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Another injunction issued to halt DFPS investigations of trans kids’ families

New case, different families.

A Travis County judge on Friday granted a narrow injunction against the state of Texas that will continue to block investigations of child abuse for two families who allowed their children to receive gender-affirming care.

The suit was brought by three Texas families and national LGBT advocacy group PFLAG in response to the Department of Family and Protective Services resuming the investigations this spring, after the Texas Supreme Court ruled it could in a similar but separate case.

“The DFPS Rule was given the effect of a new law or new agency rule, despite no new legislation, regulation, or even valid agency policy,” said Judge Amy Clark Meachum, a Democrat, in granting the injunction, which will last until the case’s resolution.

Like another Travis County judge who granted a temporary restraining order that blocked the investigations into the plaintiff families, Meachum wrote in her ruling Friday that restarting the inquiries would cause “immediate and irreparable injury” to them.

Unlike the previous injunction, however, Meachum’s order does not apply to all members of the chapter-based group PFLAG.

Meachum said Friday that she will “consider legal and factual consideration” and “rule as soon as possible” on whether to do so. Adam and Amber Briggle, the third plaintiff family, was also not included in Friday’s injunction, as their CPS case was closed after the lawsuit was filed.

[…]

There have been 11 investigations of parents of Texas transgender youth, testified Marta Talbert, a director of the state’s Child Protective Investigations unit who was called as a witness by state lawyers. Talbert said five have been closed and two are close to being closed.

The other four cases are stayed by the court through litigation. Talbert said this was either because the state found the youth were not on any kind of puberty blockers or hormones or, more often, because their doctor was able to provide information about their care to investigators.

Lawyers for the plaintiffs disputed that the investigations were being held up for purely administrative reasons and said there seemed to be “further activity” by the child welfare agency on them, contradicting Talbert’s testimony.

See here for a copy of the judge’s order. As the story notes, the state has already filed an appeal, so this will end up before the Supreme Court again in fairly short order. I’m going to go through a bunch of previous posts to review the history so far, but first let’s look at the Statesman story for some further details.

Meachum’s temporary injunction blocked the child-welfare agency from taking any action against the families other than to close its investigations — if that can be done without further contact with the parents or children.

The controversy began in February when Paxton issued a nonbinding legal opinion that said gender-affirming care was prohibited by state child-abuse laws. National medical experts said Paxton relied on false claims, exaggerations and errors to reach that conclusion, but Abbott followed with a Feb. 22 letter directing the Department of Family and Protective Services to investigate such care as abuse, and the state’s child-welfare agency agreed to do so.

Legal challenges followed.

The first lawsuit was filed by a mother, identified only as Jane Doe, who worked for the Department of Family and Protective Services and came under investigation after asking a supervisor what Abbott’s directive meant for her transgender teen. Meachum responded in March by issuing a statewide injunction barring all abuse investigations based solely on providing gender-affirming care.

Paxton’s bid to overturn the injunction is still before the Austin-based 3rd Court of Appeals, but in the meantime, the Texas Supreme Court substantially limited the scope of the judge’s order, striking down the statewide injunction in May while allowing it to apply only to the Doe family.

When Child Protective Services resumed child abuse investigations, three more families filed suit, this time joined by PFLAG, a leading LGBTQ advocacy organization. Last month, a different Travis County judge responded by issuing a temporary restraining order blocking investigations into the three families and any member of PFLAG.

On Wednesday, during a daylong hearing in Austin on whether to convert the restraining order into a longer-lasting injunction, lawyers for Paxton argued that state law gives the child welfare agency the authority to protect minors from abuse, including the potentially improper use of puberty blockers and hormone therapy.

To recap, the first lawsuit to block investigations resulting from Greg Abbott’s executive order, which in turn followed Ken Paxton’s nonbinding opinion, came on March 1, with a DFPS employee and her family, including her 16-year-old daughter, as plaintiffs; Amy Clark Meachum was the judge in this case as well. They won a restraining order, which was then appealed and upheld by the appellate court. On March 11, Judge Meachum issued a statewide injunction to stop the state from investigating anyone for child abuse based solely on the allegation that they provided gender-affirming medical treatment, and anyone from being prosecuted for child abuse for providing gender-affirming care and lifts the mandatory reporting requirements laid out in the directive. This was upheld by the appellate court after some shenanigans by Ken Paxton. On May 13, the Supreme Court upheld the original injunction for the first family that sued but overturned the statewide injunction, which allowed DFPS to pursue other investigations if it had grounds to do so. At that time, DFPS employees said 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”, which I believe is what Judge Meachum is citing in this ruling. DFPS did resume some investigations, which led to another lawsuit filed on behalf of three families, who were granted a restraining order by a different Travis County judge, Jan Soifer. One of the three plaintiff families in that case is the Briggles, whose investigation has since been closed by DFPS, which I believe means they are no longer party to that suit, though I could be wrong about that. And that, I believe, catches us up. Whew!

