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Supreme Court confirms that Texas Central is a railroad

Hope it’s not too little, too late.

The Texas Supreme Court on Friday gave the go-ahead to beleaguered plan to build a bullet train connecting Houston and Dallas, ruling that companies behind the project have the power to acquire private property through eminent domain. .

In a 5-3 ruling issued Friday, the high court said that Texas Central Railroad and Texas Logistics could indeed be considered as an “interurban electric railway companies” under state law, even though they have yet to build a railroad, and may never do so.

The decision culminates a years-long legal battle, launched by landowners along the bullet train’s route shortly after project was proposed. One of them, Leon County rancher James Fredrick Miles, filed suit in 2016, after Texas Central sought to survey the roughly 600 acres he owns along its “preferred” route—land which would be bisected if the bullet train is built.

The case turned on what it means to be a “railroad company” or “interurban electric railway company,” which have eminent domain authority under the state Transportation Code.

On HoustonChronicle.com: Critics say the idea of a Houston-Dallas bullet train could be over

Miles, along with other property owners argued that Texas Central didn’t qualify because it wasn’t operating a railroad and may never do so. Texas Central has yet to build any tracks or train stations, or acquire the Japanese Shinkansen railcars called for in the project proposal.

The project’s proponents, however, argued that this line of reasoning yielded a chicken-and-egg problem that would make it impossible to ever build a rail line.

A trial court sided with Miles. A court of appeals in 2020 overturned that ruling, leading Miles to petition the Texas Supreme Court for review. Friday’s ruling affirms the appellate court’s ruling.

See here for the previous update, and here for the majority opinion; there were two concurrences and two dissents, and you can find all of those documents here. As the story notes, this ruling comes at a time of turmoil for Texas Central. It’s not clear if this will finally enable them to move forward with construction, or if the only beneficiary will be whatever tries to resurrect the idea of a privately-run high speed railroad following their downfall. But in the end, they were indeed a railroad. That has to mean something.

Where are we with the Paxton whistleblower lawsuit?

We are in the familiar position of waiting for the drawn-out appeals process to conclude. Pull up a chair and make yourself comfortable.

Best mugshot ever

The appeals process has grown a bit longer in state Attorney General Ken Paxton’s effort to dismiss a whistleblower lawsuit by four top agency officials who claim they were improperly fired in 2020 after accusing him of accepting bribes and other misconduct.

Paxton turned to the Texas Supreme Court 7½ months ago after two lower courts rejected his bids to toss out the lawsuit.

Last month, the Supreme Court told Paxton and the whistleblowers to provide justices with a deeper dive into the legal issues involved, kicking off a second round of legal briefing that was recently extended when the court granted Paxton’s request for an extra month to file his expanded brief.

Paxton’s brief is now due July 27, and although the court told Paxton that additional extensions aren’t likely to be granted, the move means the final brief isn’t due until Aug. 31 at the earliest.

That moves the case into election season as Paxton seeks a third four-year term against a Democrat, Rochelle Garza, who has made questioning Paxton’s ethics a campaign centerpiece. Three opponents tried the same tactic against Paxton in this year’s GOP primaries without success.

The timing also puts the case close to the two-year anniversary of when eight top officials of the attorney general’s office met with FBI agents and other investigators to relate their suspicions that Paxton had misused the powers of his office to help a friend and political donor, Austin real estate investor Nate Paul.

See here and here for the most recent updates. Paxton’s argument is that as an elected rather than appointed official, he doesn’t count as a “public official” under the Texas Whistleblower Act, so the employees who fired him have no grounds to sue. He has other arguments, but that’s the main thing that will be of interest to the Supreme Court. I’m sure you can surmise what I think, but if you want to dig deeper you can click the Texas Whistleblower Act tag link and review other posts in this genre.

Just as a reminder, we are also waiting for the FBI to take some kind of action in their investigation of the Ken Paxton-Nate Paul dealings, the State Bar complaint against Paxton for his attempt to overthrow the 2020 election should have a hearing sometime later this summer, and of course there’s the granddaddy of them all, the original state charges that Paxton engaged in securities fraud, which are now eight years old. He’s sure been a busy boy, hasn’t he?

Is Texas Central in trouble?

This story sure questions its stability.

The departure of Texas Central Railway’s CEO has critics of the proposed bullet train between Houston and Dallas optimistic the controversial project has reached its last stop, far short of ever starting construction.

“Texas high-speed rail is collapsing before our eyes,” Rep. Kevin Brady, R-The Woodlands, a longtime skeptic of the plan, said in a social media post. “Today, with no leadership, no funding, no permits and no Washington bail-out from taxpayers, this project is dead.”

Carlos Aguilar, who stepped in as CEO in December 2016 as Texas Central said it was closing in on construction approvals, announced Saturday that he was leaving the company.

“While I could not align our current stakeholders on a common vision for a path forward, I wish the project the greatest success and remain convinced of the importance of this venture for the safety and prosperity of ALL Texans,” Aguilar wrote in a post on the career development site LinkedIn.

Texas Central did not respond to a request for comment.

Aguilar’s departure follows a moribund few months for the company, which dramatically slashed its staff early in the COVID pandemic, while saying it still planned to break ground soon on the 240-mile line between the two metro areas. The Federal Railroad Administration in September 2020 approved plans for the line, mostly along a utility corridor through 11 Texas counties, with a stop near College Station.

While a major step forward, the announcement was among the last significant moves for the proposed train line that was to use Japanese Shinkansen railcars assembled in the United States to whisk travelers between Houston and Dallas in 90 minutes.

For nearly two years, Texas Central announced various reiterations of previous agreements, shed more staff and fought critics who sought to strip it of its condemnation rights.

The issue of whether the company can acquire property via eminent domain remains unresolved, with a ruling pending from the Texas Supreme Court.

CEOs come and go – this one’s departure doesn’t necessarily mean anything. The lack of news is more troubling – TCR had hoped to start construction in 2020, and while we can all understand why that didn’t happen (seriously, look at the date on that post), the fact that they haven’t announced a new target date to start isn’t encouraging. I continue to believe that this project makes a lot of sense, but if nothing else the original contention that a privately-owned and funded railroad could get lines built and trains running in a faster and more efficient manner than a government-run entity has been sorely tested. I hate to think that all of this work could be thrown away and we’d be back at square one, but that outcome is in play. I sure hope to see something contrary to that soon.

Harris County GOP drops its lawsuit over election night vote dropoffs

It wasn’t getting anywhere, anyway.

The Harris County GOP on Friday dropped its lawsuit, filed on the day of last month’s primary runoff election, challenging the county’s plan for counting ballots.

Local Republican party officials argued the county’s ballot transport protocol violated state election law. The lawsuit, filed just hours before polls closed on Election Day, could have caused serious delays in counting ballots on May 24 had the Texas Supreme Court agreed with the Harris County GOP that the plan was unlawful. Instead, the court did not issue an opinion and election night ballot counting proceeded uneventfully at NRG Arena.

[…]

The Harris County Elections Administrator’s office debuted the plan in the May 7 election — deputizing law enforcement officials and full-time county staffers to deliver ballots from the polling location to the county’s central counting station.

Traditionally, the responsibility of transporting the ballots to the counting station on election night has fallen to election judges, the final task at the end of their 15-hour day. An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process.

The Harris County GOP pushed back on the county’s plan, arguing only election judges are allowed to transport ballots and instructing Republican election judges to drive ballots themselves. The Election Administrator’s office notified Republican election judges they could “opt in” to the county’s plan if they wished, and at least 31 of them did so.

At a May 11 hearing with the state House Elections Committee, Harris County Elections Administrator Isabel Longoria argued the county’s ballot delivery plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

Keith Ingram, the secretary of state’s director of elections, told lawmakers in the hearing he disagreed with that interpretation and believed Harris County’s plan violated the law.

See here for the background. As noted recently, the Supreme Court never responded to the initial writ, so I assume this was just a matter of the local GOP deciding it wasn’t worth the effort to continue. With a new election administrator about to come on board, we can revisit the matter and see if there’s a consensus to be had. From what I’ve gathered from talking to people, the multiple-dropoff-locations idea, which had been Diane Trautman’s original plan, is probably the best way to go. But we’ll see what happens.

Would you believe there’s still Renew Houston litigation out there?

This hit my mailbox on Friday.

Today, the Supreme Court of Texas ruled in the City’s favor in Perez v. Turner, a challenge to Houston’s drainage fee, which provides the City with $125 million per year to pay for drainage infrastructure projects.

The Court found that plaintiff’s challenges failed because of Houston’s authority as a home – rule city to enact a drainage program.

“The City remains committed to protecting its citizens and their homes from flooding. The City’s continued ability to charge a drainage fee will allow it to do so in a fiscally responsible way and undertake essential drainage projects now and in the future,” said Mayor Sylvester Turner.

What the heck? Off to the Supreme Court website I scurry, and I find this.

Plaintiff Elizabeth Perez filed this case in 2015 challenging the City of Houston’s assessment, collection, and expenditure of a “drainage fee.” Perez alleged that the ordinance authorizing the drainage fee was invalid because the ordinance was premised on a faulty amendment to the city charter. She sought a variety of relief for herself and a class of similarly situated taxpayers, including a declaration of the drainage fee ordinance’s invalidity, an injunction against the City’s collection of drainage fees, and reimbursement of drainage fees already paid.

The nature of this case changed dramatically in November 2018, while the case was on appeal. The City passed a new charter amendment curing many of the defects Perez alleged in the drainage fee ordinance. Although the parties’ briefing is less than clear about the effect on this case of the 2018 charter amendment, Perez conceded at oral argument that the passage of the new charter amendment significantly truncated her original claims. As we construe what remains of this case after the November 2018 amendment, Perez has two ongoing claims—one for reimbursement of the drainage fees she paid prior to 2018, and one for a narrow prospective injunction against the future expenditure of fees collected prior to 2018. As explained below, we affirm the lower courts’ dismissal of these claims, but we remand the case to the district court to allow Perez to replead in light of intervening events.

What follows was a longish and very technical opinion that my non-layer brain could not quite wade through. I remember the re-vote on Renew Houston in 2018, which became a likelihood after SCOTx ruled in 2015 that the original 2010 ballot language “obscured the nature and cost of the drainage fee”. The case was sent back to the district court, which then voided the referendum. The re-vote was subsequently held to address those issues. One of the original plaintiffs filed another lawsuit after that 2015 ruling to get back the money she had paid in drainage fees and to compel the city to refund anything they had previously spent from ReBuild; this ruling was an outgrowth of that later litigation, which I either didn’t notice at the time or didn’t follow. I think the bottom line at this point is that it’s very unlikely that any new challenges to Renew/ReBuild Houston will succeed, but the plaintiff is welcome to try her luck again in the district court, and maybe in another five years or so we’ll get a final ruling on that.

SCOTx answers the Fifth Circuit’s questions

Some late-breaking SB1 lawsuit news.

The Texas Supreme Court issued a ruling Friday on the term “solicit” as it pertains to the state’s new election code.

[…]

Of three main issues, one raised several questions pertaining to the definition of “solicit.” The questions arose after the plaintiff, Harris County Elections Administrator Isabel Longoria, argued the vagueness of the term. In one argument, Longoria’s attorneys requested that the term “solicit” be tethered only to vote-by-mail applications sent to those ineligible voters.

State justices rejected that request.

“The statute does not prohibit solicitation merely of those ineligible to vote by mail. Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the opinion read.

In a second request, Longoria’s team argued that “solicitation” in its broad definition could include terms that are less forceful in nature, including “encourage” or “request.

The defendant, Texas Attorney General Ken Paxton’s team, said it defined “solicit” as beyond encouragement, but more so “importuning or strongly urging.” Paxton said that stating “please fill out this application to vote by mail” would constitute solicitation.

While justices refrained from defining “solicit,” stating they were not requested to, they agreed with Paxton that “solicit” is not limited to demands that a person submit an application to vote by mail, but includes statements such as “please fill out this application to vote by mail.”

But justices did find that telling potential voters they have the opportunity to apply for mail-in ballots does not constitute solicitation.

“The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one,” the opinion read. “Without expressing an opinion as to any particular statement plaintiffs may wish to make, we conclude that (the law) does not include broad statements such as telling potential voters that they have the opportunity to apply for mail-in ballots.”

See here and here for the background, and here for the opinion. As noted in the previous update, by this time both sides had agreed that Volunteer Deputy Registrars (VDRs) were not public officials and (I presume) not covered by SB1, and that the Attorney General did not have enforcement power for SB1 (not clear to me if District Attorneys might, however). I expect this means that the Fifth Circuit will rule that plaintiff Cathy Morgan, who is a VDR, has no standing to sue.

On the three-part question that SCOTx did have to answer, my reading is that under SB1 it would be illegal for a county elections administrator to pre-emptively send a vote by mail application to everyone who is eligible to vote by mail, as Chris Hollins did in 2020. Such applications can only be sent to people who ask for them. Providing general information about the vote by mail process, including how to apply, would not be barred. I still think the whole thing is a ridiculous over-reaction to what Hollins did in 2020, and that we should be making it easier to vote by mail in general, but all things considered, compared to where we were before SB1, this isn’t a major setback.

