filed requests under the Texas Public Information Act for information detailing the response by various authorities, including law enforcement, to the massacre.

DPS has refused to release records in response to these requests, even as the agency has selectively disclosed some information through public testimonythird-party analyses and news conferences.

“In the immediate aftermath of the tragedy, and continuing throughout the ensuing two months, DPS has declined to provide any meaningful information in response to the Requests regarding the events of that day — despite the unfathomable reality that some 376 members of law enforcement responded to the tragedy, and hundreds of those were in the school or on school property not going into the unlocked classroom where the gunman continued killing helpless youth,” the lawsuit states. “At the same time, DPS has offered conflicting accounts regarding the response of law enforcement, the conduct of its officers, the results of its own investigation, and the agency’s justifications for withholding information from the public.”

[…]

DPS is claiming an exemption for records related to an ongoing investigation, but the news organizations argue there is no such investigation, given the guilt of the gunman is not in dispute and authorities say the 18-year-old acted alone. The local prosecutor, Uvalde County District Attorney Christina Mitchell Busbee, has acknowledged that she is not conducting a criminal investigation.

The records requested include emails; body camera and other video footage; call logs, 911 and other emergency communications; interview notes; forensic and ballistic records; and lists of DPS personnel who responded to the tragedy, among other information.

The plaintiffs include The New York Times Company, The Washington Post, NBC News, CNN, ABC News, CBS News, Scripps Media and Gannett. The Texas Tribune and ProPublica, who also joined the suit, have filed about 70 records requests.

See here and here for some background. It’s not just been DPS that has been resistant to releasing information, but they’ve definitely dug in their heels. However this ends up, expect it to be fought till the bitter end in court.

Perhaps one reason why DPS is so reluctant to give up any of their information is because any time any data about the Uvalde massacre gets released, law enforcement just looks bad.

On July 17, the city of Uvalde released nearly 3.5 hours of video from city police body cameras. The stream of recordings came only hours after a special Texas House committee investigating the massacre issued a report that condemned the law enforcement response as a jumble of missed opportunities and unlearned lessons from past mass shootings.

The recordings — from seven Uvalde officers’ body cameras — show officers anxious, frustrated or confused by conflicting information. Several frantically searched for a master key for Room 111’s door, which apparently was unlocked.

The footage also shows a steadily increasing flow of police officers from other local, state and federal agencies into Robb Elementary, beginning less than 10 minutes after Ramos began shooting inside the classrooms. Some of the police carried rifles. Some wore body armor or full protective gear.

The recordings — especially of the radio message at 12:11 a.m. alerting officers that wounded victims were trapped in the rooms with Ramos — could become pivotal as prosecutors weigh whether to charge some of the responding officers with a crime because of their failure to confront the shooter much earlier in his rampage.

“They’re looking hard at when officers learned about kids being in the classrooms,” said one law enforcement source familiar with the conversations of prosecutors looking into the case. “At what point did (officers) know when the kids called from inside the classrooms?”

Christina Mitchell Busbee, district attorney of Uvalde and Real counties, has declined to comment on the investigation.

The Texas Department of Public Safety and the Texas Rangers are handling the probe, with input from Mitchell’s office. In August, the agencies are expected to hand over their findings to Mitchell, who will decide whether to file any charges.

I don’t know that any of the responding officers should be held criminally liable for their response, but I can damn sure imagine some civil lawsuits against the various agencies involved. But good luck building a case if you don’t have enough evidence.

Deshaun Watson suspended for six games

Feels light to me. And not just to me.

Months after trading six draft picks and committing a fully guaranteed $230 million to land Deshaun Watson from the Texans, the Browns have lost their star quarterback for the first six games of the 2022 season, CBS Sports NFL Insider Josina Anderson reports. Former federal judge Sue L. Robinson determined Monday that Watson should be suspended for six weeks after hearing testimony regarding the former Pro Bowler’s alleged off-field conduct. The QB this offseason faced civil lawsuits from 24 different women accusing him of sexual assault or misconduct.

Under this suspension, Watson will miss the following games to begin Cleveland’s season: at Panthers, vs. Jets, vs. Steelers, at Falcons, vs. Chargers, vs. Patriots. His first game back will be on Oct. 23 when the Browns visit the Ravens in Week 7.

Watson’s suspension arrives after multiple reports indicated the NFL would seek at least a full-season ban for the QB, who recently reached confidential settlements for 20 of the 24 lawsuits. It marks the league’s harshest discipline imposed on a QB since Michael Vick was banned indefinitely in 2009, before serving a nearly two-year prison sentence.

[…]

Watson has the power to appeal his suspension, but the NFLPA announced in a statement on the eve of this ruling that they would not. They also implored the NFL to also not appeal. Any appeal would ultimately be decided by NFL commissioner Roger Goodell, seemingly making it unlikely he could significantly reduce his punishment. (Goodell previously reduced suspensions for Roethlisberger and Vick after in-person meetings, but Watson’s case carries a different magnitude.) The NFLPA could also sue the NFL over unfair discipline in light of certain team owners (i.e. the Commanders’ Daniel Snyder) allegedly receiving more lenient penalties over sexual assault accusations, but in the past, lawsuits over suspensions have only proven to delay, not significantly reduce or overturn, NFL discipline.

See here for the previous update. Here’s the Chron story with some more details (that CBS story was the first one I saw, literally minutes after the news broke).

The NFL, which had pushed for a suspension of at least one year and a fine of $5 million, has three days to appeal. If either side appealed, NFL Commissioner Roger Goodell or someone he designates will make the decision, per terms of the collective bargaining agreement. The union then could try to challenge that ruling in federal court.

Watson’s six-game suspension aligns with past punishments levied against former Steelers quarterback Ben Roethlisberger and Cowboys running back Ezekiel Elliott, who both were accused of sexual assault and were not criminally charged.

There were expectations Watson’s suspension could have been longer. The Watson suspension comes months after the MLB announced a two-year suspension for Dodgers pitcher Trevor Bauer, who faced sexual assault and domestic violence allegations that did not lead to criminal charges.

According to NFL Network’s Tom Pelissero, Robinson’s decision says Watson’s “pattern of behavior was egregious,” but the behavior was “nonviolent sexual conduct.”

The league had pushed for an indefinite suspension of at least one year and a $5 million fine for the 26-year-old Watson during a three-day hearing before Robinson in June. The NFL Players’ Association argued Watson shouldn’t be punished at all because he was not convicted of any crime.

Robinson’s decision focused on information regarding five of the women who sued Watson, according to the Wall Street Journal. Watson, who has repeatedly denied wrongdoing, settled all but four of the lawsuits in June that had been levied against him. NFL spokesman Brian McCarthy said then those settlements would have no impact on the league’s disciplinary process.

I dunno, I feel like Watson’s alleged transgressions were worse, for their cumulative nature if nothing else. I thought that one year was the right amount of suspension, partly because I thought the Trevor Bauer comparison was more accurate, but I could have accepted something like ten or twelve games. I just don’t think six is enough, and I don’t think Deshaun Watson will come away from this thinking anything other than he was exonerated. A look at some other possible points of comparison bolster my opinion on that.

The suspension being limited to six games raises some eyebrows when compared the one-year suspension the league dealt Falcons receiver Calvin Ridley after he was found to have placed $1,500 worth of online parlay wagers when he was away from the team last season.

Six games also is the same punishment given to Cardinals receiver DeAndre Hopkins, Watson’s former teammate in Houston, for having a trace amount of performance-enhancing drugs in his system.

The comparisons can go on and on, including former Saints coach Sean Payton being suspended for a year when his team allegedly had bounties on opponents’ heads and Payton sent an email to his coaches telling them to make sure you “get you ducks in a row” when talking to NFL investigators.

Comparisons of disciplinary actions can often be facile, as there can be multiple dimensions to each decision, but in this case I don’t think you’ll find many examples of people getting less time off for more egregious activity. It’s possible I could change my view over time, but right now I don’t feel like justice was served. More from the Chron and Sean Pendergast.

UPDATE: Per ESPN, Watson has now also settled all but one of the lawsuits pending against him; there had been four remaining, and three are now resolved. That includes the lawsuit filed by Ashley Solis. All in all, Monday was a pretty good day for Deshaun Watson.

TxDOT sued over its enviromental impact assessments

Very interesting.

After college, Michael Moritz got a job in Houston analyzing fatal car crashes. Moritz, a 27-year-old native of San Antonio, stood on Interstate Highway 45, one of the most dangerous stretches of highway in the country, and documented how cars collided. One day in the fall of 2019, he learned that the Texas Department of Transportation intended to expand I-45, supposedly to fix congestion and make the highway safer.

“More lanes just doesn’t equal safety,” he said.

And then he learned about all the other negative impacts of the $7 billion expansion project, which would remake Houston’s downtown and demolish more than 1,000 homes, nearly 350 businesses, five churches and two schools.

He got involved with a grassroots group called Stop TxDOT I-45 and started spending nights and weekends fighting the expansion. Gradually, he met people fighting freeway expansions across the state, including in the capital city of Austin, and joined a regular Zoom call to discuss strategy. He signed up for automated emails from TxDOT to find out when new projects were proposed and approved.

In 2021, just a few days before Christmas, he got two emails from TxDOT. The agency had issued a “finding of no significant impact” — or FONSI, pronounced like Fonzie, the “Happy Days” character — for two segments of a $6 billion project to rebuild and expand Interstate Highway 35, which passes through the heart of Austin. “Really?” he thought. “No impact?”