From here the usual pattern will be followed. The restraining order is being appealed, and if history is any guide it will be upheld by the Third Court and go from there to SCOTx. In the meantime, there will be a hearing for a permanent injunction, which according to Judge Meachum’s order will be on December 5. SCOTx may or may not get around to weighing in on the restraining order before then. Most likely some other suits similar to these current two will be filed, and perhaps DFPS will publish an update to their requirements to make their investigations less susceptible to these lawsuits. I have no idea how long that process may take or what the new requirements might look like. I don’t think there’s any relevant federal activity that could have an effect, but that may change, and I might be wrong about that. Needless to say, the 2022 election will have an effect as well.

One more thing, from the Chron story:

The state called as a witness James Cantor, a clinical psychologist based in Ontario, Canada, who said his reviews of studies have found that the majority of children with gender dysphoria no longer end up having symptoms of the condition after hitting puberty and instead “tend to realize they are gay or lesbian.”

Most of the studies he cited in a blog post making the same argument were published before 1988. Gender identity disorder did not make an appearance in the nation’s manual of mental disorders until 1980.

The plaintiffs’ attorneys objected to Cantor’s testimony, saying the studies referenced were not of transgender youths but rather “tomboys” or “effeminate” youth. They also pointed to a North Carolina district court opinion that found that Cantor lacked personal experience or expertise treating minors with gender dysphoria and therefore gave his testimony “very little weight.”

“It’s a complete misrepresentation of the science, one that frankly is the basis and foundation for all of Paxton’s opinions, Gov. Abbott’s directive and the department’s actions,” said Omar Gonzalez-Pagan, senior attorney with Lamda Legal. “It’s a fundamental misunderstanding about trans kids because they don’t believe trans kids should exist.”

This is your reminder that the state’s entire case is built on bullshit and lies, and should be laughed out of the courtroom. The Los Angeles Blade has more.

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?

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 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.

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?

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.

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.

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.

Is that statewide injunction against investigations into the families of trans kids in effect?

Ken Paxton wants you to think it isn’t, but it’s not really up to him.

When a judge ruled Friday that Texas could not investigate parents for child abuse simply for providing gender-affirming care, it was immediately clear that the legal fight was far from over.

That same night, Attorney General Ken Paxton filed an appeal and then announced on Twitter that the “Democrat judge’s order permitting child abuse is frozen.”

He said that “[m]uch-needed investigations [will] proceed as they should,” and noted that his “fight will continue up to the Supreme Court.”

Lawyers representing the families of transgender children said they don’t believe the appeal should affect the injunction.

Legal experts say this case falls into a complicated corner of the law until the appeals court weighs in.

[…]

The appeal Paxton filed relies on an argument that would allow for an automatic stay in all trial court proceedings. In a statement, a spokesperson for the Attorney General said that there is “therefore no [temporary injunction] in place until the Third Court reinstates it. Investigations into child abuse may thus continue.”

“It’s up to the court of appeals to decide whether to reinstate the impact of the injunction,” said South Texas College of Law Houston professor Rocky Rhodes. “It’s not automatic, but I think that [the ACLU and Lambda Legal] will have a very strong case to have it reinstated.”

But lawyers have challenged these automatic stays before, claiming the state should not be able to overturn an injunction simply by filing an appeal. Attorney Chad Dunn represented the Texas Democratic Party in a case on mail-in voting in which Paxton made a similar argument.

“That would be an extraordinary rule,” Dunn said. “That is not the rule in federal court or other states that I’m familiar with, that you get an injunction against the state and they can just effectively ignore it until there’s been an appeal completed.”

Dunn said he has seen this argument appear only in recent years, and neither the state’s courts appeals courts or the Texas Supreme Court has definitively affirmed that the state has a right to overturn these injunctions.

“In the cases I’m familiar with, the Court of Appeals has either just glossed over this question or they just say … we’re empowered to issue injunctions, so we’re going to issue the same injunction and keep it in place until such time as we decide the appeal,” he said.

If the Court of Appeals grants similar relief, Rhodes said, that will remain in effect even if the case is appealed to the Texas Supreme Court, as Paxton has said it will be.