It should be noted that there’s still a lot of room for future disputes here, which likely will remain the case even after a final ruling in this lawsuit. From the opinion, on the matter of the definition of the word “solicit”:

The Fifth Circuit next asks whether “solicits” is “limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies).” 2022 WL 832239, at *6. Plaintiffs suggest that the ordinary meaning of “solicit” includes speech that lacks the insistence normally associated with a demand. According to Plaintiffs, the term’s ordinary meaning includes speech that is far less forceful. Indeed, under their view, solicitation includes all the following: “requesting, urging, encouraging, seeking, imploring, or inducing.”

Paxton argues that the Legislature could not have intended to sweep so broadly. He argues, for example, that “solicits” cannot include mere encouragement of an action because the Legislature has used both “solicits” and “encourages” in many statutes, indicating that they have different meanings. See, e.g., TEX. EDUC. CODE § 37.152(a) (“A person commits an offense if the person . . . solicits, encourages, directs, aids, or attempts to aid another in engaging in hazing . . . .”); TEX. PENAL CODE § 7.02(a)(2) (holding a person criminally responsible for another’s offense if the person “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense”); cf. TEX. ELEC. CODE § 13.031(a) (stating that the purpose of appointing VDRs is “[t]o encourage voter registration”). Paxton urges us to define “solicits” to exclude mere encouragement and to require “importuning or strongly urging.” But Paxton also concedes that stating “please fill out this application to vote by mail” would constitute solicitation.

Whether a particular statement constitutes solicitation for purposes of Section 276.016(a)(1) will, of course, be informed by the precise words spoken and by surrounding context. We therefore do not endeavor to articulate today a comprehensive definition of “solicits” as the term is used in Section 276.016(a)(1). Nor do we express an opinion as to whether any of the general categories of statements Plaintiffs say they wish to make constitutes solicitation. We will leave for another case, with a more developed record, the task of defining the term’s outer reach. For today, we believe it is sufficient to hold that, for purposes of Section 276.016(a)(1), “solicits” is not limited to demands that a person submit an application to vote by mail. As Paxton acknowledges, “solicits” includes statements that fall short of a demand, such as “please fill out this application to vote by mail.”

So Isabel Longoria is arguing that SB1 is super-restrictive on this point, while Ken Paxton is saying, nah, not really. The Court is saying they don’t want to get involved just yet, better to see what happens in the real world rather than rule on hypotheticals, and work with a more complete set of facts. If the parties’ arguments seem backwards to you, the Court addressed that in a footnote:

In a criminal prosecution (or civil-enforcement action), one ordinarily might expect the government to take a broad view of the statute’s application and the defendant to take a narrow view. But to establish (or defeat) a plaintiff’s standing in a pre-enforcement challenge, the plaintiff has an incentive to argue that the statute does apply to her, while the government has an incentive to argue it does not. The unusual dynamic present here contributes to our reluctance to make wide-ranging proclamations on the issues of state law presented.

In other words, at this point in time before the law has really been applied to anyone, the plaintiffs want the Court to believe that the law is vast and (they claim) over-reaching and must be struck down, while the defense wants the Court to think that the law is more modest and thus not a threat to anyone’s Constitutional liberties. Needless to say, when the law is eventually enforced by someone, those arguments will be reversed.

So it’s now back to the Fifth Circuit. I wish there had been more coverage of this – I grant, the opinion dropped on Friday afternoon and some people have lives – but so far all I’ve seen is this story from a site in Greenville (?) and one from a partisan site; I also found paywalled stories at Law.com and Bloomberg Law, but couldn’t read them. Maybe next week one of the regulars will have something, which I hope will include a bit of analysis from someone with actual law knowledge. Until then, this is what I think I know.

Restraining order given in latest lawsuit to stop DFPS investigations

Good.

An Austin judge has temporarily stopped the state from investigating many parents who provide gender-affirming care to their transgender children. The state has ruled out allegations of child abuse against one family under investigation, but at least eight more cases remain open.

Travis County District Judge Jan Soifer issued a temporary restraining order Friday in a lawsuit filed on behalf of three families and members of PFLAG, an LGBTQ advocacy group that claims more than 600 members in Texas.

Brian K. Bond, executive director of PFLAG National, applauded the decision to stop what he called “invasive, unnecessary and unnerving investigations.”

“However, let’s be clear: These investigations into loving and affirming families shouldn’t be happening in the first place,” Bond said in a statement.

[…]

This new lawsuit, filed Wednesday by the American Civil Liberties Union and Lambda Legal, seeks to block investigations into all parents of transgender children who belong to PFLAG.

During Friday’s hearing, Lambda Legal’s Paul Castillo revealed that the state has ruled out allegations of child abuse against Amber and Adam Briggle, who were under investigation for providing gender-affirming care to their 14-year-old son.

The Briggle family, outspoken advocates for transgender rights, once invited Republican Attorney General Ken Paxton over for dinner. Five years later, they ended up at the center of a child abuse investigation that stemmed, in part, from a nonbinding legal opinion that Paxton issued in February.

While their case has been closed, many others remain ongoing. Castillo said one of the families involved in the lawsuit was visited by DFPS investigators Friday morning.

“I do want to highlight for the court that every plaintiff in this case has illustrated the stress and trauma of even the potential of having a child removed, merely based on the suspicion that the family has pursued the medically necessary course of care that is prescribed by their doctor for gender dysphoria,” Castillo said.

See here for the background, and here for an account from Lambda Legal. The investigation into the Briggle family had apparently been dropped before the hearing, but as noted the others were still active. The judge has directed the lawyers to schedule a hearing in the coming days, at which time we’ll see if the order gets extended. While DFPS had restarted investigations following the Supreme Court’s lifting of the statewide injunction, the investigation of the family from that original case is still paused, so most likely these families will get the same relief. It’s just a shame that they have to go to such lengths to get it.

I would encourage you to read this Twitter thread by DMN reporter Lauren McGaughy, who live-tweeted the hearing. It’s obvious from the way the state argued the case and responded to the judge’s questions that they know they’re on extremely shaky ground – they’re minimizing the Abbott/Paxton order at every turn, and just not engaging the questions as much as they can. That’s not a guarantee of success for these or other plaintiffs going forward, and the next Legislature could enshrine these orders as law if the Republicans remain in control, but it’s important to see the lack of faith in their own case. The Chron has more.

New lawsuit filed to stop DFPS “investigation” of trans kids and their families

From the inbox:

The American Civil Liberties Union, Lambda Legal, and the ACLU of Texas, along with Texas-based law firm Baker Botts LLP, today filed a new lawsuit in Texas state court on behalf of PFLAG National and three Texas families. The suit requests that the court block state investigations of PFLAG families in Texas who are supporting their transgender children with medically necessary health care.

The lawsuit names Texas Gov. Greg Abbott, who issued a February directive stating that health care that is medically necessary for treating gender dysphoria should be considered a form of child abuse. The suit also names Department of Family and Protective Services (DFPS) Commissioner Jaime Masters and DFPS as defendants.

“For nearly 50 years, PFLAG parents have united against government efforts to harm their LGBTQ+ kids. By going after trans kids and their families, Gov. Abbott has picked a fight with thousands of families in Texas and across the country who are united as members of PFLAG National,” said Brian K. Bond, Executive Director of PFLAG National. “Loving and affirming your child and empowering them to be themselves is the highest calling of any parent, no matter your child’s gender. If it takes a court ruling to ensure that the law protects families who lead with love in support of transgender Texans, so be it.”

PFLAG provides confidential peer support, education, and advocacy to LGBTQIA+ people, their parents and families, and allies. With a nationwide network of hundreds of chapters—including 17 in Texas—PFLAG National works with families, schools, and communities to build safety and support for transgender youth.

In an earlier lawsuit brought by the ACLU, Lambda Legal, ACLU of Texas, and Baker Botts, the Texas Supreme Court upheld part of an appeals court order preventing DFPS from investigating parents who work with medical professionals to provide their adolescent transgender children with medically necessary health care. That case, Doe v. Abbott, is still pending.

While the Texas Supreme Court emphasized that neither Attorney General Ken Paxton nor Governor Abbott have the power or authority to direct DFPS to investigate the provision of essential and often lifesaving medical care for transgender youth as child abuse, the court limited the order blocking all investigations to the specific plaintiffs who filed suit.

“It is indefensible for any state leader to repeatedly attack trans Texans and weaponize the child welfare system against the loving families of transgender kids and teens.” said Adri Pérez, policy and advocacy strategist at the ACLU of Texas. “We will continue to fight against these baseless attacks on our community. Transgender kids deserve to have life-saving gender-affirming care in Texas, so that they might live safely to grow up to be transgender adults. During this Pride Month, we must take a stand against government leaders that are hellbent on stoking fear, and trying to criminalize transgender young people and their families.”

“Notwithstanding the clear language in the recent Texas Supreme Court ruling that Attorney General Paxton and Gov. Abbott do not have the power or authority to direct DFPS to investigate loving families who are providing medically necessary care for their transgender adolescents as child abuse, the agency seems determined to target these families and threaten to tear them apart,” Lambda Legal Senior Counsel Paul D. Castillo said. “With today’s filing, we are joining with PFLAG in working to protect all Texas families who simply want to make sure their children are safe, happy, and healthy. It is unconscionable that the state wants to interfere in that relationship.”

See here for some background, and here for a copy of the lawsuit, filed on behalf of two anonymous families plus the Briggle family. With the resumption of these investigations by DFPS, this is the only way for these folks to protect themselves. Based on what has happened so far I would expect them to get their restraining orders, and after that we’ll have to see what happens with the original case and its eventual appeals. Until we can get a better government in place, I hope we see more of these lawsuits, enough to cover everyone who will need it. The Trib has more.

Radack drops his redistricting lawsuit

From the inbox:

Former Harris County Commissioner Steve Radack voluntarily dismissed the lawsuit he filed against Harris County Commissioners Court alleging Commissioners Court violated the Open Meetings Act during county redistricting.

Below is a statement from Harris County Attorney Christian D. Menefee on the lawsuit:

“I’m glad this frivolous lawsuit was dismissed. The County ran a transparent, thorough redistricting process. My office will continue working with each of the Commissioners to ensure the transition process is as seamless as possible.”

The suit sought to have the new Commissioners Court map invalidated and alleged court members violated state law by not making the map public at least 72 hours prior to the meeting at which that map was approved.

As you may recall, first there was a lawsuit filed by Commissioners Cagle and Ramsey along with a couple of voters, which claimed that redrawing of Commissioners Court precincts was a voting rights violation because people who would have voted for Commissioner in 2022 would have to wait until 2024. It was dismissed by a Harris County civil district court judge on the grounds that the plaintiffs did not have jurisdiction to sue. A subsequent writ of mandamus to the Supreme Court was denied mostly on procedural grounds, as there would be no time to take any action as the primaries had already begun. The initial lawsuit is as I understand it pending an appeal to the First Court of Appeals, and SCOTx did not rule on the merits of the litigation so we could see a ruling against the county at some point in the future.

The Radack lawsuit was filed on December 31, shortly after the first lawsuit was dismissed by the district court. It claimed that commissioners violated the Open Meetings Act because they did not make public the map that ultimately was approved within 72 hours of the meeting. As far as I know, this suit never had a hearing in court. I checked with the County Attorney’s office and the pending appeal to the First Court is the only active litigation over county redistricting at this time. So there you have it.

UPDATE: Here’s a Chron story about it.

Maybe this is finally the end of that zombie same sex employee lawsuit

I dream a dream.

The Texas Supreme Court has declined to consider a challenge aimed at preventing the city of Houston from offering benefits to employees’ same-sex spouses.

The ruling is the latest blow to two Houston residents’ prolonged fight against a policy they consider an illegal use of taxpayer dollars.

Plaintiffs Jack Pidgeon and Larry Hicks have waged a legal battle against the policy since 2013, when the city, then led by former Mayor Annise Parker, granted government benefits to municipal employees’ same-sex spouses. Parker was the city’s first openly gay mayor.

On Friday, the state Supreme Court declined to review the pair’s case against the city, which originated nine years ago and has failed to find footing even in the conservative-leaning Texas judiciary.

[…]

Of the pair’s decade-long campaign to overturn her administration’s policy, Parker said Tuesday she hoped the court’s decision would quash future challenges.

“I didn’t do it to make a point,” Parker said of the policy. “I did it to be fair to all married city employees. Marriage should be marriage. Equal should be equal.”

See here and here for the previous updates. These guys and their stooge lawyer Jared Woodfill have more than proven that they really really hate gay people, but surely even this kind of rabid bigotry has its limits. The bell has rung, the lights are out, the doors have closed, and Elvis has left the building. Go find a less destructive hobby, fellas. I’ve heard gardening is nice.

A few remaining threads from the runoffs

It was, as noted, a smooth and easy night in Harris County, despite the folderol from earlier in the day.

Harris County election drama in the courts did not prevent voting officials from what could be a record speedy count.