Moritz was alarmed by the idea that adding lanes to an interstate running through one of the fastest-growing cities in the country was considered to have no environmental impact. The expansion of the north and south segments of I-35 would consume 30 acres of land, affect more than a dozen streams and creeks, and add millions of metric tons of carbon to the atmosphere over the coming decades.

Moritz called up a few activists he knew in Austin. Together, they wondered: How often was TxDOT declaring that its projects had no impact on the human or natural environment? Moritz decided to find out. He searched TxDOT’s online archives for every environmental review published since 2015, as far back as TxDOT’s records extend.

Moritz quickly noticed that many projects that were physically connected had been spliced into segments, as I-35 was in Austin. Loop 88 in Lubbock, notably, had been evaluated in four segments stretching across 36 miles. Collectively, those segments would consume 2,000 acres of land, displace nearly 100 residences and 63 businesses, and cost almost $2 billion. Yet all four segments received findings of no significant impact, three on the same day.

Overall, Moritz discovered that between 2015 and 2022, 130 TxDOT projects were found to have no significant impact after an initial review, while only six received full environmental analyses detailing their impacts. Cumulatively, those 130 projects will consume nearly 12,000 acres of land, add more than 3,000 new lane miles to the state highway system, and displace 477 homes and 376 businesses. The total projected cost of those projects was nearly $24 billion, almost half of what TxDOT spent on transportation projects during that time and twice as much as the amount spent on projects that received full environmental reviews.

“It can’t be argued with a straight face that these big, multihundred-million-dollar projects don’t have significant impact,” says Dennis Grzezinski, an environmental lawyer in Wisconsin who has worked on National Environmental Policy Act cases for three decades and who was not involved in Moritz’s study. He called Moritz’s analysis “a giant red flag” that TxDOT was approving projects in violation of NEPA.

“If TxDOT is producing environmental assessments that result in FONSIs over and over and over again, on large-scale interstates and major highway expansion projects, there is clearly something major that’s wrong and not in line with NEPA requirements,” he says.

Now, a group of activists is suing TxDOT, saying that the agency split the I-35 project into segments in order to obscure its full impacts and “circumvent” the requirements of NEPA. The case, filed in U.S. district court, raises larger questions about the federal government’s decision to give TxDOT the authority to approve its own environmental reviews.

“I think the words ‘no significant impact’ have meaning,” Grzezinski says.

Under NEPA, a 1970 law, any state agency receiving federal funding for a project must document how the project impacts the human and natural environment. That documentation is categorized in one of three ways, depending on the project’s perceived impact. Actions that “significantly affect the environment” require a comprehensive environmental impact statement, which quantifies those impacts, includes specific ways the agency would mitigate them and asks for significant public feedback. (The final environmental impact statement for the Houston highway expansion exceeded 8,000 pages.)

On the other end of the spectrum, relatively minor projects — like repaving an existing road or repairing an interchange — can receive what’s called a categorical exclusion, essentially an exemption from NEPA. Everything in between is considered through an environmental assessment, a relatively concise document, typically a few hundred pages. An environmental assessment leads to either a full environmental review or a finding of no significant impact, which allows the agency to proceed with land acquisition and construction.

But because NEPA covers a broad array of government actions, the law doesn’t define what makes an environmental or social impact “significant” — whether it’s acres of land taken or people displaced — and thus what triggers a full environmental review.

There’s a lot more, so go read the rest; the story was originally published by Grist. I’ve blogged a couple of times about the proposed I-35 expansion, the design for which makes I-45 look almost sedate. It would not be surprising to me if TxDOT had been playing fast and loose with the impact assessments under NEPA – they are allowed some discretion in coming to their assessments, and it would be a lot easier on them and everyone involved with the subsequent construction if they gave certain projects the “no significant impact”. It’s more than a little hard to believe that could be the case with I-35, and if the end result is a full and rigorous examination of TxDOT’s operations, that’s fine with me. This is a federal lawsuit so expect it to take years to come to some kind of resolution, but I’ll try to keep an eye on it.

We talk again about the forthcoming abortion prosecutions

It’s going to be so bad.

A young woman and her mother are nervously driving through the night when they’re pulled over by law enforcement. Flashlights in their faces, the women are questioned about whether they’re heading for the border and whether the young woman might be pregnant, before being pulled out of the car.

This political ad, released ahead of the 2020 election, speculated about what a post-Roe v. Wade future might look like as Republican states sought to crack down on abortion ban violators.

In the weeks since the U.S. Supreme Court overturned the constitutional protection for abortion, the ad went viral, contributing to growing fears of state border checkpoints and widespread data mining to track menstruation and pregnancy outcomes.

“But I think the reality is, the vast majority of these criminal cases are going to begin in kind of more mundane and common ways,” said Emma Roth, staff attorney at National Advocates for Pregnant Women.

Despite fears of unconstitutional legal gambits and Big Brother-style tracking, lawyers and experts predict that much of what is expected to unfold over the coming months and years will look very familiar.

More than 1,700 people have faced criminal charges over pregnancy outcomes since 1973, according to NAPW. Like a woman charged with murder for a “self-induced abortion” in Starr County earlier this year, many pregnant people who get caught up in the criminal justice system are reported to law enforcement by health care workers. Like a woman in Mississippi who was charged with murder after a stillbirth, many people willingly turn over digital records that are used to incriminate them.

Reproductive justice lawyers say they are focused not on preparing for a potential dystopian future like the one presented in the commercial, but on educating health care providers, lawyers and pregnant people about what they can do to protect themselves right now — with the rights they still have available to them.

[…]

Advocates worry that people who self-manage an abortion — or experience a miscarriage that resembles an abortion — may not seek out necessary medical assistance if they fear being prosecuted.

Although Texas’ abortion law specifically exempts pregnant patients, the Starr County case exemplifies the ways they can still get caught up in the system.

“We know that prosecutors are going to try to criminally punish people, irrespective of what the law says,” said Farah Diaz-Tello, senior counsel at If/When/How, a reproductive justice legal nonprofit, in an interview last month. “For us to be able to resist this criminalization, it is important to note that it is unlawful criminalization. Merely being an act of a prosecutor doesn’t mean that it’s the law.”

Pregnant people may also worry about anyone who, in the language of the law, “aided and abetted” or helped “furnish the means” for an abortion — friends who drove them over state lines, someone who mailed them pills, a doctor who provided an ultrasound to ensure they completed the abortion.

“People are living in constant fear [because] they wouldn’t want to do anything that would jeopardize the liberty of their loved ones or their medical providers, and as a result, may avoid necessary health care,” Roth said.

Like I said, that’s a feature and not a bug. Any bad thing that happens to any of these women, they’ll be blamed for it by the forced-birth crowd. And while much of what is to come will be familiar, or at least a callback to fifty years ago, I fully expect there to be new and more horrible things to come as well. We didn’t have pills that could be ordered over the Internet and sent by mail in the 60s, and we didn’t have the myriad ways we have now to dig into people’s personal lives to get information on them. All that, and we haven’t even seen any SB8 vigilante bounty hunter lawsuits filed yet.

Fifth Circuit tosses mask mandate lawsuit filed by disability rights activists

Par for the course.

A federal appeals court on Monday tossed out a lower-court injunction, issued in November, that would have allowed public schools in Texas to ignore Gov. Greg Abbott’s ban on mask mandates.

U.S. District Judge Lee Yeakel of Austin had blocked Abbott’s order as it pertained to schools, ruling that a ban on mandatory face masks improperly endangered students with disabilities and violated the Americans with Disabilities Act by denying them the opportunity to participate equally in school.

Texas appealed, and a month later the 5th U.S. Circuit Court of Appeals blocked enforcement of Yeakel’s injunction while it considered the state’s case.

On Monday, in a 2-1 ruling, the appeals court sided with state officials, tossing out Yeakel’s injunction and dismissing the lawsuit by the students. The court said the students did not prove that the ban on mask mandates put them at imminent and concrete risk of contracting COVID-19.

“In light of widely available vaccines and the schools’ other mitigation efforts, the odds of any particular plaintiff contracting COVID-19 and subsequently suffering complications are speculative,” Judge Andrew Oldham wrote in an opinion joined by Judge Don Willett. Both were appointed by former President Donald Trump.

In addition, Oldham wrote, the Americans with Disabilities Act only ensures that students have access to school, not that they have access to their desired accommodation of universal masking.

“Schools, in turn, have numerous alternatives for mitigating the risks of COVID-19 so plaintiffs have such access. The schools can adopt policies regarding vaccines, plexiglass, hand sanitizer, social distancing, and more,” Oldham wrote. “Plaintiffs have not even attempted to show that one or any combination of these accommodations is insufficient to mitigate the risks of COVID-19 to a level low enough that plaintiffs can attend school.”

In a dissenting opinion, Judge Eugene Davis complained that Oldham mischaracterized the students’ argument by saying they merely feared an increased risk of contracting COVID-19. Instead, the students argued that state Attorney General Ken Paxton’s dogged defense of Abbott’s ban on mask mandates, including lawsuits against school districts and threats of additional litigation, amounted to disability discrimination.

The students also proved that they had been, or will be, harmed by a ban on all mask mandates, even at schools that determine that limited mask orders were a reasonable accommodation for student health, he wrote.

“While all students bear some health risks by attending school in person during the ongoing pandemic, the district court found, and it is undisputed, that these plaintiffs face a much higher risk to their health because of their disabilities,” said Davis, appointed by former President Ronald Reagan.

See here for the previous update, and here for a copy of the opinion. There are still a lot of state lawsuits over the Abbott executive order that banned mask mandates in school, which largely turn on the question of what the Governor’s authority under the 1975 Texas Disaster Act is; the San Antonio ISD vaccine mandate lawsuit is in that same bucket. This was a federal lawsuit that claimed discrimination under the Americans with Disabilities Act. I still think they had a pretty good argument, but it’s the Fifth Circuit, what are you gonna do? I suppose an appeal to SCOTUS is possible, but perhaps not advisable, as it’s probably not a good idea to give them a chance to mess with that law. Texas Public Radio and the ABA Journal have more.