See here for the background. The plaintiffs’ lawyers have advised their clients that the injunction is in effect and to not participate in any further investigations, if they happen. DFPS itself issued a statement that says they are “following the law” without specifying what that means, which is entirely the question at hand. The Third Court of Appeals had previously denied Paxton’s appeal of the initial restraining order for wonky legal reasons. It seems likely to me that they will rule that the injunction remains in effect while the matter is being litigated, but it’s not clear to me when such an order from them might be forthcoming. There’s no case information on the Third Court’s website beyond the fact that a notice of appeal has been filed. We’ll just have to wait and see.

Ken Paxton repays the Briggle family for their hospitality

What a scumbag he is.

When the case worker asked to inspect the house, Amber and Adam Briggle first led her to the kitchen. They opened the cabinets to show they were full of food.

They moved on to the dining room. Every Sunday the Briggles and their two kids, now 14 and 9, sit in those chairs for dinner and talk about gymnastics or their new purple hair. It was around the dining room table where, six years earlier, Attorney General Ken Paxton and his wife, Angela, sat with the Briggle family eating steak kabobs and watermelon. But last month, Paxton issued a nonbinding legal opinion that gender-affirming health care for transgender kids, like the Briggles’ son, constitutes child abuse. Shortly after, Gov. Greg Abbott ordered the Texas Department of Family and Protective Services (DFPS) to investigate the parents of trans kids.

The Dallas-area family now says it is under investigation and at risk of losing the kids.

“When we were notified of the allegations, it was as if the wind had been knocked out of us. We wanted to scream and cry, but we had no air,” the couple wrote in a statement approved by their lawyer. “Raising a transgender child in Texas has been one long political emergency.”

Briggle said she learned of the investigation February 28, when she found a sticky note on her desk at the massage studio she owns saying she had missed an urgent private call. She assumed it was from another parent of a trans kid looking for advice. When she called the number, the woman on the line informed her that she was a Child Protective Services investigator, and she was 30 minutes away from the Briggle home.

The next 30 minutes went by in a blur, Briggle said. She managed to reach Adam, and they got family attorney Ian Pittman on the phone. They convinced the investigator to meet them at Briggle’s office. She would schedule another meeting for that Wednesday at the house.

“We told the children that they have the right to not answer questions,” the couple wrote in a statement. “We told them that the government is trying to spy on us even though we have done nothing wrong.”

[…]

In the meantime, families like the Briggles have been working feverishly to secure attorneys who will work pro bono, testimonials from friends and family, and home studies for a “safe folder,” an emergency packet of documents to demonstrate their parenting skills. The Briggles have filed a federal complaint against the state, Adam Briggle said.

“The Texas government has launched an effort to round up transgender children and send them off to a broken, overcrowded, and dysfunctional foster care system,” the Briggles wrote.

Last year, the legislature failed to pass a bill that would have labeled gender-affirming medical care as child abuse. Briggle testified against that bill. The couples say their family has been the subject of death threats and harassment ever since.

The family is terrified of speaking up about the investigation now, they said. But the couple is prepared to flee the state, and they worry that if no parents speak up, other trans kids will also face removal.

Adam is a tenured professor. Briggle owns a business. Both kids have a lot of friends. Leaving Texas would destroy their lives, they said.

“I really think that we need to start a contingency plan of that nature,” Adam said.

“If we have to become political refugees in our own country, then that’s what we do,” Briggle added. “But I don’t know where it’s safe.”

I wrote about the Paxtons’ dinner with the Briggles at the time. I did not believe that the Briggles’ generosity would have any effect on the Paxtons, and I’m sad to have been right about that. I can’t imagine what the Briggle family is going through right now. Just seeing them talk about the possibility of leaving the state is breathtaking, given that Amber Briggle was saying this on the same day that story was published:

Whatever the Briggles decide to do, they’re not the only parents who are thinking of fleeing. I can’t even type things like that without wanting to scream. If we’re lucky, there will be a statewide injunction against this cruel policy as soon as today. But that will be appealed, and who knows what happens after that. We also know that losing in court is not going to stop the Republicans, who are all in on hating transgender people now. I’ve said it many times, they’re going to have to lose elections over this. Like, a lot of elections. That’s not going to be easy. The Briggle family is out there doing their part. We all have to do ours.

This is a good start, if a belated one.

Sixty-five major U.S. companies who do business in Texas are calling on Gov. Greg Abbott to reverse his order requiring the state’s child welfare agency to investigate gender-affirming care for transgender youth as a form of child abuse by their parents.