At midnight, only two of the 520 ballots boxes used for Tuesday’s election were outstanding, meaning the vast majority were in the hands of officials who were rapidly counting them.

“I will be a happy girl if we get everything in by 1 a.m.,” said Isabel Longoria, Harris County elections administrator. “This is what happens with a well executed plan.”

By 11:30 250 Democratic and 246 Republican polling sites had turned in their ballots, while about 20 more were on site and awaiting a procedural check before officials signed off on the receipt. Each party had 260 locations, which they shared, meaning election counters at NRG Arena had 189 of the needed 520 ballot boxes.

About 150 cars snaked through the NRG parking lot earlier in the night, Longoria said, moving “slow and steady.”

On the official count, five ballot boxes were listed as outstanding at 11:45 p.m., which quickly ticked down.

See here for the background. Still no word from SCOTx as far as I know. It sure would be nice if this “easy night, returns posted in a timely fashion” became the new narrative.

There are still a couple of unresolved elections. CD15 is way too close to call.

With all precincts reporting on Tuesday night, Democratic primary candidate for Congressional District 15 Michelle Vallejo led the race ahead of Ruben Ramirez by only 23 votes. Of the 12,063 total votes reported on Wednesday morning, Vallejo received 6,043 votes and Ramirez received 6,020 votes district-wide.

Hilda Salinas, assistant director of the Hidalgo County Elections Department, said that the race was too close to call on Wednesday morning, with a final result expected on Thursday, June 2.

“We still have to wait for all the out of county ballots and mail-in ballots to come in,” Salinas said. “The Ballot Board will be meeting on Wednesday to finalize everything so that everything can be canvassed on Thursday.”

The canvassing process is the final step before certification of results, and it includes a careful tally of all ballots.

“As per Texas election code, there’s certain ballots that still have time to come in and be counted by our ballot board,” Salinas added.

Both campaigns declined to comment on Wednesday morning on whether a call for a recount could occur over the next week.

Vallejo issued a statement late Tuesday night: “Though the race is too close to call, we are heartened by the clear path to victory.”

A statement from the Ramirez campaign Wednesday morning stated, “Our campaign trusts in the democratic process and integrity of this election. We know that our election workers are doing all they can to get us a result, and we thank them for their tireless work.”

We’ll see what happens. CD15 is the closest district based on the new map and the 2020 returns, and it’s a big target for Republicans, with their candidate already rolling in cash. It would be nice to get this resolved quickly so the nominee can move forward.

And of course, there’s CD28, which is almost as close.

U.S. Rep. Henry Cuellar, the last anti-abortion Democrat in the U.S. House of Representatives, boldly declared victory just before midnight in his nail-biter primary runoff race. But his progressive challenger, Jessica Cisneros, refused to concede, as the race was separated by less than 200 votes with all counties reporting their votes.

“This election is still too close to call, and we are still waiting for every ballot and eligible vote to be counted,” she said in a tweet, shortly after Cuellar declared himself the winner.

Just before midnight in Texas, Cuellar led Cisneros by a mere 177 votes.

At the time he declared victory, no major news organization had called the race.

“Tonight, the 28th Congressional District spoke, and we witnessed our great Democratic system at work,” he said in a statement. “The results are in, all the votes have been tallied — I am honored to have once again been re-elected as the Democratic Nominee for Congress.”

With such a narrow margin, it is likely the race may not be decided for days. Mail-in votes from domestic voters can still be counted if they were postmarked by Tuesday and are received by counties by 5 p.m. Wednesday. The race is also within the margin that Cisneros can request a recount.

I’m ready for this race to be over. Just tell me who won so we can move on with our lives. I fully expect there will be a recount, however.

The election night experience

Let me start off by saying that my heart breaks for everyone in Uvalde. I cannot begin to fathom the pain and loss they are experiencing. I don’t know when we as a society will act to protect people from gun violence, but we cannot act quickly enough. We certainly didn’t for Uvalde, or Santa Fe, or El Paso, or any of too many other places to name.

For the subject that I wanted to be thinking about yesterday, we start with this.

Harris County voters are in for a long election night, with full election results in primary runoff races not expected until well into Wednesday. The night also could be politically turbulent as a dispute plays out over one line in the state’s election code.

One reason for the expected slow count Tuesday is the Harris County Republican Party’s decision to break with the county’s ballot delivery plan, according to Harris County Elections Administrator Isabel Longoria. After closing the polls, election judges will hand off ballots to law enforcement officers and deputized county staffers, who will drive the equipment to the central counting station at NRG Arena on the judges’ behalf. The Harris County GOP argues the plan violates state law, so they are advising their party’s election judges to drive the ballots to NRG themselves. The Texas Secretary of State’s office agrees with the GOP’s assessment.

An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process. In the past, the responsibility of transporting the ballots to the counting station has fallen to these election judges, the final task at the end of their 15-hour day.

Despite the GOP’s criticism, at least 40 Republican judges are choosing to participate in the county’s plan.

The dispute seems to be more about politics than the law, Martin Renteria, a Republican election judge in Harris County, said. He has no problem trusting a law enforcement officer to deliver the ballots, especially in a primary election where a Republican candidate is going to win no matter what.

“A Republican is going to win during the primary election. It’s going to be Republican versus Republican,” Renteria said. “It’s just illogical to me, and this is a part of the story that nobody talks about.”

[…]

Under state law, ballots should be delivered by either the election judge or an election clerk designated by that judge.

At a May 11 hearing with the state House Elections Committee to address delayed election results, Longoria argued the plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

“The election code does not speak to the delivery other than the presiding judge must turn over those election records to our election office. So it doesn’t speak to who has to drive to meet the other person to do so,” Longoria said.

The Texas Secretary of State’s office has disagreed with her interpretation and urged the county to change its plan.

“Harris County’s decision to allow volunteers to transport election records — including voted ballots — to the county’s Central Count location on Election Night is incompatible with the Texas Election Code and violates well-established chain of custody protocols spelled out under Texas law,” Texas Secretary of State spokesperson Sam Taylor said in a statement on Friday.

However, Gerald Birnberg, an elections attorney and General Counsel to the Harris County Democratic Party, questioned the Secretary of State’s logic, pointing out that its own office deputizes others to perform certain duties.

“The same way that the Secretary of State is deputizing these people in his office to speak on behalf of the Secretary of State on statutory matters, to perform his statutory duties, the elections administrator is deputizing individuals to carry out duties and responsibilities and functions that are otherwise prescribed to be discharged by the elections administrator,” Birnberg said.

[…]

The Harris County Elections Administrator’s office maintains the Secretary of State’s office knew about the strategy and raised no objections when they implemented the ballot delivery plan during the May 7 election.

In a statement, Longoria said: “In April, the EA’s Office discussed the May 7 law enforcement and county driver program with the Secretary of State’s Office’s Managing Attorney of the Elections Division, specifically requesting guidance and recommendations. The SOS raised no concerns, legal or otherwise, with the program. Further, the EA’s Office discussed the plan for both May elections with both political parties as early as April 7. Both parties had the opportunity to ask questions, review the chain of custody document, and raise issues. Neither party raised concerns.

In fact, the first time any concerns were raised occurred during a public meeting May 11 at the Election Committee Hearing by the Secretary of State’s Office. One week later, just six days from election day, the Harris County Republican Party notified us that its judges would not participate in the program.”

See here for the background. Later in the day, we got this.

With voters walking into polling places and ballots set to arrive at NRG Arena in a few hours, Harris County’s Republican Party has challenged the process election officials will use to transfer ballots from locations to the central counting center, citing concerns with handing the machines over to anyone but precinct judges.

In the 18-page filing to the Texas Supreme Court around 2 p.m. on Tuesday, the local Republican party says despite assurances that election officials have it under control, state election law and past experience make them wary to hand over ballots to emissaries so they can ferry to a central location.

Cindy Siegel, chairwoman of the Harris County GOP, said officials are impeding on the democratic process.

“They are trying to make it as difficult as possible, and talking people out (of driving ballots themselves) by warning them there will be long lines,” Siegel said. “They are scaring people into creating this system that isn’t even legal.”

Lawyers for the GOP argue the county is ignoring state election laws and breaking the mandatory chain of custody for ballots.

“An essential component of the central counting station is the physical delivery of sealed ballot boxes and access to the central counting station is necessary (for) that process to take place,” the filing states.

The petition asks the high court to order Harris County to allow election judges to drive their own precinct ballots to the central counting center at NRG Park.

The request drew a fast rebuke from Democratic Party leaders and Harris County Attorney Christian D. Menefee.

“Their leadership has known about the County’s election day plans for some time, yet they waited until 6 hours before the polls close to now ask a court to throw the plans out the window and put residents’ votes at risk,” Menefee said in a statement. “And in their lawsuit, they flat out misrepresent the county’s plans to the court, making several statements that they know are demonstrably false.”

[…]

“(Longoria’s) office successfully used constables in the May 7 election, and the GOP had no problem at that time,” said Odus Evbagharu, chairman of the Harris County Democratic Party. “Now, someone wakes up on Election Day and suddenly thinks law enforcement officials and deputized election officers are an issue?”

Siegel said that is precisely why the GOP is suing.

It is the May 7 election, and widespread problems that day, that prompted the concerns in the first place. She said Republican judges only learned the day before that election that they would have to hand ballots over at polling sites, rather than drive them downtown themselves. In a handful of cases, no one came to pick up the ballots — leading the election judge to take them home — or couriers failed to drop them off in a timely manner. As a result, the county did not complete its count until Sunday morning, even though fewer than 115,000 ballots had been cast.

Again, I didn’t have a problem with the May 7 reporting. There’s clearly a difference of interpretation of the law here, and if that can’t be resolved on its own then a courtroom is the proper venue. I have a hard time believing that this couldn’t have been litigated before Tuesday afternoon, however. I started writing this post at 8 PM, and as of that time there had been no ruling from SCOTx. I don’t know when they plan on ruling, but at some point it just doesn’t matter.

UPDATE: It’s 10:30 PM, more than a third of the Tuesday votes have been counted, and I see nothing on Twitter or in my inbox to indicate that SCOTx has issued a ruling. So let’s think about this instead:

Well said. Good night.

UPDATE: Here’s a later version of the story about the GOP’s lawsuit over the results delivery process. I still don’t see any mention of a decision being handed down. And for all of the fuss, final results were posted at 1:26 AM, which seems pretty damn reasonable to me. The midnight update had about 98% of ballots counted on the Dem side and about 95% on the GOP side – 70,016 of 72,796 Dem votes and 105,486 of 116,100 GOP votes. Seriously, this was a fine performance by the Elections Office.

Debtors’ court, part 2

Also not good.

One day last September, while trying to pay for groceries, Leslie Alvarez got the shock of her life. All the money in her bank account had disappeared.

The Houston single mother called her bank. An employee told Alvarez that her accounts had been placed on a legal hold. A person she did not know had been authorized to remove money from her accounts.

“I had to tell my kids they had to wait awhile so I could go make money to get what they needed,” she said.

Alvarez was forced to pay up on a $1,500 cash loan as part of a debt judgment issued against her in a Harris County civil court.

Texas doesn’t allow people’s wages to be garnished to pay off debts unless it is to collect child support. By law, however, courts can designate special officers, known as turnover receivers, to force payments by freezing or seizing bank accounts. The legal process became popular in Harris County but has been used all over the state more commonly in recent years, officials say.

“This is the only real way a debt collector can hurt you,” said Craig Noack, a creditor’s attorney in San Antonio who also serves as a court-appointed receiver in Texas.

At issue, though, is whether courts have adequate oversight to ensure a fair process.

Each year, tens of thousands of Texans are subject to a bank seizure as a result of a default judgment that was declared against them because they didn’t show up in court to fight a lawsuit over a debt.

But here’s the dilemma: Most debtors don’t know that they can have their bank accounts cleaned when a debt collector wins a default judgment against them unless they claim exemptions for certain sources of funds, such as child support, Social Security, unemployment benefits and retirement funds. Alvarez had child support payments in her accounts when they were seized.

Just this month, the Supreme Court of Texas took its first steps to establish parameters that would ensure that debtors are informed of their rights to claim exemptions. Under new rules, which took effect May 1, debt collectors must provide at least 17 days for debtors to inform courts that they have funds or property that is exempt from seizure.

“The purpose of these rules and forms is to try to help even out a little bit the playing field so that the debtors get more information,” Texas Supreme Court Chief Justice Nathan Hecht said.

[…]

In the Houston region and other large Texas counties, default judgments rose by 86 percent between 2012 and last year, data show.

“As long as people don’t respond, debt collectors can get a default judgment,” said Ann Baddour, director of the fair financial services project at Texas Appleseed, a consumer advocacy group in Austin. “There’s just this motivation to move forward and sue.”

Even the Texas Creditors Bar Association, a statewide organization of attorneys that engages in debt collections, says it wants to make sure debt collectors don’t take money that is protected by law.

They support the notifications, said Noack, who represented the Texas Creditors Bar Association in discussions before the Supreme Court Advisory Committee about the new rules.

“You’re not going to find a creditor’s attorney out there who wants to take somebody’s Social Security,” he said.