If the only choices are “take it or leave it”, well…

Leave it doesn’t sound so bad given the alternative.

One year ago, opponents of the state’s plan to rebuild Interstate 45 in Houston criticized the “take it or leave it” option state officials offered regarding amending plans for the mega-project.

Tuesday, as part of a public hearing on the state’s long-range plans, opponents opted for leave it, telling the Texas Department of Transportation to drop the 1-45 widening off its list.

“Adding huge swaths of concrete is the opposite of what Houston needs,” Houstonian Joy Fairchild said during a public hearing for TxDOT’s Unified Transportation Program.

The latest UTP, updated annually by the Texas Department, outlines a record $85.1 billion in transportation spending across the state from 2023 to 2032. Though not a guarantee of funding or a commitment to build the projects listed, it details what the state plans to do.

The Texas Transportation Commission is scheduled to approve the UTP at its Aug. 30 meeting. All public comments received by Aug. 8 will be submitted to the commission, including comments from Tuesday’s midday virtual public hearing. People also can comment online, via phone or at local TxDOT offices.

For Houston, more than $6 billion of the plan’s spending centers on I-45, masking it nearly half of the $12.5 billion Houston’s TxDOT district has to spend over the next decade. Estimated to cost at least $9.7 billion, the project would rebuild I-45 from downtown Houston north to Beltway 8, adding two managed lanes in each direction. Some of the project’s cost comes from other non-TxDOT sources, while some of the money dedicated on the project will not be spent until later parts of the construction, likely to stretch beyond 2032.

Though planned for nearly 20 years, concerns intensified five years ago, when groups such as Air Alliance Houston, LINKHouston and Stop TxDOT I-45 organized to argue highway officials should focus more on improving transit and avoid any additional freeway widening.

As the story notes, the I-45 project is on pause while a complaint filed with the Federal Highway Administration over the projects effects on communities of color are investigated. As far as this goes, I don’t think anyone is making any new arguments, and there continues to be a large gap between what activists and local governments want out of the project and what TxDOT is willing to give. I don’t think TxDOT will pull I-45 widening off their list, and if I’m right then I still don’t know what happens next. As things stand now, a whole lot of people will be mad at the outcome, whatever it is.

More on the seafaring abortion clinic

There were a couple of stories on that proposed abortion clinic on a ship in the Gulf of Mexico, which will operate in federal waters and thus be outside state jurisdiction. The clinic is intended to serve women in the Gulf Coast states, all of whom are living in states that are hostile to abortion rights (though it is still legal in Florida for now), and as Dr. Meg Autry, the creator of the idea who is now busy fundraising for it, it would be a lot closer geographically for a lot of these women than other states with legal clinics would be.

All of that is in the two stories. I want to focus on what I fixated on in my original post, which is the security and legal threats to this idea. I’m just going to pull from those sections of the stories. We’ll start with NPR:

Autry and her nonprofit are also hesitant to provide too much detail about how people will be able to access the vessel, citing safety concerns. Without elaborating, she says she anticipates that her group will be a part of the many existing networks trying to coordinate abortion care for people who can’t get it in their state.

People seeking or providing an abortion could face prosecution or, Autry fears, violence. She calls security her group’s top concern.

And she says that while their team is secure in their understanding of the law, it’s bracing for potential legal challenges “along the way, all the time.” That’s in part because of ever-changing laws and lawsuits unfolding in restrictive states.

Amanda Allen, senior counsel and director at the Lawyering Project — which represents PRROWESS — tells NPR over email that there’s no doubt about the legality of providing abortions at sea, because states don’t have jurisdiction over the care provided in federal or international waters. She compares it to the way that an abortion provider in New York would care for a patient traveling from a restrictive state.

Still, she says their team is exploring the same questions that they would look at in the case of a provider looking to open a clinic in a state where abortions are not banned.

Those include whether there are rules governing the facility where the care is provided, and what kind of licensure and staffing is required. They’re also looking at the threats that could face abortion providers — floating or otherwise — who treat patients traveling from restrictive states.

“Given the climate of abortion access post-Dobbs, nothing is zero-risk,” Allen writes. “Because of that we are concerned about the same types of extraterritorial questions that are already creating chaos and legal uncertainty onshore. While a state’s criminal laws should not reach a provider at sea, a rogue prosecutor could choose to target PRROWESS, or a hostile state authority could open an investigation.”

And here’s Yahoo News.

So what does maritime law say about abortions at sea? “Maritime law, by its own force, doesn’t speak to abortions provided at sea,” Matthew Steffey, a professor of law at Mississippi College specializing in maritime law, tells Yahoo Life. “In theory, a maritime treaty could cover the subject, but I don’t know of one that would. Assuming the vessel is outside state territorial waters, a state’s laws would not apply. Outside of waters controlled by a state or nation, the ship’s flag determines the source of law. So the ship’s home country’s laws apply.”

That doesn’t mean there aren’t risks. While Steffey adds that it’s “entirely possible” an “aggressive” district attorney could “seek to bring charges to someone who travels from their jurisdiction to an offshore abortion provider,” he points out that “there is a very good chance that those charges would be ultimately dismissed as violating the U.S. Constitution. Otherwise, a local DA could prosecute anyone for conduct legal in the state where the conduct occurred — such as consuming cannabis, gambling, etc. — once they returned home.”

That said, Steffey notes that “someone who operates a tender vessel to take patients from shore to ship would be taking a great legal risk, as they’d be operating inside the state.”

Autry isn’t willing to share the details on how exactly patients would be ferried from shore to ship for security purposes, but she says, “What we’re most worried about are the patients. Our plan is that our vessel and the provider and the crew will never touch a restricted state. But obviously, the patients have to get there.”

It is one of the many logistical issues that abortion providers and abortion rights advocates are facing right now. “Abortion providers, policymakers and so many others across the country are dedicated to finding ways to ensure people can get the care they need,” Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, tells Yahoo Life. “But the court’s decision has unleashed legal chaos, and as more and more states ban abortion, we face a host of unknown questions about criminal liability, surveillance and potential prosecution.”

Borchelt adds: “We are all navigating a dangerous, appalling and rapidly evolving landscape to help people get care that should be legal, affordable and available but instead is criminalized.”

Slate had an interview with Dr. Autry a few days before those stories; it didn’t have anything to say about the security and legal stuff, so I hadn’t linked to it before now. That line about “the patients have to get there” is as I’ve said the single biggest point of vulnerability for this clinic and its patients. We’ve seen what Republican and other forced-birth fanatics in Texas are willing and planning to do. I believe they will push the legal envelope on this as far as they can, secure in the knowledge that even if SCOTUS eventually trims them back a bit, the Fifth Circuit will ensure that there won’t be an injunction against whatever crazy laws they pass while the matter is being litigated. I guarantee that SB8, the bounty hunter law, will be fully utilized. It’s going to be super duper ugly and expensive.

I don’t say any of this to be a bummer, but to be a realist. This is what we’re up against, and it will remain that way until we get 1) a federal law that can block at least some of this bullshit; 2) a different (which in any near-term context means “expanded”) SCOTUS that re-reverses itself; or 3) a Texas government that is able to undo all of this legislative harm. Of those three, that last one is guaranteed to not be in the cards in the near term. We can elect Beto and prevent further damage, but until we can also flip both the House and the Senate, we’re stuck with the laws we have. Maybe flipping the State Supreme Court might help as well, but that’s a minimum of two cycles at least. If we’re very lucky, we can get that federal law in 2023. Until then and otherwise, this is where we are.

SAISD vaccine mandate upheld again

Also still on hold, but the state loses again at the appellate level.

A state appellate court upheld San Antonio Independent School District’s authority Wednesday to mandate its workers get vaccinated against COVID-19, almost a year after the district instituted the requirement for all staff to help stem the spread of the virus.

The 4th Court of Appeals on Wednesday denied Texas Attorney General Ken Paxton’s request to overturn a Bexar County judge’s decision not to grant the state a temporary injunction to block the staff vaccine mandate. Judge Mary Lou Alvarez of the 45th District Court issued that ruling in October, allowing SAISD to continue enforcing the mandate.

The court also ordered that the costs of the appeal be assessed against the state.

Paxton filed a lawsuit against SAISD in September, after first suing the district over the mandate in August because the vaccine had not been approved by the federal Food and Drug Administration. The August lawsuit was dropped after the FDA approved the Pfizer COVID-19 vaccine.

The lawsuit has wound its way through the state court system over the past year. Paxton’s office appealed Alvarez’s ruling to the 4th Court of Appeals and also requested the appellate court temporarily block the mandate while it considered Paxton’s appeal. The attorney general then requested the state Supreme Court step in and halt the mandate, which it did in mid-October.

The Texas Supreme Court’s ruling forced SAISD to stop enforcing the mandate while the 4th Court of Appeals considered the state’s appeal of the temporary injunction that Alvarez denied.

[…]

Paxton’s lawsuit argued that SAISD’s vaccine mandate violated Gov. Greg Abbott’s executive order prohibiting governmental entities from implementing COVID-19 vaccine mandates, which the governor claimed he had the authority to do under the Texas Disaster Act. Attorneys for SAISD challenged that reasoning, contending the Act does not give the governor the power to suspend all state laws.

Wednesday’s ruling by the 4th Court of Appeals determined that the Texas Disaster Act does not give Abbott the authority to suspend parts of the Education Code that allow school districts to issue vaccine mandates.