The companies, including Apple, Dow, Google, Johnson & Johnson, Meta and PayPal, in conjunction with the LGBT advocacy nonprofit Human Rights Campaign took out full-page print and digital advertisements in the Dallas Morning News that state in all capital, bold letters: “Discrimination is bad for business.”

“The recent attempt to criminalize a parent for helping their transgender child access medically necessary, age-appropriate health care in the state of Texas goes against the values of our companies,” they wrote. “This policy creates fear for employees and their families, especially those with transgender children, who might now be faced with choosing to provide the best possible medical care for their children but risk having those children removed by child protective services for doing so.”

So far, there are nine new CPS investigations statewide involving parents who are supporting their children’s medical care, said Patrick Crimmins, spokesperson for the state Department of Families and Protective Services. But advocates and lawyers say even just the fear of an investigation is putting immense stress on Texas families with transgender children.

Good for them, but there are a lot more companies that do business in Texas. Where are they? As that Trib story I linked to above points out, the Republican animosity towards the transgender community (as well as some other social issues) has caused a rift between them and their longtime benefactors in the business world, because they care about homophobia and transphobia and “critical race theory” and voter suppression so much more. When is the business community going to recognize this and start acting accordingly?

As a reminder, this is the system that Abbott and Paxton want to put these children into.

Employees at a state-contracted foster care facility established to help female victims of sex trafficking were instead trafficking the children staying there, state officials said Thursday.

The Bastrop operation, called The Refuge, has served 11 children ages 11 to 17. State officials began receiving reports of sexual abuse at the facility in late January, when a staffer alleged that a former employee had sold nude photos of two young girls and used the money to purchase illegal drugs and alcohol for them.

More accusations were made in the following weeks, and state investigators discovered that several staffers still employed at The Refuge were involved in the criminal activity. In total, there are seven alleged victims and nine alleged perpetrators, state officials said at an emergency court hearing Thursday afternoon.

All of the children were finally removed from the facility on Wednesday. One staff member has been arrested, and additional criminal charges are expected, officials said.

“The most appalling thing about this is the disregard of these children and you had to wait to get eight calls before you took 11 female already-trafficked children out of this trafficking situation,” said U.S. District Judge Janis Jack, who has overseen a decade-long lawsuit over the state’s foster care conditions. “This is a system that remains broken.”

The matter came to light Thursday, after the state Department of Family and Protective Services notified court-appointed monitors of the “urgent situation” at The Refuge. Jack blasted state officials for withholding the information from the monitors for several weeks, and for failing to remove the children after the first reports of abuse.

Emphasis mine. Such a commitment to “protecting” children Abbott and Paxton have. Maybe this should be a bigger story? I’m just saying. The Trib has more.

One more thing:

My family has personal experience with evidence-based gender-affirming health care at Texas Children’s Hospital. An amazing team of professionals lovingly guided us through a process that involved months of discernment with an incredible array of best-in-the-world physicians, social workers and mental health professionals. And our child’s quality of life immediately improved. Everything we did was medically necessary. We cannot imagine the devastation we would feel at being told “our lawyers say we cannot provide the medically necessary health care you desperately need.”

Last week, Texas Children’s announced that it would halt gender-affirming procedures. The hospital leaders should know that this is exactly the result Rep. Matt Krause, Attorney General Ken Paxton and Gov. Greg Abbott hoped would occur with their thinly-veiled circumvention of the democratic process: chaos and fearful reactions.

[…]

Abbott not only used Paxton’s legal opinion but misrepresented it to instruct the state to investigate families. In his letter to Department of Family and Protective Services Commissioner Jaime Masters, Abbott states that the attorney general determined that the gender-affirming health care procedures about which Krause inquired “constitute child abuse under existing Texas law.” Abbott completely ignored the express limitations in Paxton’s opinion. As a former Texas attorney general himself and a former justice on the Texas Supreme Court, it is fair to assume Abbott understands the difference. Frankly, the sheer political expedience of his actions seriously endangering the lives of the very children he should be protecting is beyond reprehensible — it is diabolical.

Finally, the simple truth is that Texas Children’s Hospital has allowed the Abbott/Paxton scheme to work by failing to stand up for the right of physicians (not politicians) to determine the medical standards of care for transgender youth. The hospital explanation was that it made the decision to halt care “to safeguard our healthcare professionals and impacted families from potential criminal legal ramifications.” While it is wrong for politicians in Austin to decide what the medical standard of care should be, it is also wrong for lawyers rather than physicians at the leading clinical and teaching children’s hospital in the world — located in the Texas Medical Center of Houston, literally the apex of medicine — to determine standards of medical care.