Yet, among the many concerns consumer advocates say still must be addressed is the lack of oversight in Texas courts regarding the appointment of the court officers or turnover receivers.

Texas courts have no way to prevent abuses — or even mistakes — because judges are not required to track their appointments or keep periodic reports on the status of seizures, Houston consumer attorney Benjamin Sanchez said.

“You have these receivers who are doing things but not necessarily reporting back to the court,” Sanchez said.

See here for the previous entry. I hope we can all agree that no one should have their bank account drained as the result of a default judgment where they hadn’t known they needed to appear in court. There needs to be a lot more oversight here, and that’s first a job for the Legislature and then a job for the court system. One possible aspect to a solution might be a public defender system for civil litigation, modeled on the same system for criminal defendants. This is an idea I’ve seen advocated by others, and it makes sense on the principle that everyone should have the right to a lawyer to represent them in court. I’m no expert, I’m just throwing out an idea here. Whatever the case, there’s a real need for reform.

DFPS to resume investigating families of trans kids

Gross and discouraging.

The state of Texas will restart its abuse investigations into families with transgender kids after a recent court ruling that lifted a statewide injunction on such probes.

In a statement on Thursday, the Texas Department of Family and Protective Services said the agency would investigate all allegations of abuse. The statement, while not addressing the investigations into medical treatments for trans youth, indirectly indicated that these probes will now continue.

“DFPS treats all reports of abuse, neglect, and exploitation seriously and will continue to investigate each to the full extent of the law,” the statement read.

Current state law does not explicitly define gender-affirming medical treatments, such as puberty blockers and hormone therapy, as child abuse. A DFPS spokesman did not comment when asked if the agency plans to continue investigating such treatments as child abuse.

Age appropriate and individualized medical treatments for trans youth, including the ones Texas Attorney General Ken Paxton has called abuse, are supported by the state and nation’s largest physicians groups including the American and Texas Medical Associations. These groups have opposed the state’s abuse investigations and other efforts to block or alter gender-affirming care for minors.

The state’s announcement came just days after the Texas Supreme Court ruled that the attorney general and Gov. Greg Abbott, who had directed the agency to investigate certain medical treatments for trans adolescents as child abuse, had no authority to do so. It put control over these probes back into the hands of protective services, which opened at least nine investigations into families with transgender children since the governor issued his directive in February.

One investigation into an agency employee who has a transgender daughter will remain paused while the family fights to overturn the abuse policy, the ruling stated.

[…]

Brian Klosterboer, an attorney with the ACLU of Texas who is on the team representing the unnamed DFPS employee, said the state’s decision to reopen the cases is unfortunate and unlawful. He said his team believes that the high court’s decision removes any responsibility for Texans to report trans youth getting treatments.

“We are going to be closely monitoring what the agency does. We would encourage families that have any reason to believe that they have an investigation to seek legal help,” Klosterboer said.

“Abbott’s letter and Paxton’s opinion did not change Texas law,” he added. “Gender-affirming health care is still legal in all 50 states.”

See here for the previous entry. The initial litigation is still ongoing – as is so often the case in these battles, the issue is over whether or not the law or in this case executive order can be enforced while the lawsuit is being heard – so there may still be a statewide injunction at some point. There’s also a clear path for other families to file similar lawsuits to get injunctions for themselves, similar to what abortion providers and funds were facing with SB8. It’s still a mess and a huge burden for these people that have done nothing wrong and just want to be left alone. And it’s another reason to vote these guys out in November. The Trib has more.

SCOTx ponders the questions the Fifth Circuit asked it about SB1

Seems like there’s not that much in dispute, but there’s always something.

Texas Supreme Court justices questioned during oral argument if they should answer certified questions from a federal appeals court about challenges to an election law that created penalties for soliciting voters to use mail-in ballots.

The case, Paxton v. Longoria, concerns a First-Amendment issue over how provisions in Senate Bill 1, a 2021 law, could lead to civil penalties and or criminal prosecution of county election administrators and volunteer deputy registrars.

During a Wednesday hearing before the court, the foremost issue that appeared to concern the justices was whether they should provide an advisory opinion to the U.S. Fifth Circuit Court of Appeals at all.

Since the case has progressed from federal district court to the Fifth Circuit and on to the state Supreme Court, the parties positions have changed and the justices find themselves in the unusual position of being asked to answer three questions where there is very little if any disagreement between the parties.

The Fifth Circuit asks the justice to answer whether a volunteer deputy registrar, or VDR, is a public official under the Texas Election Code; whether speech the plaintiffs intend to use constitutes “solicitation” within the context of the state code; and whether the Texas Attorney General has the power to enforce that code.

The plaintiffs are Harris County Elections Administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who assists people with mail-in ballots in Travis and Williamson counties.

The state, represented by Lanora Pettit, a principal deputy solicitor general with the Office of Attorney General, acknowledged in her brief that volunteer deputy registrars are not public officials subject to prosecution; the term “solicit” does not include merely providing information but instead requires “strongly urging” a voter to fill out an application that was not requested; and the Attorney General is not a proper official to seek civil penalties.

Sean Morales-Doyle of the Brennan Center for Justice at New York University School of Law submitted a brief that was in line with Pettit on the first and third questions, but had a nuanced distinction on the question of solicitation’s meaning.

Justice Jeff Boyd asked Morales-Doyle, “I’m just not sure why the dispute matters. If everybody agrees that the VDR is not a public official, so therefore has no standing, everybody agrees that Ms. Longoria has not … indicated any intent to violate in Williamson County, and everybody agrees the attorney general has no enforcement authority , where’s the case or controversy?”

Morales-Doyle said that Morgan began the case with a reasonable fear of prosecution and while the state has indicated a disinclination to prosecute she does not know the position of the Travis County district attorney, nor what future district attorneys would do.

If the questions are not answered, she would therefore still need to have the temporary injunction in place, he said.

On defining solicitation, because a felony criminal prosecution is possible, Justice Jane Bland asked if the state should limit its meaning to the penal code’s definition, which would restrict the term to situations where a public official induces someone to commit a criminal act.

Morales-Doyle supported that approach, noting that every criminal solicitation statute that he is aware of applies only to solicitation of criminal conduct.

“What is troubling everybody—and apparently troubling the attorney general who wants to give a definition of solicitation that I’m not aware existing in any criminal code—is the absurd result that someone could be held criminally liable for encouraging their fellow citizen to vote,” Morales-Doyle said.

On rebuttal, Pettit argued that sanctionable solicitation is not limited to criminal inducement. She cited the example of barratry, where lawyers unlawfully solicit clients for profit.

See here for the background. The bottom line is that the plaintiffs have asked for a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The motion was granted by a district court judge and then put on hold by the Fifth Circuit. I think the Fifth Circuit is evaluating whether to put the injunction back in place while the rest of the initial lawsuit is litigated, but we are in the weeds here and I don’t have certainty about that. Let’s see what SCOTx says first and maybe that will clue me in. (Any lawyers out there that want to help, by all means please do.)

SCOTx issues mixed ruling on transgender child abuse investigations injunction

We’ll just have to see what happens next.

Texas’ child welfare agency remains blocked from investigating the family of a transgender teen that sued the state in March, but can once again investigate other families that provide gender-affirming care after the Supreme Court of Texas struck down a statewide injunction Friday.

Though it overturned the injunction on procedural grounds, the high court raised questions about why the Department of Family and Protective Services opened these investigations in the first place. The court affirmed in Friday’s ruling that neither Attorney General Ken Paxton nor Gov. Greg Abbott had any grounds to direct the agency’s actions.

[…]

“The Governor and the Attorney General were certainly well within their rights to state their legal and policy views on this topic, but DFPS was not compelled by law to follow them,” Friday’s ruling reads. “DFPS’s press statement, however, suggests that DFPS may have considered itself bound by either the Governor’s letter, the Attorney General’s Opinion, or both. Again, nothing before this Court supports the notion that DFPS is so bound.”

The ruling does note the myriad “informal mechanisms” through which elected officials can influence a state agency, but “ultimately, however, one department or another has the final say.”

[…]

In this case, the ruling said, DFPS was responsible for deciding whether these investigations aligned with current state regulations — and will now have to decide whether to continue these investigations and allow new ones to be opened.

DFPS employees have told The Texas Tribune that agency leadership has acknowledged that these investigations do not meet the current requirements for child abuse and have said policy would need to be generated to match the governor’s directives.

In March, a district judge granted an injunction blocking the state from continuing these investigations or opening new ones. Paxton appealed that decision to the Third Court of Appeals, which reinstated the statewide temporary injunction.

He then petitioned the Supreme Court of Texas to review that appeal. In Friday’s ruling, the high court agreed with Paxton that the appeals court overstepped — while the appeals court can reinstate an injunction if it “preserves the parties’ rights,” they cannot reinstate a temporary injunction of any nature.

In this case, the justices ruled, the “parties” are the family that sued the state initially — not all parents of all transgender children.

Ian Pittman, an Austin attorney representing two families of transgender children that are under investigation for child abuse, said the injunction had allowed his clients to “breathe a sigh of relief” while their investigations were paused. Although the investigations can resume, he’s hopeful that DFPS will now close out the cases.

“This ruling reaffirms that [DFPS Commissioner Jaime Masters] acted improperly when she acknowledged the directive and said they would follow it,” he said. “She was abdicating her responsibilities as commissioner to a political stunt that has no legal authority.”

If DFPS does not close out the cases, he expects other families may consider bringing suits to get any investigations against them similarly blocked.

See here and here for the most recent entries. There were multiple written opinions plus some concurrences and dissents, so just go here and look for case 22-0229 if you want to slog through them. I’ve seen varying reactions to the ruling and will link to them, but this Daily Kos piece is the closest to my own feelings.

Now, some folks are celebrating Friday’s ruling as a win, as the court does explicitly say the governor does not have the “authority to investigate, prosecute, or impose reporting requirements regarding child abuse allegations.” The court also pointed out that neither Abbott nor Paxton could “bind” the Department of Family and Protective Services’ (DFPS) “investigative authority.”

This all sounds encouraging, but again, the court didn’t rule on the ethics of the situation, but whether or not the lower courts were overstepping with the injunction holds. So … What happens now?

DFPS will decide whether or not to continue investigations, as well as whether or not they will open new ones. According to this ruling, the agency was responsible for determining if the investigations met state regulations, to begin with. Per The New York Times, it is not clear whether the ruling will cause the agency to resume investigations right away (or at all) or not.

If the department closes the cases, we can breathe a sigh of relief. If it doesn’t close the cases? It’s likely many more parents will sue the state.

For me? I’m taking it as a cautious win, but I’m not outright celebrating until the agency confirms those cases are closed and that more aren’t on the way.

I’m open to persuasion on this, but until and unless someone changes my mind, I’m waiting to see what DFPS does next, and hoping that as many parents of trans kids are preparing to file their own suits as possible, just in case. Here are statements from the ACLU and Harris County Attorney Christian Menefee, and the Chron, the Texas Signal, and the Texas Observer have more.

Providers’ federal lawsuit against SB8 is officially buried

From last week.

The 5th U.S. Circuit Court of Appeals on Tuesday ended a legal challenge to Texas’ nearly total ban on abortion brought by providers across the state, closing out a contentious court battle that reached the U.S. Supreme Court.

The appeals court dismissed the remaining challenge in the suit after the Texas Supreme Court in March said state licensing officials are not responsible for enforcing the abortion ban and therefore cannot be sued.

A three-judge panel of the 5th Circuit in January asked the state’s high court to resolve this central question to the case, an unusual move made at the request of attorneys for the state that was expected to significantly delay or end the challenge.

[…]

In December, a divided U.S. Supreme Court dismissed all but one challenge in the lawsuit brought by abortion providers. Justices allowed a narrower case, targeting state licensing officials, to proceed in Texas courtrooms.

But Tuesday’s action by the 5th Circuit officially dismisses the case.

It was all over but for the shouting when the State Supreme Court ruled that state medical licensing officials do not have authority to enforce SB8, but the real villain as always was the Fifth Circuit, which engineered the result it wanted. Like I said, the fix was in from the beginning.

As the story notes, there are two more active lawsuits to watch, one by abortion funds against several anti-abortion organizations and individuals, and one by Wendy Davis. I feel like the former is more promising than the latter, but who knows. A state judge had previously ruled that SB8 was unconstitutional but for reasons still unclear declined to issue an injunction against it; I suppose that could change at some point. Until then, here we are.

UPDATE: Yes, I’m aware of the leaked draft opinion that eviscerates Roe v Wade. I maintain that the Fifth Circuit is the prime villain of this story, given how they completely disregarded normal procedures, but SCOTUS’ villainy cannot be overstated either.

Debtors’ court

This is not good.

In this court and others in Bexar County, debt collection lawsuits more than doubled from 2012 to 2020.

“I’m trying to manage this behemoth, but there are some guidelines I have to follow as well,” said Roger “Rogelio” Lopez Jr., justice of the peace for Bexar County Precinct 4, who operates out of the Loop 410 courthouse.