“The Texas Disaster Act expressly limits the Governor’s commander-in-chief authority to state agencies, state boards, and state commissions having emergency responsibilities,” the ruling states. “The District is not a state agency, a state board, or a state commission. Rather, the Texas Disaster Act defines the District as a ‘local government entity.’”

See here for the previous update. This sounds like a solid ruling, one that SCOTx ought to uphold, though who knows what they’ll actually do. It would also be written on sand to some extent, in that if the Republicans retain full control of government next year they’ll just amend the Texas Disaster Act to make it cover school districts and/or explicitly exclude anything having to do with vaccinations. In the meantime, even though the policy remains on hold during the litigation, it’s surely the case that the mandate got some holdouts vaccinated during the period while it was in effect. That will always be a win, no matter what happens from here.

Texas sues USDA over LGBTQ protections

Here’s the story, which I’ll get to in a minute. It might be best to try to summarize this more accurately, because this is one of those technical situations where it takes a lot of qualifiers to get at what’s actually at stake. So with that in mind:

Clear enough? OK, on to the story:

Best mugshot ever

Attorney General Ken Paxton and more than 20 other attorneys general are challenging the federal Food and Nutrition Service’s new policy that recipients of food assistance funds update their nondiscrimination policies to protect LGBTQ people.

In May, the U.S. Department of Agriculture announced it was expanding its interpretation of discrimination based on sex. As a result, state agencies and programs that receive funding from the Food and Nutrition Service were ordered to “investigate allegations of discrimination based on gender identity or sexual orientation” and to update their policies to specifically prohibit discrimination based on gender identity or sexual orientation.

Paxton and his counterparts claim the guidance issued by the USDA is “unlawful” because states were not consulted and did not have an opportunity to provide feedback, in accordance with the Administrative Procedure Act. They also argue that the USDA is misinterpreting the Supreme Court case Bostock v. Clayton County, which extended sexual discrimination in the workplace to include discrimination based on gender identity or sexual orientation.

“[It] will inevitably result in regulatory chaos that threatens essential nutritional services to some of the most vulnerable citizens,” Paxton’s office said in a press release.

And as we know, no one cares more about our most vulnerable citizens than Ken Paxton. TPM adds some details.

In their suit, the Republican attorneys general argued that, in its reasoning behind the new guidance, the USDA had misapplied Bostock v. Clayton. They also argued that the government hadn’t followed procedural notice-and-comment rules for the new guidance, as outlined in a federal law known as the Administrative Procedure Act.

Or, as ACLU communications strategist Gillian Branstetter put it, “The AGs argue schools have the right to deny queer and trans kids lunch money.”

Tuesday’s suit asserted “the States do not deny benefits based on a household member’s sexual orientation or gender identity.” But it challenged the “unlawful and unnecessary new obligations and liabilities” it alleged were associated with the guidance.

The lawsuit cited existing red state laws that “at least arguably conflict” with the USDA guidance, such as rules prohibiting transgender students from participating in sports programs that align with their gender identity, rather than the gender they were assigned at birth.

The Republicans’ suit comes two weeks after 20 Republican attorneys general won a preliminary injunction in the same federal court district — the Eastern District of Tennessee — against similar guidance from the Department of Education and the Equal Employment Opportunity Commission. A federal judge found the federal directive clashed with state laws regarding gender-based laws being applicable to, for example, bathrooms and sports teams.

I don’t know enough to say what the likely effect of this might be if these homophobic AGs get their way, but we can all be sure it won’t be good. If Ken Paxton can sue to force hospitals to let women die, then a few gay kids going hungry won’t bother him.

Your phone bill is about to go up

Surprise!

Attention all Texans who use a cell phone or landline: The Watchdog has bad news.

Starting with September’s phone bill, your bill is going up.

I can’t provide a specific number for you except to say that all Texas phone users are about to contribute to a $210 million fund to pay a backlog of debt owed to rural telephone companies and phone co-ops.

Although I can’t be specific about your increase, I can show you below how to get an estimate of your particular price jump.

In my case, the increase for this surcharge — called the Texas Universal Service Fund — will boost the USF fee on my bill from $2 a month to $14.

Who to blame for this fiasco? Our old friends who previously ran the (Public) Utility Commission before they were bounced out for incompetence after the February 2021 freezeout disaster. (Remember I took away the “P” away until the UC shows greater care for the public.)

Another culprit here is Gov. Greg Abbott.

Both had a chance to fix this, but both backed out. I’ll show you why.

If you get a sense of déjà vu that you’ve heard this before, it is similar to the electricity crisis.

Just like with the electricity crisis, Abbott and his previous slate of (p)UC commissioners abandoned us by the side of the road, drove off and left us paying the bills.

Every month, Texas phone users pay toward the Universal Service Fund so that dozens of rural telephone companies can provide phone service to several million Texans who live in remote areas. The cost of wiring is too expensive.

In the past several years the (p)UC fell behind in making the payments mandated by the Texas Legislature. The rate was 3.3% of the basic service cost on your phone bill.

In June 2020, the (p)UC staff recommended that the fee increase to 6%, but commissioner Arthur D’Andrea blocked it, saying “This is not a time when we should be raising taxes on people.”

The (p)UC chair, DeAnn Walker, said to “leave the fund as it is.”

When the Texas Legislature tried to fix the backlog last year, Abbott vetoed the bill, saying “It would have imposed a new fee on millions of Texans.”

Well, I’m all for blocking fees, but in this case, by avoiding the problem, the new rate jumps from 3.3% to a whopping 24%.

“We have been baffled by this from the beginning,” says Mark Seale of the Texas Telephone Association about state leaders’ avoidance of this growing debt. “If they’d raised the rate two years ago at 6% they would have avoided this entire thing.”

Annoying! The reason this is happening now is because the Texas Telephone Association filed a lawsuit against the PUC and won in court, with the ruling upheld by the appeals court. The PUC responded with the fee hike, which goes into effect on August 1. I think the reason why Abbott acted as he did is simple enough: He got to claim the credit for blocking the more modest fee increase, with the chance that it would end there. Now that that has blown up, it’s more complicated to pin on him, since generally speaking one doesn’t associate the governor with one’s phone bills. It’s also a typical case of the followup story being of a far lower profile than the initial one. As craven as Greg Abbott is, it’s hard to see this landing on him. But at least now you know.

Abortion penalties will increase on August 25

Sorry to be the bearer of bad news.

The U.S. Supreme Court has issued its official judgment in Dobbs v. Jackson Women’s Health Organization, clearing the way for Texas’ “trigger law” banning almost all abortions to go into effect Aug. 25.

The law will increase the criminal and civil penalties associated with abortion, but the procedure is already virtually outlawed in Texas under an old statute that was in effect before the high court decided Roe v. Wade in 1973.

The state’s two dozen abortion clinics stopped providing abortions almost immediately after the court overturned Roe v. Wade in late June, fearing criminal prosecution under those pre-Roe statutes, which make it a crime punishable by up to five years in prison to provide or “furnish the means” for an abortion.

Those statutes are separate from the trigger law, which the Legislature passed in 2021. That law, which is triggered by the overturning of Roe v. Wade, increases the penalties for performing an abortion up to life in prison. The trigger law also says that the attorney general “shall” bring a lawsuit to seek a civil penalty of no less than $100,000 per abortion performed.

Both the pre-Roe statute and the trigger law have only narrow exceptions to save the life of the pregnant patient.

While other states’ trigger laws went into effect immediately, Texas’ was written to go into effect 30 days after the Supreme Court issued its official judgment, after which no rehearings or appeals can be filed. That process usually takes about a month.

There’s been a lot of confusion over just when and how the law was going to change in Texas. I suspect that most people quite reasonably expected that abortion was essentially banned as soon as the Dobbs decision was made available, and for practical purposes that’s correct. The difference at this point is that all of the darkly muttered threats about the vengeance that is to be unleashed will turn into action on that date. Whatever constraints there may still be now will be gone. As bad as it is now, it’s going to get worse. I’m sorry to have to say that.

As for the remaining clinics themselves, they’re thinking about what comes next for them as well.

A month after the U.S. Supreme Court overturned Roe v. Wade, Texas’ two dozen abortion clinics are slowly coming to terms with a future where their work is virtually outlawed.

Some clinics have already announced that they are shutting down operations and moving to New Mexico and other states that are expected to protect abortion access. Others, including Planned Parenthood, say they will stay and continue to provide other sexual and reproductive health services.

But keeping the doors open will likely come at a high cost for these clinics — financially, politically and psychologically — as they absorb more patients with fewer options.

“It’s really hard to find words in the English language that honor what the experience has been like,” said Dr. Bhavik Kumar, medical director of primary and trans care at Planned Parenthood Gulf Coast in Houston. “It’s just devastation.”

Planned Parenthood will still be around, doing less than it has been able to do in the past. Whole Women’s Health is moving to New Mexico. Some others will stay, some others will leave. The devastation will increase. As I said before, that’s a feature and not a bug.

There’s a lot of anti-LGBTQ litigation out there

Sorry to be the bearer of bad news, but this is where we are.

In the wake of the toppling of Roe v. Wade and with Justice Clarence Thomas urging the U.S. Supreme Court to revisit rulings on gay sex and marriage, Texas is the stage for several lawsuits dealing with LGBT rights.

Right now, a half dozen cases on everything from insurance coverage for HIV prevention to employment discrimination and same-sex marriage are wending their way through state and federal courts here. Their outcomes could radically alter rights for lesbian, gay, bisexual and transgender people in Texas and across the country.

The lawsuits all have one thing in common: former Texas solicitor general Jonathan Mitchell.

Best known as the man behind the state law that allows Texans to file civil lawsuits against people who help pregnant people get abortions, Mitchell opened up a law firm in Austin four years ago with the goal of systematically dismantling decades of court rulings he believes depart from the U.S. Constitution.

The Dallas Morning News is tracking six of his cases that originated in Texas and deal with LGBT rights. Here’s a summary of each case.

Gay Marriage

Dianne Hensley vs. State Commission on Judicial Conduct (Third Court of Appeals)
Brian Keith Umphress vs. David Hall, et al. (Northern District of Texas)

Summary: Both of these cases were brought by Texas officials with the authority to perform weddings but who do not want to offer marriages to same-sex couples because they say it violates their religious beliefs.

Insurance Mandates

John Kelley, et al., vs. Xavier Becerra (Northern District of Texas)

Summary: Plaintiffs in this federal lawsuit argue that insurers or self-insured employers should not have to cover certain kinds of preventive medical care because that would force them “to underwrite coverage that violates their religious beliefs.” The suit also targets the Affordable Care Act’s mechanisms for deciding which care private insurers must cover, arguing it gives the federal agencies and other unelected bodies undue control over decisions that should remain with Congress.

Employment Discrimination

Braidwood Management v. EEOC (Fifth Circuit Court of Appeals)

Summary: The case in federal court, filed on behalf of Hotze’s Braidwood Management and the Keller-based Bear Creek Bible Church, argues that religious employers should be able to hire and fire workers based on their sexuality and gender identity.

LGBT Library Books

Leila Green Little, et al. vs. Llano County (Western District of Texas)

Summary: The federal lawsuit, filed by citizens of Llano County, argues their First and Fourteenth Amendment rights were violated when local leaders pulled certain titles from the library’s child and teen sections that they deemed “pornographic.”

‘Save Chick-fil-A’

Patrick Von Dohlen, et al. vs. city of San Antonio (438th District Court in Bexar County)

Summary: This state lawsuit, filed by a handful of would-be Chick-fil-A customers, argues San Antonio violated a state’s so-called Save Chick-fil-A law by booting the fast food chain Chick-fil-A from the local airport based on its charitable donations to Christian groups that oppose LGBT rights. The law, which Gov. Greg Abbott signed in 2019, prohibits governmental entities from taking “adverse actions” against a business or person for their contributions to or memberships in religious organizations, and allows citizens to sue over apparent violations.

Some of these I’ve written about before, but you get the idea on them all. The plan of course is to get one or more of these cases to SCOTUS to have a shot at overturning Windsor and/or Obergefell. I assume that the recent bill passed by the House to offer federal protections to same sex marriage would have some effect, but it’s hard to say how much and I’d rather not find out. The underlying philosophy is that some people, namely Jonathan Mitchell and his fellow travelers, have more rights and legal protections than anyone else. I’m sure you can see why they’re aiming to take this path to achieve those ends. Anyway, I don’t know how this ends but I do know we can’t be sitting idly waiting for it. It would be lovely if we had a Senate that was up to doing something not only about the overall erosion of civil rights but also the radical nature of the federal judiciary these days. Maybe next year, if we’re lucky and can make it till then.

Paxton so petty

This guy, man. What a stain.

Best mugshot ever

Attorney General Ken Paxton is escalating his feud with the State Bar of Texas by banning his office’s lawyers from speaking at any events organized by the bar.

Paxton’s office also will not pay for any attorneys to attend bar-sponsored events, according to an internal email obtained by The Texas Tribune.

The state bar is suing Paxton over his 2020 lawsuit challenging the presidential election results in four battleground states. Paxton has denounced the lawsuit, which alleges professional misconduct, as political harassment.

The internal email — sent Monday by Shawn Cowles, Paxton’s deputy attorney general for civil litigation — references the lawsuit, calling it “just the latest instance in the Bar’s ongoing evolution into a partisan advocacy group.”

“Let’s be clear: these are politically motivated attacks that violate separation-of-powers principles and offend our profession’s values of civil disagreement and diversity of thought,” Cowles wrote.

The new office policies are effectively immediately.

[…]

The state bar is an agency of the judiciary that licenses lawyers to practice in Texas and hosts regular training and networking events around the state.

Let’s put aside any question for a minute about whether or not Paxton has a legitimate gripe with the State Bar’s actions against him. (He doesn’t, but for the sake of argument let’s pretend he does.) He’s taking out his anger on his employees. How would you feel if your boss forbade you from doing any professional development because he’s in trouble with the cops? You have to be an exceptionally shitty person to act like this.

Austin takes its shot at protecting abortion access

I wish them great success. I don’t think the fanatics in the Legislature will let them achieve it, but we’ll see.

Austin City Council unanimously (in the absence of lone Republican Mackenzie Kelly) approved four items on Thursday, July 21 that aim to provide people within the city some legal protection should they seek or perform an abortion.

The special meeting was called following the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Org. last month, which overturned its prior Roe v. Wade and Casey v. Planned Parenthood decisions guaranteeing a constitutional right to terminate a pregnancy. In Texas, 2021’s Senate Bill 8 already made those providing or “aiding and abetting” abortion care after about six weeks (before many people know of their pregnancies) liable to civil lawsuits that can be filed by anybody.

[…]

The item most likely to have immediate impact is known as the GRACE Act (Guarding the Right to Abortion Care for Everyone), a measure introduced by Council Member Chito Vela which directs the Austin Police Department to “deprioritize” investigations into criminal offenses related to abortion.

Effectively, that means Council is asking APD (technically, they’re asking City Manager Spencer Cronk to ask APD Chief Joseph Chacon) not to devote any financial resources or labor to investigating cases related to abortions. Exceptions in the measure include instances where an abortion is being coerced, or when a provider is accused of negligence.

For now, APD has not indicated how it will respond to the GRACE Act. Chacon will have to work with his executive team and the city’s Law Department on implementation, but have not provided insight into what that might look like or how long it might take. In response to questions from the Chronicle, an APD spokesperson said, “We are working through the resolution and we’ll present next time when we come back to Council.”

The unanimous Council (Kelly missing the meeting due to a previously scheduled surgery) also approved an ordinance initiated by CM Vanessa Fuentes to protect people who’ve received “reproductive health actions” from discrimination in housing, employment, or access to public services. The other two resolutions adopted at the meeting were both from Mayor Steve Adler and related to “long-term birth control,” including vasectomy. One directs Cronk to explore a public education campaign about birth control options and to ensure that city employees’ health insurance covers “low-cost birth control.” (From an insurer’s perspective, vasectomy and tubal ligation are lower-cost than ongoing hormonal or barrier birth control.) Cronk is expected to report back to Council no later than Sept. 30.

Adler’s second resolution asks staff to recommend budget provisions that would enable city employees to have “reasonable access to reproductive health care services that are no longer lawfully available in Texas.” This resolution does not include a report-back date, but presumably staff would need to offer recommendations soon if they are to be adopted along with the city’s fiscal year 2023 budget on Aug. 17.

Rockie Gonzalez, deputy director of the Austin Justice Coalition and founder of the Frontera Fund, which has organized around abortion access in the Rio Grande Valley since 2014, told the Chronicle that she was encouraged by the items Council passed. “The most important thing for advocates right now is to get decriminalization measures and protections in place for folks seeking abortions, those providing abortions and those helping other folks to get the abortion care that they need.”

The GRACE Act does not protect organizations, like the Lilith Fund in Austin, that had been helping individuals coordinate and pay for access to abortions. Depending on how APD implements the direction, however, it could protect someone who decides to help a friend or family member access an abortion. Still, Gonzalez said, the measures will help abortion care advocates in Austin because they will not have to focus as much on the criminalization of abortion in Texas.

“Locally, impact on abortion advocates is going to be a little bit of wiggle room and protection to do the advocacy work that we need to continue to do,” Gonzalez told us. “In Austin, at least, we won’t need to focus as much on creating bail funds and securing legal support for folks who might be criminalized” for seeking an abortion. She also hopes advocates can work together to pass similar measures in other cities throughout Texas.

See here and here for some background. If the Austin PD is amenable to this, then there ought to be some decriminalization benefit, at least in the short term. We know the forced-birth caucus in the Legislature will find ways to shut this down, but it’s still something for now.

The bigger problem in the meantime is the threat of SB8, the vigilante bounty hunter law, which hasn’t been used yet but is being prepped for weaponization as we speak. There’s not only nothing that the city of Austin can do to prevent those attacks, the city may find itself on the wrong side of SB8-enabled lawsuits as a result of these actions. Again, I hate to sound like a doomsayer, but these people aren’t subtle and they won’t hold back. The only way to really fight back is at the state and federal level, where the levers available to take action are much more powerful. I wish this kind of ground-level resistance could be successful. My fear is that it will be steamrolled. I hope I’m wrong. The Texas Signal has more.

The religious freedom argument for abortion

Hope this works. For obvious reasons, I’m not terribly optimistic. But it’s worth a shot.

The rabbi whose progressive synagogue sued the state of Florida over a bill that would ban abortions after 15 weeks, arguing that it infringes on religious liberty, has created an initiative to help other faith organizations — and atheists — push back against anti-abortion legislation across the U.S.

Rabbi Barry Silver’s initiative, Helping Emancipate Abortion Rights Today (HEART), seeks to “restore abortion rights in a post-Roe v. Wade world” and defy the “theocratic tyranny” of laws that clash with the Jewish belief that abortion is a basic right and life begins at birth, not conception, he said in a phone interview Tuesday.