Similar scenes are playing out from Houston to Dallas to Fort Worth as debt collectors sue a skyrocketing number of Texans over claims of unpaid credit cards, medical bills, student loans and other debts, a Houston Chronicle examination has found.

Debt collection lawsuits filed statewide have exploded by 73 percent from 2012 to 2021, according to a Chronicle analysis of data from the Texas Office of the Court Administration.

For the first time in history, the 374,000 debt lawsuits filed in the Lone Star State last year made up nearly half of all civil cases in Texas, which include traffic tickets, landlord evictions and small claims such as disputes between neighbors. The crush of debt cases raises concerns that overwhelmed Texas civil courts can’t adequately review each lawsuit and deliver justice while juggling higher-priority cases, consumer advocates say.

That means judges face pressure to move debt lawsuits quickly to keep their dockets manageable. With only minutes to review cases, judges can miss important details, consumer advocates say. The rapid-fire justice puts a sharp focus on whether defendants can get a fair shake, said Mary Spector, professor of law at Southern Methodist University in Dallas.

“Any public perception that the courts are merely rubber-stamping for the creditors is bad for the system,’’ said Spector, who directs a law clinic that works on behalf of consumers in debt litigation.

Texas adopted key provisions that have spurred debt collectors to crank out more cases in recent years.

From 2012 to 2020, state lawmakers passed legislation that gave debt collectors more flexibility to file cases in justice of the peace courts, where filing costs are lower and it takes less time to move cases on the docket. The changes, which included actions by the Supreme Court of Texas to revamp the debt collection process in civil courts, ultimately made it cheaper and faster for debt collectors to win judgments, consumer advocates said.

The Supreme Court of Texas, which is responsible for adopting processes and rules to ensure that state courts are efficient and fair, has been alarmed by the rise in caseloads, Chief Justice Nathan L. Hecht told the Chronicle.

“You need to worry about it,” Hecht said. “This is where the public meets the justice system.”

To address those concerns, the Legislature ordered the state Supreme Court to publish new rules that will require debt collectors to provide additional notification to debtors of their rights, he said. The rules take effect May 1.

Big corporations have high-powered attorneys to manage their interests. When they have a problem, they can ask for help from the Supreme Court. Hecht said they also can lobby the Legislature to prompt changes in state law.

“But this is about the little guy,” he said. “What the justice system has to do is to provide justice for the people who come to it. We want everybody walking away from the court saying, ‘Well, thank God for the court. I may have lost, you know, I wish that had not happened, but I got a fair shake.’ That’s why it’s so important to work on these cases.”

A Chronicle review of dozens of court documents, observations of legal proceedings and an examination of statewide data found that:

  • Last year, 45 percent of lawsuits filed in the state’s civil courts were against Texans for debt, according to data supplied to the Chronicle by the Texas Office of the Court Administration, the state agency that collects the data and operates under the direction of the Supreme Court. In 2017, debt lawsuits represented 30 percent of all civil filings.
  • Harris County saw a similar trend. Last year, debt collectors filed nearly 68,000 lawsuits in the county, an increase of 111 percent from 2015.
  • Cases settled by default judgment have increased since 2012. That means more cases are decided with defendants not present to fight a claim, and the court cannot weigh both sides equally before making a judgment. The number of default judgments in the Houston region and other large Texas counties totaled nearly 74,000 cases in 2021, an increase of 86 percent from 2012.
  • No court in the state has seen a more dramatic increase in debt suits than justice of peace courts. JPs, as they are known, preside over weddings, misdemeanors and truancies. Many JPs are not lawyers. Of the hundreds of thousands of debt collection lawsuits filed in Texas in 2021, 80 percent were in JP courts.

There’s a lot more, so read the rest. Hopefully, the new rules will help, but this seem like a much deeper issue than that. Obviously, a lot of this is societal – poverty, access to attorneys, the ability to take time off from work to attend court hearings, and so on – and there’s not much the courts can do about that. But they can do their part to make sure the playing field inside the courthouse is level, and they need to do that. And the Lege needs to revisit this as well.

Abbott and Patrick ask SCOTx to take up Paxton’s whistleblower appeal

They sort of have a point, but they should still butt out.

Best mugshot ever

Gov. Greg Abbott and Lt. Gov. Dan Patrick on Monday urged the Supreme Court of Texas to take up Attorney General Ken Paxton’s appeal to throw out a whistleblower lawsuit against him.

The appeal is Paxton’s latest attempt to avoid a trial after eight of his former top deputies accused him of bribery and abuse of office in late 2020. Within seven weeks of their complaint to authorities, all eight had either been fired or driven to leave the agency. Four of the fired employees later filed a whistleblower lawsuit against Paxton saying they were fired in retaliation for their complaint and have asked to be reinstated to their jobs. Paxton denies wrongdoing.

Paxton, a Republican, has fought that lawsuit, claiming that the state’s whistleblower law — which covers public employees, appointed officials and governmental entities — does not apply to him because he is an elected official. A district court and an appeals court have ruled against Paxton’s lawyers and said the lawsuit could move forward. But in January, Paxton’s lawyers asked the Texas Supreme Court to reconsider the matter and throw out the case.

Paxton’s lawyers argue that allowing whistleblowers to sue the attorney general for firing them could hamper the executive power that the state constitution gives him. It is the same argument two lower courts have already rejected after hearing from the whistleblowers’ lawyers, who argue that siding with Paxton would take away whistleblower protections for employees trying to report the misconduct of an elected official.

Lawyers for the governor’s and lieutenant governor’s offices did not indicate whether they agree with Paxton’s argument. The two Republican state officials filed friend of the court briefs asking that the high court take up the case because it is relevant to statewide governance and to the powers of an executive office under the Texas Constitution. Because of that, lawyers for the offices argued the case should be considered by a statewide court and not by the local courts that have already rejected Paxton’s argument.

The two lower courts were filled by Democrats. The Texas Supreme Court is made up of nine Republicans.

See here for the background. I don’t think it’s unreasonable to argue that the state’s high court should weigh in on this question. They could, I suppose, simply issue an order denying the appeal request on the grounds that they’re fine with the lower courts’ rulings. Most cases never get close to the Supreme Court. Indeed, one of the themes I saw in the judicial Q&A responses I got from 1st and 14th Court of Appeals candidates in 2018 and 2020 was precisely that those courts are often the last word on a lot of consequential cases. SCOTx has no obligation to take this up. It’s easy to see why they might want to, but in the end it would be unremarkable if they didn’t.

It’s also easy to see that what Abbott and Patrick want is for a court full of Republicans to have the final word, since I’m sure they don’t consider the lower courts to be valid in the same way. One could perversely assert that only a rejection from the all-Republican Supreme Court will settle this matter in a way that might shut up Paxton and his sycophants, though perhaps the Court of Criminal Appeals would beg to differ.

One more thing:

An attorney whose firm represented Paul, the friend and campaign donor to Paxton, also urged the Supreme Court Monday to weigh in on the case, saying it “presents far reaching consequences for our state government.”

Statewide officials like Paxton need to be able to fire or retain employees based on whether they help advance their goals, wrote Kent Hance, founding partner of the Austin-based law firm Hance Scarborough.

“Inferior officers are carefully chosen by an elected official to provide competent policymaking advice in line with the policymaking goals as defined by the elected official,” Hance wrote. “This works well when the goals are in line with the advice, but what happens when they are at odds?”

A political action committee for Hance’s firm — the HS Law PAC — donated $25,000 to Paxton in June 2020, after he intervened in litigation involving Paul, as Hearst Newspapers reported.

Lawyers for one of the whistleblowers pointed to the donation this week.

“Only somebody as shameless as Ken Paxton would get a lobbyist whose firm donated $25,000 to Paxton while it was representing Nate Paul companies to ask the Texas Supreme Court to re-write the Texas Whistleblower Act,” lawyers TJ Turner and Tom Nesbitt said in a statement. They declined to comment on the briefs by Abbott and Patrick.

Hance did not immediately respond to a request for comment, but managing partner Jay Stewart, who is trustee of the PAC, has told Hearst it operates independent of the firm’s litigation section and that the donation had nothing to do with any cases.

Yeah, that’s a pretty good summary of Texas politics. Political donations never have anything to do with getting the political outcome we prefer. Who would ever think such a thing?

Texas Central owes some property taxes

deep sigh

A planned high-speed train between Houston and Dallas, backers say, would allow travelers to avoid costly and time-consuming freeway traffic.

Before it can deliver that relief, however, the company behind the high-speed rail project will have to stop avoiding its own costly property tax bills for dozens of properties across Texas.

At least $623,000 in property taxes owed by Texas Central Railroad are delinquent, according to a brief filed with the Texas Supreme Court in an ongoing condemnation lawsuit, filed by county attorneys from nine of the 11 counties through which the train is planned to run.

“If (Texas Central) cannot afford to pay less than $1 million in property taxes, how will it ever be able to raise the $30-plus billion it needs?” the brief states, referencing what some claim will be the total cost of the project.

Texas Central officials did not respond to a request for comment.

I’m hard pressed to think of a non-embarrassing reason for this. If it was just an administrative screwup, it’s bad but survivable. If it’s something else…hell, I don’t want to know. Just pay your damn taxes already.

SCOTx declines to save Chick-fil-A

But they didn’t kill off the possibility of it being saved, either.

Conservative activists suing the City of San Antonio alleging it violated the Texas “Save Chick-fil-a” law have not presented evidence of a violation, the Texas State Supreme Court ruled Friday morning, as it sent the case back down to a trial court.

The case stems back to a 2019 city council decision to deny the chain’s request to open a restaurant at the San Antonio International Airport because of what a council member described as the company’s support for Christian groups with anti-LGBTQ agendas.

Later that year, Gov. Greg Abbott signed into law — Chick-fil-A cup in-hand — the bill that allows any individual to sue governments that have taken “adverse actions” against corporations due to their support for religious organizations.

A group of people from the San Antonio area, including a conservative activist and former council candidate Patrick von Dohlen, sued the city under the new law. They are represented by lawyer Jonathan Mitchell, a former state solicitor general who helped write the legislation and are backed by amicus briefs from 62 Republican state lawmakers and Abbott.

The justices said the plaintiffs did not “not allege sufficient facts” to sue a governmental body for official action. The court said actions taken before the law was in effect couldn’t be considered as violations of it, and past actions couldn’t be used to assume that the city would in the future violate the law.

“But, more importantly, we do not think the city’s March 2019 conduct standing alone permits a reasonable inference that there exists a “credible threat” of a post-September 1, 2019 adverse action against Chick-fil-A by the city,” the court’s ruling says. “Indeed, the contrary is true. Rather than assume the city would violate (the law), we presume the city would comply with (the law), until the contrary is shown.”

See here, here, and here for some background, and here for the court’s decision, which is fairly technical but still pretty straightforward. The bottom line is that because the San Antonio Council decision to not go with Chick-fil-A was made six months before the dumb “Save Chick-fil-a” law was passed, the justices who joined the majority opinion ruled that the plaintiffs could not claim there was a violation of the law. They also did not accept the argument that the city would have violated the law had it been on the books at the time, which the two concurring justices asserted. They did overturn the appeals court’s dismissal of the lawsuit on the grounds that the plaintiffs should be allowed to make a live pleading with the law now in effect, but I suspect that will be a hollow victory. I say that based in part on the Court’s observation that the city likely would have complied with the law if it had existed at the time, and partly because of this footnote at the end of the decision:

Finally, we note this case may present another jurisdictional issue that has not yet been addressed and should be considered on remand: whether Chick-fil-A’s public statement that it is no longer interested in pursuing a space in the San Antonio airport renders the case moot.

I mean, maybe Chick-fil-A doesn’t want you to try to save it.

Also, too, was the issue of standing, which I noted for its proximity to the state lawsuits against SB8. As is its wont, the Court sidestepped the matter:

Because we hold that petitioners have not demonstrated a waiver of governmental immunity and should have the opportunity to replead, we decline petitioners’ invitation to address standing at this stage. Standing should be determined based on a plaintiff’s live pleading, and it would be premature for us to weigh in on the City’s standing arguments before petitioners have repleaded.

In other words, we’ll deal with it if they sue again. Never decide today what you can put off till tomorrow. Bloomberg and the San Antonio Report has more.

Divorce granted in common-law same-sex marriage case

Good result.

On March 24, a San Antonio jury returned a verdict in favor of Christopher Hoffman, a gay man who sought to prove a common law marriage existed since 1996 with his former partner, Moises Ortiz. The decision clears the way for Hoffman to legally divorce Ortiz and thus be eligible for alimony and other benefits .

Various judges have ruled a same-sex marriage existed before Obergefell vs. Hodges, the 2015 Supreme Court decision that legalized same sex marriage. However, this is the first time a jury in Texas has made such a finding within the confines of a divorce action.

[…]

The four-day trial was held in the 285th District Court of Bexar County, with Judge Aaron Haas presiding, The twelve-person jury voted 10 to 2 in favor of Hoffman. They found the couple was married on February 14, 1996, and that grounds existed for the court to grant a divorce.