The initiative is designed to be able to allow any person of any belief system to challenge the anti-abortion laws on religious grounds,” Silver said. “It’s the height of chutzpah for people to tell the Jewish people what the Bible means and lecture the Jewish people on the sanctity of life.”

Silver’s synagogue, Congregation L’Dor Va-Dor, sued this month challenging Florida’s anti-abortion law, which is scheduled to take effect Friday. In the Jewish legal tradition, the suit says, “abortion is required if necessary to protect the health, mental or physical well-being of the woman.”

Silver said HEART will allow religious and atheist leaders in other states to essentially copy the text of his lawsuit, editing it as needed to fit the specifics of their communities and state laws. HEART will also be on hand to advise anyone who is interested in fighting anti-abortion bills on religious freedom grounds.

[…]

In the eyes of many Jewish leaders, anti-abortion laws are particularly distressing because they contradict Jewish halakha — the laws drawn from the Torah, the Mishnah and the Talmud, the most sacred and authoritative texts in the tradition — according to Rabbi Ed Feinstein of Valley Beth Shalom synagogue in Los Angeles.

This story was from a couple of weeks ago, and I haven’t seen any further news for it. Court cases take their time. It’s easy to find all kinds of massive logic holes in the Dobbs decision and I certainly appreciate the efforts to expose and try to exploit them, but let’s keep our expectations in check. There is likely rhetorical value in this exercise, and hopefully some political and electoral value, but we are not going to get this lawless and arbitrary Supreme Court to admit to any error. They will have no trouble deciding the case in the manner that suits them, in the same way I’d expect them to bat aside any SB8-like legislation that targets assault weapon ownership or voter suppression. It’s going to take a bigger fulcrum than that to make the changes we need.

A piece of the voter suppression law is blocked

Buckle up, this will take a bit of explanation.

Parts of a 2021 Texas voting law that cracked down on assistance for voters with limited English skills and voters with disabilities can no longer be enforced.

A federal judge in Texas issued a ruling last month striking down provisions in Texas’ new law, known as Senate Bill 1, that set limits on how people can help voters cast their ballots. State officials had until last week to appeal the ruling, but they declined. The office of the Texas attorney general has not responded to requests for comment.

Lisa Snead, a litigation attorney at Disability Rights Texas, said the court decision is a big win for voters with disabilities in the state.

“The provision of SB 1 limiting assistance … really limited what voters with disabilities could receive,” she said. “And it had a grave impact on voters who tried to vote in … elections in March and May.”

[…]

Among its provisions, SB 1 restricted assistance to only reading the ballot for a voter, marking the ballot for a voter, directing the voter to read the ballot and directing the voter to mark the ballot.

Groups including the Asian American Legal Defense and Education Fund went to federal court and argued that the voter assistance parts of SB 1 directly violate a 2018 injunction that ruled that similar limitations in Texas’ election code at the time violated the federal Voting Rights Act. The court agreed and also directed the state to change its training for voting assistants.

In addition, the court barred Texas from including those restrictions in the language of an oath an assistor must swear to when helping voters. SB 1 requires people aiding voters to fill out paperwork disclosing their relationship with the voter and whether they are compensated. It also requires they recite an oath under the penalty of perjury stating they did not “pressure or coerce” the voter into choosing them for assistance.

Debbie Chen with Organization of Chinese Americans of Greater Houston, which was the plaintiff in the 2018 case, said in a statement earlier this month that SB 1 made assistors afraid to answer voters’ questions in the state’s primary elections.

“Asian American voters with limited English often need to ask questions to understand the ballot and the voting process,” Chen said. “This is especially true for people who provide them with assistance and must translate the English ballot and the whole process on the spot.”

This lawsuit was filed in Travis County in September; there was another lawsuit filed at the same time in Bexar County, but that is not a part of this case. I did not see any news stories about the injunction that had been granted, so this is the first update that I’m aware of. The story refers to a 2018 injunction granted from a 2016 lawsuit over similar issues – see here for more on the lawsuit. I had noted the appeal of that injunction, but it seems I lost track of the litigation after that. Sometimes these things don’t make the news, and sometimes they only make the news in places I don’t see.

Anyway. The allegation here is that the latest voter suppression bill contained language that directly violated the terms of the 2018 injunction – in some cases, SB1 more or less directly quoted things that the court had said were enjoined. Some great work by the staff there, fellas. I’m a little surprised the state didn’t bother appealing this to the Fifth Circuit, even though that 2018 injunction had been narrowly tailored to comply with their order remanding the case back so it could be more narrowly written. Maybe there are some things even the Fifth Circuit won’t do. In any event, while there are still many issues with SB1, at least this won’t be among them. Kudos to all for getting this done. The Chron has more.

The State Bar’s response to Paxton

As you know, the State Bar of Texas filed a lawsuit against Ken Paxton in a Collin County district court in order to proceed with the complaint filed against Paxton for his attempt to overthrow the 2020 election by filing a massively dishonest and bad-faith lawsuit against four states won by President Biden. Paxton filed his response to that lawsuit a month ago, and now the State Bar has responded to his response.

Best mugshot ever

Weeks before the May 24 primary runoff election for attorney general, Paxton publicly tweeted the State Bar was following a “political narrative” by filing its action “just a few weeks before” his election. Paxton made the same argument in his court answer to the petition.

The commission filed its response last week, emphasizing the petition was filed the day after the election and the only significance to that filing date is that it occurred on the same day the presiding judge of the First Administrative Judicial Region signed the Order of Assignment; the commission couldn’t have filed sooner.

Moreover, the complaints were presented to an investigatory panel Jan. 5. After the panel found “credible evidence” to support a finding that Paxton violated the code of ethics, “the commission attempted to negotiate a resolution with (Paxton),” the response states.

It was Paxton that elected to have the disciplinary action heard in Collin County, and it was Paxton that “conjured up the specter of a political narrative,” the commission stated, to politicize an otherwise straightforward disciplinary proceeding.

In Paxton’s answer, he cited several defenses, including a lack of jurisdiction, a violation of separation of powers, and sovereign immunity.

Paxton asserts in his plea that he is unique, and unlike every other licensed attorney holding the position of state attorney general in the United States, is altogether exempt from having to comply with his state’s rules of professional conduct, even when acting directly as counsel of record before a court, the commission response states.

[…]

Paxton argued that as part of the executive branch the courts had no jurisdiction over him. The commission said this premise was tested and failed in two other states, Minnesota and Connecticut. Referring to In Re Lord, the Minnesota Supreme Court held, “the governor has no power to clothe the attorney general with immunity for disciplinary powers of the court when the attorney general appears in court as an attorney,” and that such a finding would “reduce the court to a tool of the executive.”

The commission said that, despite Paxton’s contentions that the disciplinary action was brought for political or retaliatory purposes, that action is not about his decision as the attorney general to file the case.

“Rather, the commission contends that the pleadings respondent prepared and filed contained numerous statements that were false, dishonest, and deceitful,” in violation of the Texas Disciplinary Rules of Professional Conduct, the response states.

Referring to Paxton’s separation of powers argument, the commission told the court the State Bar Act gives the Texas Supreme Court administrative control over regulations governing the practice of law, and the high court has inherent regulatory powers as well within the state Constitution.

On sovereign immunity, the commission said Paxton isn’t being sued in his official capacity, but personally in his capacity as a licensed attorney.

See here and here for the previous updates. A major component of the State Bar’s response has been to take on Paxton’s claims that the whole process is political, because that’s the main tool he has in his bag whenever someone tries to hold him accountable for anything. Indeed, the headline of this story notes how the State Bar turned Paxton’s complaints about the process against him, because Paxton can’t help but be a lying liar who lies a lot. I can’t say how effective any of this will be, but you do love to see it. I don’t know when the next update is, but as always I’ll be watching. The Statesman has more.

The Republicans just want to punish everyone for every abortion ever

They want to put you in jail.

More than 70 Republican state lawmakers have signed onto a friend-of-the-court brief siding with Attorney General Ken Paxton in arguing that a nearly century-old law imposing criminal penalties against those who help a patient obtain an abortion is enforceable now that the U.S. Supreme Court overturned Roe v. Wade.

A decision on whether that pre-Roe measure is enforceable is expected in the near future from the Texas Supreme Court, which has temporarily allowed the statute to be enforced civilly but not criminally.

The lawmakers, in a filing penned by state Rep. Briscoe Cain of Deer Park, argue that the Texas Legislature has “repeatedly and emphatically affirmed” the existence and continued enforceability of the old laws in recent legislation.

They note both the state’s anti-abortion trigger law, which will go into effect 30 days after the decision overturning Roe is certified, and its previous six-week abortion ban included language to that effect.

Lawyers for the plaintiffs — seven abortion clinic groups throughout Texas — point to legislative and judicial treatment of the old laws that they say proves they are no longer considered to be in effect, including a 2004 Fifth Circuit opinion that said the old laws were “repealed by implication.” The old statutes were also removed from copies of the state’s criminal and civil codes online.

In court records filed Monday, the Republican lawmakers argue that a state court can now make its own decision in the case, no matter how federal courts have ruled in the past.

They add that the Texas and U.S. Supreme Courts both “disfavor repeals by implication” and defers to it only when statutes can’t be “harmonized.” The lawmakers argue the laws could work in tandem.

See here for the background. This is nearly a legislative majority in itself. Imagine what they’ll do next spring if there are no checks on their power.

They also want to sue everyone in sight.

Texas anti-abortion conservatives are intensifying their efforts to shut down access for residents seeking abortions, with a near-daily drumbeat of threats and court filings aimed at donors, employers and others trying to help those patients.

They are part of a broad campaign by the anti-abortion rights movement, in the days since the U.S. Supreme Court reversed the constitutional right to abortion last month, to dry up avenues of assistance for Texans who have no access to abortion under several state laws and punish providers who have tried to legally continue offering services in a constantly changing legal landscape.

In their crosshairs are not just providers, but also nonprofit funding groups and the donors who support them; people who volunteer time or give money to abortion providers; employers who support pregnant workers in getting abortions; and the abortion clinics and employees themselves.

“Any person who was complicit in these illegal abortions—including [provider] Whole Woman’s Health employees, volunteers, and donors, and anyone who aided or abetted these illegal abortions in any manner, apart from the formerly pregnant woman upon whom the illegal abortion was performed — is equally liable under the Texas Heartbeat Act and equally guilty of murder,” reads a recent court filing by attorney Jonathan Mitchell, the legal architect of many of those efforts, including Senate Bill 8, a Texas law that bans abortions after fetal cardiac activity is detected and allows citizens to sue suspected violators.

[…]

When the trigger law takes effect, the state will have at least three separate laws on the books that collectively make abortion from the moment of conception illegal in Texas, in almost all cases, and hold violators liable either civilly or criminally.

But abortion opponents are ready to ask for more, threatening new laws that would extend Texas abortion laws beyond state lines, widen prosecutors’ powers to pursue abortion cases and further criminalize anyone who tries to help Texans get abortions.

“I think they’re emboldened, and I also think that frankly, the base that they’ve become dependent on is going to demand that they just keep going,” said Dallas attorney Elizabeth Myers, who represents Lilith Fund, an abortion-funding group and advocacy organization that is among those being targeted in civil court filings and by Texas legislators. “They will go until the court says no.”

On the civil side, courts in conservative Denton and Jack counties are likely to start hearing arguments in the coming weeks over whether to let Mitchell interview, under oath, two major funding groups about their involvement in potentially illegal procedures under both the 1925 law and SB 8. A similar request was filed by Mitchell in Howard County last week targeting abortion providers.

If that effort is successful, the information and documents that the abortion providers and supporters may be forced to turn over could help anti-abortion rights attorneys build lawsuits against them.

And although civil depositions can’t be legally used in criminal cases, they are public records and could be easily obtained by local prosecutors seeking an evidentiary road map for their own criminal cases.

See here for the background, and note that they got started several months before the Dobbs ruling. If you think they will continue to exclude the women who get abortions from their campaign of vengeance, you are giving way too much credit to a group of people who think that ten-year-old girls should be forced to carry a rapist’s baby and that hospitals should be held criminally liable for performing live-saving care. I would argue this isn’t their highest priority going forward, it’s their only priority. And sooner or later, they’ll come after all of us. What are we going to do about that?

This is why you don’t put a crook in charge of enforcing the law

Y’all, Ken Paxton.

Best mugshot ever

For the past two and a half years, Texas Attorney General Ken Paxton has declined to sue hundreds of candidates and elected officials who altogether owe more than $700,000 to the state in unpaid fines for campaign reporting violations.

Campaign finance laws are meant to give the public insight into politicians’ possible influences and allow voters make informed decisions and hold officeholders accountable.

The Texas Ethics Commission levies the fines against candidates and elected officials who, for example, fail to file reports on their campaign fundraising and spending in a timely manner. Other violations include filing inaccurate or incomplete reports, misusing campaign or public funds for personal benefit, or producing and distributing misleading political advertising.

The state has few restrictions on political spending by design, with the laws supported by Republican lawmakers who generally oppose government regulation. It’s one of only 11 states that put no limits on individual contributions to campaigns.

And the Texas Ethics Commission, the regulatory agency in charge of enforcing those laws, doesn’t have many tools at its disposal to go after scofflaws aside from letter notifications. Its last line of defense against delinquent filers is to refer their cases to the attorney general’s office.

“We have very few rules when it comes to campaign finance in Texas, and the few that we do have are not enforced, clearly,” said Anthony Gutierrez, executive director of Common Cause Texas, a government watchdog group. “What’s the point of even having the rules?”

Refusing to collect the fines is the latest exhibit of the antagonistic relationship between Paxton and the Texas Ethics Commission. In recent years, Paxton’s office has questioned the constitutionality of the agency’s work, and though his office is charged with defending state agencies in court, he has declined to defend it against a still-ongoing suit filed by political allies of his who seek to gut the agency. The unusual move has cost the state over $1 million by forcing it to seek outside counsel.

[…]

Chase Untermeyer, former chair of the Texas Ethics Commission and former Republican state representative for a Houston district, said he was surprised to hear that no suits had been filed. The attorney general’s office always had a threshold dollar amount for filing suits, he said, but it never quit filing them altogether before Paxton. Untermeyer served on the commission from 2010 to 2017 and was chair from 2016 to 2017.

“In theory, I think the attorney general’s office should represent the ethics commission and carry out both the spirit and the letter of the law,” Untermeyer said, “but I recognize they have a limited staff and for very practical and perhaps financial reasons, they may limit or put a floor on the amount of times they consider enforcement.”

Many times, he said, the only option left to the agency is the “naming and shaming” delinquent filers on a publicly available list on its website. As of last month, the list showed nearly 500 people owed fines that summed more than $2 million.

The halt of collections cases comes after the office filed 36 suits in 2019 and 15 in 2018, agency records show.

Democrat Rochelle Garza, Paxton’s opponent as he seeks re-election, said in a statement to Hearst Newspapers that this is “just another example of Ken Paxton’s impotent use of his office.”

“Paxton cares more about his extremist agenda than doing his job and bringing accountability to our electoral system,” she said. “I will bring back integrity and accountability to our government. There will be no more free passes for bad actors under my administration.”

The irony, as the story notes, is that the two biggest fine-owers right now are both Democrats – Rep. Ron Reynolds, and a Dallas County judge. Among many other things, this particular failure by Paxton – which, again, is a choice and not an error – would give Rochelle Garza a prime opportunity right out of the box if she wins to show how a non-partisan law-abiding Attorney General would operate. Imagine that for a minute. Such a simple lesson, not putting a crook in charge of enforcing the law.

Big Law versus the Forced Birth Caucus

Place your bets.

The Texas Freedom Caucus may have kicked a hornet’s nest when it threatened Sidley Austin partners with civil and criminal penalties and disbarment in a letter last week, according to firm leaders in Texas and managing partners at firms with Texas offices.

Firm chair Yvette Ostolaza received the letter July 7 after Sidley signaled its intent to reimburse employees who sought abortions in other states. The letter, signed by Texas Rep. Mayes Middleton, a Republican, said litigation was already underway to determine whether Sidley had already participated in illegal abortions, including out-of-state drug-induced abortions in which employees took the second of two pills after returning to Texas.

The managing partners, who requested anonymity because they had not yet received similar demand letters from the Republican legislative caucus, said the threats were more likely to strengthen the conviction of lawyers and law firms that have already chosen to support the reproductive rights of their employees.

“I don’t know how smart it is to go after a bunch of lawyers,” said the managing partner of an Am Law 100 firm with offices in Texas. “We can all spend endless time and energy playing it through, and it might not play out as well for them as it would if they went after a less well-funded organization or people less involved with making legal decisions than law firms.”

Another Am Law 100 managing partner said they found the letter incredibly offensive, but didn’t believe it would scare law firms that already knew where they stood. “From my experience, it would only embolden them. And it’s not unlike getting threatening letters when you support civil rights—look at Jim Crow laws in the South,” the partner said. “It’s the same playbook, by my personal view, of a racist segment of society.”

[…]

While no one seems to worry about offending the Freedom Caucus, managing partners said they know that choosing to support abortion rights as a firm will alienate some lawyers and staff at all levels. Absent the cultural artifact of water cooler chatter, law firms in the hybrid work setting are being defined by the core values they display on polarizing issues, one managing partner said.

Kent Zimmermann, a consultant for Zeughauser Group, said law firms are in a tough spot on highly charged political issues that have seemingly become more salient in the workplace over the years. He said like other businesses, firms have people and clients with opinions across the spectrum, and that it’s “tough to play all sides of some of these bedrock issues.”

But he also noted opinion polls still show Americans are generally in favor of abortion access, and that firms and their leaders are compelled by multiple trends pushing them toward favoring access as well—they’re more competitive than ever with each other, and the talent they’re trying to draw is younger, more diverse and more consistently wants to work at an organization with values they agree with.

He added these dynamics could change the map of legal industry investment.

“I don’t think it’s a today, turn-on-a-dime type of change for most firms,” Zimmermann said. “But I think over time, if there’s a lot more human rights available in some places versus others, that will change where the talent is and where the industry goes.”

An Am Law 100 firm leader with several Texas offices said he’d grant employees’ wishes to leave Texas if the Caucus is able to pass its proposed legislation, which includes felony criminal penalties for employees who assist in abortions regardless of where they take place. The Caucus also stated its ambition to enact civil penalties that mirror the state’s Heartbeat Act, granting Texans the right to sue any person who provides payment or reimbursement for another Texan’s abortion, no matter where it occurred.

“Let’s take it two ways: Either everybody does it and we win and we’re allowed to do it, or we lose and they uphold it,” the managing partner said. “It would certainly put a damper on doing business in Texas. I’d probably say that whoever wants to move out of there, that’s great. I wouldn’t look at Texas as a growth area for us after that.”

See here for some background. I’ll be delighted to see these firms go into “pissed off lawyer” mode against whatever crap the fanatics throw at them, but as I said before they’re at a disadvantage in that their foes can change the rules on them. I don’t know how to handicap that fight, especially if nothing much changes in state government. I can certainly see the possibility of many firms taking Texas off of their “growth area” lists, but that’s a long term trend, and it will likely hurt the effort to make Texas a less toxic place politically.