In an email to Out In SA, Hoffman’s attorney, Justin P. Nichols, wrote, “To have a jury validate that the couple’s relationship constituted a marriage meant a tremendous amount to Hoffman, who has been fighting for almost three years to have his marriage recognized. This case can have broad implications for thousands of gay couples throughout Texas.”

See here for the background. It is good news, and it should have a positive effect for other same sex couples. I doubt this would be appealed, so the precedent is now there. Given the continued opposition to same-sex marriage among Republicans, though, I would not be surprised to see a bill introduced in the next legislative session to try to overturn this. I hope I’m wrong, but don’t be shocked if it happens.

Paxton appeals to SCOTx to re-allow investigations of trans kids’ families

Of course he did.

Texas Attorney General Ken Paxton has asked the state Supreme Court to intervene to allow child abuse investigations into parents of transgender children. His request comes just days after a Texas appeals court reinstated a temporary injunction blocking the state’s child welfare agency from investigating parents solely because they provide gender-affirming care to their children.

The Texas 3rd Court of Appeals issued the order as part of a lawsuit brought by the American Civil Liberties Union and Lambda Legal on behalf of the parents of a transgender teenager who were being investigated by child welfare workers.

“Having reviewed the record, we conclude that reinstating the temporary injunction is necessary to maintain the status quo and preserve the rights of all parties,” three appellate justices wrote.

Paxton has asked the state Supreme Court to overturn that injunction, claiming in a petition filed Monday that the injunction “prevents the State from fulfilling its duty to protect Texas children.”

In a statement, the ACLU of Texas and Lambda Legal said that while Paxton’s petition is “not surprising, it is disappointing and dangerous.”

[…]

Until the Texas Supreme Court weighs in, the injunction will continue to block the ongoing — and any new — investigations into Texans accused of child abuse based only on the allegation that they provided gender-affirming medical care.

See here, here, and here for the background. Not much to add, the main thing to know is what’s in that last paragraph – the injunction remains in place until and unless SCOTx takes it away. They can take all the time they want.

More on the abortion funds’ lawsuits

Good overview in the WaPo.

The Texas law has so far withstood multiple court challenges by employing a highly controversial legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion after the legal limit. Abortion rights advocates have tried to sue a long list of people in federal court in hopes of overturning S.B. 8, including Texas law clerks, judges and medical board officials — but, in each case, courts found that they were going after the wrong people.

After a month of fielding threats from these antiabortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them have identified themselves as the ones enforcing the law — and, therefore, the ones for abortion rights advocates to hold to account in federal court.

In these cases, the Lilith Fund and the North Texas Equal Access Fund are suing the America First Legal Foundation and the Thomas More Society, two antiabortion legal groups, in federal court, as well as two private citizens in Texas state court. Abortion funds, which raise money to help low-income patients seeking abortion care, have been instrumental in helping patients reach abortion clinics in other states since the Texas ban took effect.

The Thomas More Society’s “invocation of, and intent to enforce, S.B. 8 poses imminent and existential threats to the fundamental and constitutional rights of Plaintiffs, their staff, their volunteers, and their donors,” the abortion funds wrote in their court filing on Wednesday.

The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves, their staff, their volunteers and their donors from the coordinated efforts by people and organizations across the country that have made it clear they intend to enforce S.B. 8 by filing lawsuits against abortion funds,” said Elizabeth Myers, one of the lawyers representing the abortion rights groups.

[…]

Some legal scholars think the new lawsuits by the abortion funds could pose a threat to S.B. 8 now that various people and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas School of Law, who specializes in the federal courts and has closely followed the Texas abortion ban.

“This case is not hypothetical because these particular defendants are in the process of pursuing various kinds of enforcement actions,” said Vladeck. After six months of trying to block the Texas law, abortion funds are probably thinking: “Now we finally have someone. Get out of our way, let’s go,” Vladeck said.

David Cohen, a law professor at Drexel Kline School of Law who specializes in gender and constitutional law, called the latest lawsuit a “brilliant move.” The abortion funds have built a legal case that “avoids many of the challenging legal problems of the previous lawsuits,” he added.

Even if a federal court judge does block the law, Vladeck said, the injunction will probably only apply to the particular defendants listed in the case. While those specific people and organizations would no longer be able to sue under S.B. 8, any other private citizen could still file a lawsuit.

At that point, Vladeck said, Texas abortion providers will have to decide whether they are comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face other lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident that they would win.

With these cases, Vladeck added, abortion rights groups are “building the defensive position.”

“They’re going to court to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face.”

See here and here for some background. I found that story on Tuesday, and on Thursday, the Trib had this to add.

“We are hopeful that any judge who looks at this will recognize the civil enforcement mechanism for what it is … and say these cases aren’t really about abortion,” said Elizabeth Myers, an attorney representing the abortion funds.

Instead, she said, their legal challenge is about stopping the “millions of bounty hunters who can sue in a very rigged one-sided court system” under the law’s private enforcement mechanism.

Aspects of this argument have already succeeded in state court, where a Texas judge found the law to be unconstitutional but declined to block it from being enforced. Now, the same lawyers are taking the case to federal court, where challenges to the law have faltered before.

But this attempt will have an advantage that those did not: The federal suits are filed in Chicago and Washington, D.C., rather than Texas, which allows the plaintiffs to avoid the extremely conservative 5th U.S. Circuit Court of Appeals.

The other two suits are filed in state court and have been added to ongoing multidistrict litigation, where all legal proceedings are stayed while the case is appealed.

South Texas College of Law Houston professor Rocky Rhodes said there are potential obstacles to this approach in federal court, but it’s the “best bet” to block the law that he’s seen yet.

“This is a better procedural mechanism to get the case before the [U.S.] Supreme Court … and it addresses many of the issues from the previous challenges,” he said. “And then, of course, a Supreme Court ruling is binding on all state and federal courts.”

[…]

When the Lilith Fund tweeted a request for donations, the Thomas More Society responded by saying “donors could get sued under SB8” and linking to the press release about its efforts to depose the funds’ leaders.

This makes it clear that the anti-abortion groups intend to bring lawsuits under the Texas abortion law, the new filings argue, and thus the groups can be sued proactively to stop them from doing so.

Neither the Thomas More Society or the America First Legal Foundation responded to requests for comment.

Rhodes has argued in several papers that this is a strong angle to challenge the law.

“This mechanism of ‘wait until you know someone is going to sue you, and then sue them in federal court first,’ is one of the best ways to get an offensive challenge teed up to [the law],” he said.

The filings argue that the abortion law violates advocates’ right to free speech by limiting how they talk to clients, advocate for abortion access and spend their donations, which could be considered political speech. In addition, they argue it is so vague that plaintiffs may not know what conduct is allowed or prohibited; it creates special rules that only apply to these lawsuits, which violates plaintiffs’ rights to equal protection under the law; and allows lawsuits to be brought by people who do not have standing because they have not been directly injured.

If a federal judge agrees with some aspects of these arguments, they could grant an injunction, stopping the Thomas More Society and the America First Legal Foundation from bringing lawsuits against the two abortion funds. The lawsuit also seeks a declaration that the law is “unconstitutional, void, of no effect and therefore not usable” — by anyone.

That wouldn’t stop anyone besides these two groups from bringing lawsuits, but it would create federal court precedent that could be cited in future litigation, Rhodes said.

[…]

Unlike previous legal challenges to the abortion law, these lawsuits deliberately sidestep the most highly politicized aspects of the law.

“This [case] is not really about abortion,” said Myers. “We’re not challenging the six-week ban.”

Myers said that’s not because they believe the six-week ban is constitutional, but rather because the courts may be more open to hearing arguments as to why other aspects of the law are also unconstitutional.

You gotta do what you gotta do, and if this can lead to taking the bounty hunting out of the picture, it will be a lot better. Indeed, that would allow abortions to continue in Texas, at least until SCOTUS can do more violence to Roe v Wade. But that day hasn’t happened yet, and with other states adopting similar bounty hunter laws, we have to deal with the immediate threat. Let’s hope for the best.

Fifth Circuit asks SCOTx for help on some SB1 issues

The Twitter summary:

To recap the history here, back in September a group of plaintiffs including Isabel Longoria filed one of many lawsuits against SB1, the voter suppression law from the special sessions. In December, a motion was filed to get a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. A federal district judge granted the motion, which would have applied to the primaries, and I’m willing to bet would have helped ease the confusion that led to all of those rejected mail ballots, but the Fifth Circuit, as is their wont, put a hold on the injunction.

It’s not clear to me where things are procedurally with this litigation – and remember, there are a bunch of other cases as well – but in this matter the Fifth Circuit wanted to get some clarity on state law before doing whatever it has on its docket to do. Let me just show you what that second linked file says:

The case underlying these certified questions is a pre-enforcement challenge to two recently enacted provisions of the Texas Election Code: section 276.016(a) (the anti-solicitation provision) and section 31.129 (the civil-liability provision) as applied to the anti-solicitation provision. The anti-solicitation provision makes it unlawful for a “public official or election official” while “acting in an official capacity” to “knowingly . . . solicit[] the submission of an application to vote by mail from a person who did not request an application.” The civil-liability provision creates a civil penalty for an election official who is employed by or an office of the state and who violates a provision of the election code.

Isabel Longoria, the Harris County Elections Administrator, and Cathy Morgan, a Volunteer Deputy Registrar serving in Williams and Travis counties, sued the Texas Attorney General, Ken Paxton, to enjoin enforcement of the civil liability provision, as applied to the anti-solicitation provision. And in response to the recent Court of Criminal Appeals case holding that the Texas Attorney General has no independent authority to prosecute criminal offenses created in the Election Code, they also sued the Harris, Travis, and Williamson County district attorneys to challenge the criminal penalties imposed by the anti-solicitation provision. The plaintiffs argue that the provisions violate the First and Fourteenth Amendments because the risk of criminal and civil liability chills speech that “encourage[s] voters to lawfully vote by mail.

After an evidentiary hearing, the district court granted the plaintiffs’ motion for a preliminary injunction, enjoining the defendants from enforcing and prosecuting under the provisions. Paxton and one of the district attorneys (Shawn Dick of Williamson County) appealed. Because the Harris and Travis County district attorneys did not appeal, only Longoria’s challenge to the civil penalty permitted by the civil-liability provision and the Volunteer Deputy Registrar’s challenge to the criminal liability imposed under the anti-solicitation provision were at issue in the appeal.

On its own motion, the U.S. Court of Appeals for the Fifth Circuit has certified the following questions to the Court:

(1) Whether Volunteer Deputy Registrars are “public officials” under the Texas Election Code;

(2) Whether the speech Plaintiffs allege that they intend to engage in constitutes “solicitation” within the context of Texas Election Code § 276.016(a)(1). For example, is the definition narrowly limited to seeking application for violative mail-in ballots? Is it limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies) or does it broadly cover the kinds of comments Plaintiffs stated that they wish to make: telling those who are elderly or disabled, for example, that they have the opportunity to apply for mail-in ballots?; and

(3) Whether the Texas Attorney General is a proper official to enforce Texas Election Code § 31.129.

The Court accepted the certified questions and set oral argument for May 11, 2022.

You now know everything I know. Let’s see what happens in May.

SCOTx hearing on state redistricting lawsuits

The state lawsuits over the “county line rule” in Cameron County and the Eckhardt/Gutierrez “decennial redistricting only in a regular session” contention had a hearing before the State Supreme Court over whether these suits can be heard in state district court.

Attorneys representing a group of Democratic state lawmakers faced off Wednesday with the state attorney general’s office in the latest partisan battle over redrawn political maps passed by the Texas Legislature in 2021.

The arguments before the Texas Supreme Court were part of a case filed against Gov. Greg Abbott by the Mexican American Legislative Caucus, or MALC, that allege Texas Republicans violated the Texas Constitution when they redrew political boundaries after the 2020 U.S. Census.

Attorneys for MALC and what are collectively called the Gutierrez plaintiffs — state Sens. Roland Gutierrez and Sarah Eckhardt, House District 37 candidate Ruben Cortez, and the Tejano Democrats — alleged in state court that the Texas Legislature violated what is known as the “county line rule” when political maps were redrawn in 2021. That rule requires counties with sufficient populations to be kept whole during the process.

They argue the Legislature violated that rule when it passed House Bill 1, the lower chamber’s redistricting bill, because it split the Cameron County line twice when maps were redrawn. It did so by including districts that went in two different directions into two counties to create part of separate House districts, according to a court filing.

The arguments Wednesday centered on whether the courts are a proper venue for the debate, something the state argued against. In December, a three-judge panel denied a request by the attorney general’s office to dismiss the case based on that argument.

“This court has repeatedly recognized that redistricting is a uniquely legislative task,” said Lanora Pettit, an attorney with Texas Attorney General Ken Paxton’s office. Pettit said that a previous ruling by the court stated it could only intervene in “exigent circumstances” but the current lawsuit didn’t qualify.

“This is not such a circumstance,” she said. “Plaintiffs who lack standing seek an order that is a function of the [Texas] Constitution.”

Justice Jeff Boyd said the broad argument seemed “hard to swallow.”

“Challenging new maps on these grounds raises a very important constitutional issue and I hear the state arguing ‘Yeah. Well, so sorry. There is nobody that gets to raise that,” he said.

Later attorney Wallace Jefferson, a former Republican state supreme court chief justice, said that if the plaintiffs did not have standing to sue the state on the issue of redistricting, it would essentially mean that nobody could challenge perceived violations of the Texas Constitution.

“If these voters and these candidates lack standing, no one could ever sue to enforce mandatory provisions of the Texas Constitution,” he said.

See here and here for the background. I had thought at one point that these lawsuits might have affected the primaries this year, but that was not to be. If the plaintiffs prevail, the first election in which we’d see the effects would be 2024, or possibly later depending on how the appeals go. I am of course rooting for the plaintiffs here, but the state’s argument here really does seem very broad. Doesn’t mean they won’t win anyway, but it would be a significant matter if they did, at least on this point. I hope that SCOTx decides to let the issue play out in court before they have to step in, but you never know.

Here’s a Twitter thread from MALC, one of the plaintiffs, about the arguments. A brief interview with MALC attorney Joaquin Gonzalez is in the Texas Signal, and you can find relevant case documents at Democracy Docket. KVUE has more on this part of the case.

As for the Eckhardt/Gutierrez challenge, it’s a bit confusing.

Texas lawmakers are bound by state law to open a fresh round of redistricting in 2023, Texas Attorney General Ken Paxton’s office asserted Tuesday in a Texas Supreme Court hearing.

The assertion came from an appellate attorney with Paxton’s office during a hearing related to multiple lawsuits challenging district maps approved during a special session last year.

Lanora Pettit, Texas’ principal deputy solicitor general, argued that the lawsuits were moot, as plaintiffs including Democratic state Sens. Sarah Eckhardt and Roland Gutierrez as well as the Mexican American Legislative Caucus, are asking for the court to order the Legislature to take up redistricting next year.

“The state takes the position that the Legislature is required to redistrict again in January of 2023 and as a result, because (the plaintiffs) are not seeking to change the outcome — the map — for this election cycle, then whatever this court would be to order would not have an effect on a real world election,” Pettit said.

Democrats are also arguing that the Legislature needs to take up redistricting again in 2023, but believe that a court needs to order it or else Republicans, who led the effort and created a highly favorable map for their party, would not do it otherwise.

The main claims Democrats have in this case revolve around two provisions in state law.

The suit from Eckhardt and Gutierrez points to a provision in the Texas Constitution that requires redistricting to occur during the first regular session of the Legislature following the release of the once-a-decade census.

Because of COVID-19 delays, census redistricting numbers were not released until after 2021′s regular legislative session was adjourned. The process instead took place during a special session.

I guess it comes down to whether the Lege has to redistrict, which would presumably be on terms more favorable to at least some Democrats, or it gets to redistrict, in which case the Republicans get to choose. I’d rather not find out what that looks like. If the suits survive the effort to dismiss them, they will go back before that three-judge panel that first heard arguments in December.

Yes, the statewide injunction against investigations into the families of trans kids is in effect

Good.

A Texas appeals court on Monday reinstated a temporary injunction blocking Texas from investigating parents for child abuse if they allow their transgender children to receive gender-affirming care.

The Texas 3rd Court of Appeals issued the order as part of a lawsuit brought by the American Civil Liberties Union and Lambda Legal on behalf of the parents of a transgender teenager who were being investigated by child welfare workers.

“Having reviewed the record, we conclude that reinstating the temporary injunction is necessary to maintain the status quo and preserve the rights of all parties,” three appellate justices wrote.

[…]

District Judge Amy Clark Meachum issued the temporary injunction March 11 after the ACLU and Lambda Legal sued.

The same night Meachum’s injunction was issued, Paxton filed an appeal and claimed he froze the injunction, allowing the state to continue investigations. However, experts said the appeal fell into a complicated legal area, and lawyers had challenged such automatic stays before, claiming the state should not be able to overturn an injunction simply by filing an appeal.

With Monday’s order, the injunction for now will continue to block the ongoing — and any new — investigations into Texans accused of child abuse based only on the allegation that they provided gender-affirming medical care.

See here and here for the background, and here for a copy of the Third Court’s order. Note that none of this is about the merits, just that as is usually the case the district court judge and now the court of appeals has ordered that the original status quo be maintained while the legal question is being answered. As noted when the original injunction was handed down, there will be a hearing in district court on July 11 for a permanent injunction, which is when the merits of the case will be decided.

According to the Chron, this decision will likely be appealed to the Supreme Court, though as of this writing that has not been announced yet. I don’t know if the same “automatic suspension of the injunction” policy that Paxton claimed for the first appeal would be in play in that situation or not, but I am sure that if it’s even a theoretical possibility, Ken Paxton will assert it. We’ll know soon enough.

When a divorce helps to define a marriage

Interesting case.

A gay San Antonio man has filed for a divorce in which he seeks to prove a common law marriage existed with his former partner of 25 years when federal law prohibited same sex marriage. The law has since then been ruled unconstitutional by Obergefell vs. Hodges in 2015.

If he is successful in his divorce petition, Christopher Hoffman would be eligible for alimony and other benefits from his former partner Moises Ortiz. It would also mark the first time in Texas that a common law [informal] divorce would be granted to a same sex couple who were together prior to Obergefell.

The Texas Family Code provides two methods for establishing a common law [informal] marriage. The first is to “file a declaration of informal marriage with the county clerk. Tex. Fam. Code 2.40l(a)(l).” The second is by showing that “I) the parties ‘agreed to be married’; 2) that the parties lived together as spouses; and 3) that they ‘represented to others that they were married.’ Tex. Fam. Code 2.401 (a)(2).” Additionally, the partner seeking to establish the existence of a common law marriage “bears the burden of demonstrating the three elements by a preponderance of the evidence.”

According to court documents, Hoffman and Ortiz lived together for 25 years beginning in 1994. Hoffman filed for the common law divorce on July 19, 2019 citing adultery and mistreatment among other reasons. In responding to Hoffman’s assertion, Ortiz denies that a common law marriage existed, saying that he and Hoffman had only been roommates.

On July 30, 2019, Judge Mary Lou Alvarez of the 45th District Court of Bexar County found that Ortiz’s claim that he and Hoffman “were simply roommates that acted as partners to be incredulous testimony.” The judge went on to issue a temporary order requiring Ortiz to pay Hoffman $1,200 monthly for interim spousal support until a final jury trial’s verdict.

On January 22, 2021, Ortiz’s attorney filed a motion for a Declaratory Judgment which would have made a final, legally binding declaration that Hoffman’s petition was not valid.

Ortiz contended that there was no precedent in Texas state law to show that Obergefell applies retroactively to same sex couples. Hoffman’s attorney countered that there had been two incidents (Ford v. Freemen 2020 and Hinojosa v. LaFredo 2012) of courts in Texas recognizing “a pre-Obergefell same sex common law marriage. However no Texas appellate court has issued any binding authority on the issue.”

(Lambda Legal Senior Staff Attorney Shelly Skeen authored a brief in the Hinojosa v. LaFredo case.)

There are a couple of precedents I could cite for pre-Obergefell marriages later getting legally dissolved in Texas. Way back in 2010, a Travis County district court judge granted a divorce to two women who had been married in Massachusetts. Then-Attorney General Greg Abbott sued to undo the divorce ruling on the grounds that their marriage was not recognized by the state of Texas. That case went all the way to the State Supreme Court, which ruled against Abbott, upholding a Third Court of Appeals decision that Abbott didn’t have standing because he waited to intervene until after the original district court ruling. That ruling happened a few months before Obergefell, and SCOTx was emphatic that it was not saying anything about the constitutionality of same-sex marriage, just about the AG’s standing to intervene in that case.

In 2014, there was a divorce and child custody filing in Bexar County, also between two women who in this case had been married in Washington,. That one had been filed eight days before a federal judge ruled that Texas’s law against same-sex marriage was unconstitutional; this was the original Texas case filed by Cleopatra De Leon and Nicole Dimetman, and Vic Holmes and Mark Phariss. The judge in that Bexar County case later also ruled that Texas’s law against same-sex marriage was unconstitutional, basing her opinion on the federal case while specifying sections of the state’s Family Code as being illegal. She also cordially invited Greg Abbott to butt the hell out, which kind of makes her my hero. I don’t have any further updates on that case, so it’s my best guess that it eventually proceeded to a normal resolution in the courts.

Finally (yes, I went deep on this one; it’s a topic that fascinates me), there was a post-Obergefell divorce granted in Tarrant County, the culmination of a proceeding that had been filed in 2013. It appears that it was the SCOTUS ruling on same-sex marriage that spurred the case resolution for this one.

So with all that said, and with the usual proviso that I Am Not A Lawyer, I like plaintiff Hoffman’s chances, on the grounds that this is in every other way a pretty normal, boring divorce case that will ultimately be decided on the merits. It’s certainly possible that some bad actors might try to get involved in an effort to pursue a ruling that might draw a distinction between “traditional” marriage and same-sex marriage. I don’t know how that might happen, and I don’t know if it can happen if defendant Ortiz objects to their intervention, I just know that the there are definitely people who would like to intervene in this fashion and for this purpose, and I wouldn’t put it past them. Anyway, I’ll try to keep an eye on this one, just to see how it goes. The trial begins today, so we may know more soon.

Abortion funds file their own lawsuits

It’s good to fight back. I hope it can be successful.

This week, the Lilith Fund and Texas Equal Access Fund, two of Texas’ oldest abortion funds, announced legal action (available to view hereherehere, and here) against two private individuals in Texas and two organizations based outside the state seeking to enforce Senate Bill 8, which has been in place for more than six months.  The Texas bill deputizes private citizens to sue anyone who assists someone with getting an abortion – a move designed to intimidate abortion funds, providers, and the people they serve.

The lawsuits, filed in state and federal courts, would protect abortion funds and the people they support from being sued by anti-abortion extremists in the state and outside organizations.

The filings come as Texas’ abortion ban – the most extreme in the country – has almost entirely cut off access to abortion in a state of more than 29 million people, disproportionately harming people of color and those working to make ends meet who can’t afford to travel for care. Since the ban first took effect, nearly 1,400 Texans have left the state every month and traveled thousands of miles to get their abortions in states as far as Illinois, Washington, Ohio, and Maryland.

“We are yet again being forced to protect the work we do and show up for Texans who need abortions and the people who love them,” said Amanda Beatriz Williams, Executive Director of Lilith Fund. “We won’t be harassed or intimidated out of serving our community, in the courts or anywhere else. We are proud to fight back, even when we have no choice.”

In the face of criminalization and legal attacks, abortion funds have never stopped showing up for their communities. Senate Bill 8, along with the endless restrictions anti-abortion politicians in the Texas legislature have enacted over the last 10 years, has created an unprecedented and unsustainable situation in Texas. Now, with other states passing Texas copycat abortion bans, the impact is permeating far and wide.

“These attacks against our fund are meant to stigmatize funding abortion and prevent us from supporting Texans seeking care,” said Kamyon Conner, Executive Director of Texas Equal Access Fund. “The work we do to help people access abortion helps communities thrive. We will not be intimidated. We’ll continue to stand up to the bullies who have launched this attack on our work, our rights, and our communities.”

Anti-abortion extremists, many of whom don’t even reside in Texas, have one goal to cut off access to abortion, and have targeted abortion funds who help Texans get care. With this legal action, Texas abortion funds are fighting back  to ensure their work and the privacy of the people they serve is not threatened.

I found a DMN story and a Bloomberg Law story about this, but both are paywalled. The two organizations the suits are filed against are the America First Legal Foundation (with a name like that, you know they’re evil) and the Thomas More Society (ditto), and the two individuals are Ashley Maxwell of Hood County and Sadie Weldon of Jack County. If all of those names sound familiar, it’s because those people and those groups had previously filed petitions in state court to be allowed to depose the leaders of the Lilith Fund and the TEA Fund. I don’t know if we can call this a standoff – among other things, we’re in uncharted legal territory, so who knows how the law is going to be interpreted by the various courts – but it’s very much a seismic battle, with unknowable implications.

In the wake of the SCOTx dismissal of the abortion providers’ lawsuit, I noted that injunctions against individuals would need to be on the menu of options for abortion providers going forward. My initial reaction to this was that we were seeing the first of those, but on closer inspection that’s clearly not the case. I do think we will see a whole lot more suits and countersuits in the near future, at least until there’s some more clarity about what will and won’t work in the courts. All I can say for now is that I wish Lilith and TEA all the best, and if you’d been thinking about donating to them, now would be a good time.

Appeals court upholds school district mask mandates

Maybe not the most timely ruling ever, but still nice.

An appellate court on Thursday sided with Texas school districts in their dispute with state officials over mask mandates, which numerous school systems have already lifted as pandemic conditions have eased.

The state’s the 3rd Court of Appeals affirmed a trial court’s orders that granted school districts temporary injunctive relief from the enforcement of an executive order from Gov. Greg Abbott prohibiting mask mandates.

In its opinion Thursday, the appellate court pointed to its opinion in a similar challenge involving Harris County. In that case, the court considered whether a disaster act gave the governor the authority to stop local government entities from implementing COVID-19 safety measures viewed by the governor as “more restrictive than necessary,” according to the opinion.