Which brings up the point that what I don’t see in this story is any suggestion of engaging in this fight on the politics field and not just the legal field. That’s messy and carries a lot of risk (not that the legal fight wouldn’t be either of those things as well), but in the end it’s a surer path to getting some stability. It’s just that it may take a long time for that to happen, and in the short term you’d need to fight the legal battles anyway. All I’m saying is that if joining the political fight isn’t on the menu of options, these firms are limiting themselves. We need all the help we can get, y’all.

Texans settle all the lawsuits from Watson accusers

Very efficient of them.

The Texans have settled claims with all 30 women who accused former quarterback Deshaun Watson of sexual assault during massage appointments, according to the plaintiff’s attorney and the football team.

The settlement comes weeks after a civil lawsuit was filed on June 27 in Harris County alleging the team was warned about Watson’s inappropriate behavior during massage therapy sessions several months before the franchise’s responded publicly.

“Today all of the women who have made, or intended to make claims against the Houston Texans organization have resolved their claims,” plaintiffs’ attorney Tony Buzbee said in a news release, adding the terms of the settlements are confidential.

“I will have no further comment on the allegations or the Texans’ alleged role, other than to say that there is a marked contrast in the way in which the Texans addressed these allegations and the way in which Watson’s team has done so.”

[…]

The team’s ownership group — Janice, Hannah and Cal McNair — issued a statement Friday stating they were “shocked” when allegations first arose.

“Although our organization did not have any knowledge of Deshaun Watson’s alleged misconduct, we have intentionally chosen to resolve this matter amicably,” the statement said. “This is not an admission of any wrongdoing but instead a clear stand against any form of sexual assault and misconduct.

“We hope that today’s resolution will provide some form of closure to the parties involved, our fans and the Houston community at large. As an organization, we will now turn our focus to the future and doing what we can to ensure respect for all.”

The four remaining cases against Watson, Buzbee stated, will continue and, he hopes, tried in the spring.

See here for the background. I don’t know that I buy the team’s expression of shock over Watson’s alleged behavior, but that’s a moot point now. The team reached a settlement with all of the plaintiffs, which is indeed a thing Deshaun Watson could do; he’s most of the way there, but not all the way. We’ll see if anything changes before those remaining suits get to court. Sean Pendergast has more.

Losing Clear Creek ISD candidate sues to overturn her loss

This is probably going to amount to nothing, but we still have to get through it.

A conservative candidate who ran for a seat on the Clear Creek ISD school board to fight “indoctrination” in May, has filed a lawsuit contesting her election loss, claiming problems with mail-in ballots.

Misty Dawson’s petition, filed June 30 in Galveston County District Court against Jessica Cejka, who narrowly won the District 1 seat by 43 votes, claims there were “at least 29” illegal votes counted in the race and asks for the results to be ruled void.

The basis for the petition, filed under Title 14 of the Texas Election Code, which allows any candidate of any election to contest results, is that discrepancies in mail-in ballots may have changed the outcome of the tight race. Though Dawson had a lead in early voting, Cejka won the election after mail-in ballots were counted.

“My hope is for any and all errors to be brought to light. For our district to do better in future elections. For every candidate to be given a fair (and) honest election where every eligible vote counts,” Dawson wrote in a message sent via social media Tuesday.

Cejka and Clear Creek ISD officials did not respond to requests for comment Tuesday.

In a response to the lawsuit filed in the case, Cejka said she rejects every claim made by Dawson.

The official results took 10 days to tally due to a large number of absentee votes. Once the results were official, Dawson said she would contest them.

In May, the district said it received 2,426 mail-in ballots. Of those, 380 were rejected, according to the district, for a number of reasons, including carrier envelopes not being signed, signatures on applications that could not immediately be verified to match the signatures on ballots and statements of residence not being included.

Among the discrepancies alleged in the lawsuit, Dawson said the District 1 position appeared on at least 19 early voting ballots for mail-in voters who did not live within the district boundaries.

John Coby, who lives in the area and follows the likes of Misty Dawson a lot more closely than I do, was first to report this. We all know why some mail ballots were rejected in May, so good luck with that. As for the rest, it’s one thing to make allegations, it’s another to prove them. According to the story, there will be a status conference for the lawsuit on September 29. I’ll keep an eye on this.

Who gets to judge Volkswagen?

Fascinating little legal cul-de-sac here.

German car manufacturers Volkswagen and Audi — facing a lawsuit from Texas that could cost the companies millions stemming from the emissions cheating scheme uncovered in 2015 — argue that Gov. Greg Abbott could unfairly tilt the scales in the state’s favor by appointing two temporary justices to help decide the case.

Texas Supreme Court Chief Justice Nathan Hecht on June 24 asked Abbott to temporarily commission two justices to the state’s high court in order to decide a case related to an emissions-cheating lawsuit against Volkswagen and Audi. Volkswagen in 2015 admitted to deceiving regulators by designing software that circumvented U.S. emissions tests.

With tens of thousands of vehicles impacted in Texas, several millions of dollars could be at stake in the Texas case, according to the state’s civil penalties code. The issue before the state’s high court centers on whether Texas has jurisdiction over the foreign parent companies, Germany-based Volkswagen and Audi.

Justices Jimmy Blacklock and Evan Young recused themselves from the case, Hecht wrote in the letter, leaving the court with seven remaining members to rule on the case. The Texas constitution requires at least five justices to agree, one way or the other, in order to issue a supreme court decision, suggesting the remaining justices were split.

But because the state is a party in Attorney General Ken Paxton’s cases against the companies, Volkswagen and Audi’s lawyers have argued that allowing the Texas governor to appoint justices to a case for which the state stands to win a substantial amount of money would give “the impression that the State has had undue influence.”

“Although the Governor and the Attorney General are different officers, they both represent the same entity: the state of Texas,” wrote Jeffrey Wall, an attorney for Volkswagen in a letter to the court that was also sent to Abbott.

Hecht declined to comment on the letter, but a spokesperson for the Supreme Court of Texas said that there have been at least 13 other instances since 1995 in which the governor was asked to appoint temporary justices.

But neither the Supreme Court of Texas nor attorneys for the companies could identify another case in Texas history when the governor has been asked to commission temporary justices to a case for which the state is a party.

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

Volkswagen and Audi’s lawyers say appointing the justices at this point would give the appearance of bias to the court.

“Attorney General Paxton brought these actions on behalf of the state in an effort to recover massive penalties from respondents,” wrote Wall. “Simply put the state may not pick two judges who will help to decide whether it wins or loses before this court.”

If the governor doesn’t commission two more justices, the cases could return to the Texas Court of Appeals, where Volkswagen and Audi had successfully argued that Texas did not have jurisdiction over the foreign companies. The court had found that Volkswagen and Audi’s recall-tampering activities were not “purposefully directed” at Texas, but directed at the U.S. as a whole.

See here for my previous blogging on this. The last entry I have is from 2018, in which settlement money from a different lawsuit was being distributed. There will only be money at stake here if SCOTx disagrees with the appeals court, and I can see why VW and Audi might be skeptical about letting Greg Abbott pick the two replacement justices. One suggestion for how to resolve this is for both sides to agree on a couple of names. I’m thinking maybe put all of the current appellate court justices’ names into a hat and randomly draw two of them. This shouldn’t be that hard to solve. But it’s always cool to see something that hasn’t come up before.

Here come the threats to businesses

The forced birth fanatics are just getting started. And it’s already ugly.

A group of Texas state House lawmakers called the Texas Freedom Caucus sent a letter to a law firm in Dallas last week threatening “consequences” over the firm’s decision to reimburse employees for the costs of out-of-state travel to obtain an abortion.

The lawmakers’ missive, sent and posted on its website on July 7, accused the firm, Sidley Austin LLP, of being “complicit in illegal abortions” in Texas that were allegedly performed before and after the Supreme Court issued its Dobbs ruling that struck down Roe v. Wade.

“It has come to our attention that Sidley Austin has decided to reimburse the travel costs of employees who leave Texas to murder their unborn children,” state Rep. Mayes Middleton (R), the chair of the Texas Freedom Caucus, wrote in the email to Sidley Austin, which is based in Chicago but has an office in Dallas. “We are writing to inform you of the consequences that you and your colleagues will face for these actions.”

Middleton claimed that the law firm was “exposing itself and each of its partners to felony criminal prosecution and disbarment,” citing Texas’ anti-abortion law from 1925 that the state can now enforce after the Supreme Court struck down Roe last month.

“We will also be introducing legislation next session that will impose additional civil and criminal sanctions on law firms that pay for abortions or abortion travel,” Middleton warned.

The new legislation, according to the letter, will criminalize any Texas company’s reimbursement of “elective abortions” or “abortion-related expenses — regardless of where the abortion occurs, and regardless of the law in the jurisdiction where the abortion occurs.”

It will also require the State Bar of Texas to disbar any lawyer who violates the states’ ban on abortion, Middleton warned.

The email included a CC to Texas Attorney General Ken Paxton (R), who has sworn to enforce the state’s abortion restrictions in the wake of the Supreme Court’s strikedown of Roe.

We’ve known this was coming – these guys are not subtle – and we’re already seeing some of it with other big national companies. As it happens, Monday’s CityCast Houston podcast featured an interview with Jane Robinson, 2020 Democratic candidate for Chief Justice of the 14th Court of Appeals and partner with litigation firm AZA, which is offering similar benefits to its employees. They will for sure be in the crosshairs as well. Hopefully, they’ll be good enough at litigating to hold back the mob, but there’s only so much they’ll be able to do if the laws get changed sufficiently. This is among the things we’re voting on this November.