“For the reasons previously set forth in our opinion in Harris County, we again conclude that the Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by governmental entities and officials,” Thursday’s opinion read.

Many, if not all, school districts that defied Abbott’s order have lifted their mask mandates, including Houston, Dallas, Spring and Aldine ISDs, which were among the plaintiffs.

[…]

With the opinion, the court confirmed the state Education Code gave districts the authority to decide.

“We conclude that the Education Code provisions granting broad authority to local school districts and community college districts to govern and oversee public schools within their districts do not prescribe ‘the procedures for conduct of state business,’” the opinion stated. “In sum, the Texas Disaster Act does not grant the Governor absolute authority to preempt orders issued by local governmental entities, such as school districts, and the provisions of the Education Code relied on by the school districts in issuing their respective facecovering requirements are not subject to suspension under … the Act.”

See here for the background, and here for a copy of the opinion. As noted before, the Supreme Court has yet to take up this question, though at this point maybe they just won’t since it’s not currently at issue. (That could of course change.) Ken Paxton is never one to take an L so I suspect he’ll continue to pursue this. I also strongly suspect that a top item on the agenda for the 2023 Lege, assuming no changes in the power structure, will be to amend the Education Code to explicitly prohibit school districts from making this policy without the permission of the Governor first. Have I mentioned that this is an important election coming up? Just checking. The San Antonio Report has more.

SCOTx puts the last nail in the federal lawsuit against SB8

The fix was in from the beginning.

The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.

The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.

The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.

In a hearing last month, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

On Friday, the justices issued a ruling that seemed to agree with Stone’s “ordinary English interpretation” of the law.

“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.

Abortion advocates, including those who brought this challenge, were unhappy with the ruling.

“We have been fighting this ban for six long months, but the courts have failed us,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then?”

See here for the background and here for a copy of the ruling. I don’t have a good answer to Miller’s question. I don’t have much of anything to say because it’s hard not to feel numb. This is the best I can do:

See here and here for more on the Justice Department’s lawsuit, and here for more on the state lawsuit; you may recall that the judge ruled SB8 unconstitutional but declined to issue a statewide injunction. Maybe the plaintiffs can ask him to reconsider that, I dunno. Vladeck’s option 1 above involves individual providers getting injunctions against individual potential plaintiffs, which should be pursued as a stopgap but is obviously inadequate and unsustainable. That’s where we are today, and you can see why I don’t have much to add. The Chron, the Statesman, WFAA, The 19th, Reform Austin, and Daily Kos have more.

And more people are travelling for abortions

The number of abortions performed in Texas has declined greatly since the passage of SB8. But the number of Texans seeking abortions has remained the same, which is what abortion advocates have always said would be the case.

The number of women leaving Texas to obtain abortions has grown tenfold since lawmakers here banned the procedure after early pregnancy, according to new research from The University of Texas at Austin.

The findings, coupled with a huge uptick in online orders for abortion pills, suggest that the state’s widespread crackdown has not yet led to a large decline in procedures. While abortions at Texas clinics did fall by about half after the new restrictions took effect in September, many women still sought out to end their unwanted pregnancies through other, often more challenging paths.

The law “has not reduced the need for abortion care in Texas. Rather it has reduced in-state access,” said Dr. Kari White, lead investigator at the university’s Texas Policy Evaluation Project.

More than 5,500 Texans traveled to abortion clinics in six surrounding states between September and December of last year, according to the study. That’s nearly 1,400 trips per month, up from about 130 per month in the same period in 2019. The latest tally is likely an undercount, since some clinics did not participate and the study did not include trips to states farther from Texas.

[…]

Abortion rights advocates are already preparing for states to cut access in more than two dozen states across the South and Midwest, and providers are rushing to build out clinic space in northern and coastal states more friendly to abortion rights.

The new findings from Texas may be an early picture of the scramble to come for women in other states. The vast majority of trips out of Texas were to Oklahoma and New Mexico, where clinics are on average several hundred miles from most Texans. Oklahoma has its own “trigger” abortion ban in place if the Supreme Court overturns Roe v. Wade, the 1973 decision protecting the right to abortion until about 23 weeks of pregnancy.

Women interviewed in the study said they faced heavy obstacles in seeking out abortions since the law took effect, including delays at clinics in and out of Texas. One in four said they had visited crisis pregnancy centers, which often discourage women from getting abortions. Researchers interviewed 65 women in total.

See here for the TexPEP news release, and here for the full report. You can consider this a bookend to the other recent report about the increase in demand for abortion-inducing medication. It may seem like a bit of comfort that there are still options available, but one is much more time consuming and expensive, not to mention about to get more so as states like Oklahoma and Louisiana follow in Texas’ cursed footsteps, and the other is also heavily restricted under state law, with the great likelihood of further restrictions coming in future legislative sessions if Republicans remain in control. It’s just a matter of time before the emphasis changes from “ways to make abortion more illegal” to “ways to increase enforcement of anti-abortion laws and increase the penalties for violating them”. Do not think for a minute that locking up people who seek abortions, and the people who help them, is off the table. I guarantee you, it is not.

In the “I hate it when I’m right” department, later the same day that I wrote this, I saw this on Twitter:

Don’t ask how that could be legal, or how it could possibly be enforced. The terror of it is the point. Scare people into thinking they can be locked up for seeking a legal abortion elsewhere, and you’re done.

And on that cheery note, we have this update about the largely futile efforts so far to stop this travesty in the courts.

In its 1973 ruling in Roe v. Wade, the U.S. Supreme Court created a constitutional protection for abortion through viability, the point at which a fetus could likely survive outside the womb, usually around 24 weeks.

Since then, states, including Texas, have been stopped by the federal courts when they’ve tried to ban abortions before that point in pregnancy.

But Texas’ law has so far managed to evade a similar fate. The U.S. Supreme Court declined to stop the law from going into effect before Sept. 1, instead allowing lawyers for the abortion providers to bring a pre-enforcement challenge, which was heard in November.

The U.S. Department of Justice also tried to challenge the law, and succeeded in getting it temporarily enjoined by a federal district judge. That ruling was swiftly overturned by a higher court and the U.S. Supreme Court eventually threw out the DOJ’s challenge.

In December, the Supreme Court also threw out the vast majority of the abortion providers’ legal challenge, allowing only one narrow aspect to proceed. That remaining challenge is slowly wending its way through the courts, but even if it is granted, it would not allow abortion providers to resume providing the procedure after six weeks of pregnancy.

Marc Hearron, senior counsel for the Center for Reproductive Rights, which is representing the abortion providers, said Thursday that their challenge in federal court “no longer stands a chance” of stopping these lawsuits from being filed.

“The Supreme Court greenlit this law’s unprecedented vigilante scheme and essentially said that federal courts are powerless to stop it,” he said. “There is no end in sight to this nightmare.”

Abortion providers have had more luck in Texas courts, where state District Judge David Peeples ruled in December that the law is unconstitutional. His judgment did not block lawsuits from being filed under the law, and is currently being appealed.

[…]

Immediately after Texas’ latest abortion restrictions went into effect Sept. 1, one San Antonio doctor, Alan Braid, announced in a Washington Post op-ed that he had provided an abortion after cardiac activity was detected.

“I fully understood that there could be legal consequences,” Braid wrote, “but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

Three people sued Braid, including two disbarred attorneys who indicated they were more interested in seeing the law tested and getting the money than actually taking a stand against abortion.

Hearron, who is also representing Braid, said Thursday that they have filed a countersuit in federal court against the three claimants, seeking to have the law declared unconstitutional and the suits thrown out.

Beyond those initial three claims, no lawsuits have been brought against anyone for aiding or abetting in a prohibited abortion. But just last week, a group of anti-abortion lawyers asked a judge to allow them to depose the leaders of two abortion funding nonprofits to gather information for potential lawsuits.

So things are bad, and there’s no clear path to them being less bad. If you want something to happen at the federal level, we’re going to need to add at least two more Democratic Senators, which might give us enough to make changes to the filibuster, and we need to hold onto the House as well. If not, well, as the story says, there’s no end in sight.

More school districts dropping mask mandates

Unsurprising.

Some of Texas’ biggest school districts are lifting mask mandates for students just weeks before spring break.

Houston Independent School District, the state’s largest district, and Dallas ISD announced Monday that they would not require students to wear masks. Austin ISD announced Wednesday it would stop requiring masks.

The move comes after the Centers for Disease Control and Prevention announced that coronavirus infection rates were slowing.

“It does give people hope for this spring,” said Dallas ISD superintendent Michael Hinojosa.

All three districts enacted mask mandates in early August amid the delta variant surge and in defiance of Gov. Greg Abbott’s May executive order that says Texas schools can’t require masks.

At the time, dozens of school districts went against the governor’s order, and some were sued.

[…]

Candice Castillo, executive officer of student support services in Houston ISD, said recent data points to a dramatic downturn. In a district with about 195,000 students, there are 46 active cases, a 90% decrease in cases from the peak of omicron.

The district’s decision comes after Harris County Judge Lina Hidalgo lowered Harris County’s COVID-19 threat level from “severe” to “significant.”

“This is the right moment for us to make this decision,” Castillo said.

In Austin ISD, the district has seen a 97% decrease in cases over the last six weeks, and the current number of active cases represents less than 1% of the total student and staff population.

Stephanie Elizalde, Austin ISD superintendent, said Wednesday during an Austin ISD board meeting that the district is abiding by the CDC’s recommendations, but to keep in mind that the fluidity of the pandemic means that the mandate can come back when necessary.

See here for more on HISD lifting its mask mandate. You can feel however you want about this – I know a lot of people are still very apprehensive about easing off on precautions like masking, and I totally understand. I’m still masking in public indoor spaces, and likely will continue for the foreseeable future. But the point is, the districts got to make the decisions they thought were best, based on the status of the pandemic and the advice and guidance from the CDC. That more than anything is what we wanted and deserved. The fact that they managed to hold out in defiance of Abbott and Paxton for all this time is a victory. It could be a transient one – for sure, someone is going to file a bill next session to force school districts to bend the knee to the governor – but at least we have an election first that can affect that action. Again, that’s all we can reasonably ask for at this time.

On the matter of the still-unresolved litigation over the mandates and Abbott’s executive order banning them in the schools:

I Am Not A Lawyer, but my best guess is that SCOTx will eventually take this opportunity to decline to intervene on the grounds that there’s no longer a reason for them to get involved. I suppose they could order the lawsuits to be dismissed, but here’s where my non-lawyerness comes to the fore, because I don’t know if that’s a thing they normally do. Be that as it may, the stars have aligned for them the sidestep a politically charged case, and that I know is a thing they like to do.

More people are choosing the medical abortion option

It’s not like there are good alternatives right now in Texas.

The demand for abortion-inducing medication spiked in the month after Texas significantly limited abortion access and has remained high since, according to new data from a researcher at the University of Texas at Austin.

The study reviewed requests for abortion-inducing medication made to Aid Access, an international nonprofit that provides the medication via the internet to people who cannot otherwise legally access the procedure. Prior to September 2021, the organization typically received an average of 10.8 requests a day from Texans.

Then, the Texas Legislature passed Senate Bill 8, which prohibits abortions after about six weeks of pregnancy, a point at which many people do not know they are pregnant. In the first week after the law went into effect on Sept. 1, Aid Access received an average of 137.7 daily requests from Texas, an increase of over 1000%.

“That big of a spike in requests shows us the uncertainty and chaos created by Senate Bill 8 going into effect,” said Abigail Aiken, the lead researcher on the study. “If it’s not certain that you can go to a clinic and get the care that you need, people will be looking around for what other options they have.”

The demand for the medication has remained higher than normal in the months since, Aiken found.

Medical abortion is typically a two-drug regimen of mifepristone and misoprostol that has been shown to be effective at terminating a pregnancy through the first 10 weeks of pregnancy. In December, the federal government lifted a requirement that the medication be dispensed in person, allowing it to be prescribed by telemedicine and sent through the mail.

But Texas law does not allow the medication to be prescribed through telemedicine or mailed and has limited its use to the first seven weeks of pregnancy.

[…]

Aiken, the researcher behind the study, said it’s impossible to know how and when patients use the medication they access through Aid Access — or how many patients are terminating pregnancies through other means.

But as the U.S. Supreme Court considers whether to overturn the constitutional protection for abortion, Aiken said this Texas data serves as a snapshot of what whole swaths of the country may be facing.

“It’s clear from this research and many studies that just because you make abortion harder to get, it doesn’t mean the need for abortion goes away,” she said. “And many people, they will look for other ways of doing that.”

See here and here for some background. The forced-birth contingent is of course not happy with this and murmuring about ways to pursue “legal action” against international and out of state groups like Aid Access. Not sure how they could do that without being extremely invasive, but I have no doubt that such a thought does not bother them at all. On the assumption that SCOTUS is going to gut Roe v Wade in some significant way, the main question is whether people will mostly still be able to get abortion pills freely, or whether they will have to rely on more evasive options. Both seem very much in play. The Chron has more.