More importantly, the hospital has missed this opportunity to stand up for their patients. The hospital has left families like ours out in the cold and dashed the hopes of transgender kids just wanting to be their authentic selves.

Instead of using lawyers to dictate medical standards of care, put them to use in the legal arena fighting for medical independence of physicians and the rights of your patients. Don’t succumb, fight back. File a petition in intervention or an amicus brief in support of the lawsuit filed by the ACLU of Texas and Lambda Legal. Show up. Be courageous. Make the voices of the best medical experts in the world heard on these issues. Your silence is deafening.

See here for the background. Whether we get that statewide injunction or not, I agree with this. Texas Children’s Hospital, the other hospitals that have halted gender affirming care, the physicians who treat trans kids, the Texas Medical Association, all of them and more should be doing their part to fight back. If not now, then when?

Appeals court denies Paxton appeal of gender affirming care order

Good.

A Texas appeals court sided with the parents of a transgender teenager in a ruling Wednesday, rejecting Attorney General Ken Paxton’s efforts to allow a child abuse investigation to proceed.

The ruling will allow a lower court to hold a hearing, scheduled for Friday, where lawyers for the American Civil Liberties Union and Lambda Legal will ask a judge to stop the state from launching child abuse investigations against parents who have obtained gender-affirming care for their transgender children.

“This crisis in Texas is continuing every day, with state leaders weaponizing the Department of Family and Protective Services to investigate families, invade their privacy, and trample on the rights of parents simply for providing the best possible health care for their kids under the guidance of doctors and medical best practices. This appeal was always groundless and DFPS and the courts need to stop this egregious government overreach,” said Brian Klosterboer, an attorney with ACLU of Texas.

[…]

The state has opened at least five child welfare investigations into parents of trans children since Abbott issued his directive on Feb. 22, though the real number may be much higher. The state has declined to provide the number of active investigations, citing the pending litigation.

The ACLU and Lambda Legal have sued on behalf of a state worker who has a trans child and alleges she was put on leave and investigated by CPS after asking questions about the directive.

Last week, state District Judge Amy Clark Meachum granted a temporary restraining order blocking the state from investigating the family. Paxton immediately appealed that ruling, and on Wednesday, the Texas 3rd Court of Appeals ruled that it did not have jurisdiction to proceed.

Meachum also scheduled a hearing for Friday to hear arguments on whether to grant a temporary injunction until trial, and whether it should extend to all parents of transgender children.

See here and here for the background. I found a copy of the opinion here – it either wasn’t findable on the Third Court of Appeals website or they just didn’t have it loaded yet. The case information is here. This was a wonky and technical matter of whether the state could appeal a temporary restraining order at this time – you can just skim it to get the gist. Among other things, it means that if Judge Meachum does issue a statewide injunction following the Friday hearing, this will get appealed again, and I imagine it will be on an express lane to the Supreme Court. How it all might go is anyone’s guess. For now at least, this family has a bit of relief, and I hope every other family in that same terrible position will get the same soon.

Paxton appeals gender affirming care order

Of course he did.

Attorney General Ken Paxton filed for an appeal Thursday after a state judge blocked Texas’ child protection agency from investigating the parents of a transgender teenager who received gender-affirming medical care.

District Judge Amy Clark Meachum had granted a temporary restraining order on Wednesday. It did not stop the agency from opening investigations into other families in similar situations.

Meachum was scheduled to consider issuing a statewide injunction blocking such investigations into all parents of trans children on March 11, but that hearing has been put on hold until an appeals court rules on Paxton’s request.

And U.S. Health and Human Services Secretary Xavier Becerra said his agency is looking into tools that would shield transgender Texans from the state’s attempts to hinder access to gender-affirming care.

“The Texas government’s attacks against transgender youth and those who love and care for them are discriminatory and unconscionable,” he said. “These actions are clearly dangerous to the health of transgender youth in Texas.”

[…]

Becerra released guidance Wednesday that says refusing health care because of gender identity is illegal and that health care providers are not required to disclose information regarding gender-affirming care.

President Joe Biden also released a statement Wednesday condemning Texas’ actions.

“This is government overreach at its worst,” Biden said in a statement. “Like so many anti-transgender attacks proliferating in states across the country, the Governor’s actions callously threaten to harm children and their families just to score political points. These actions are terrifying many families in Texas and beyond. And they must stop.”

See here for the background. This is primarily about preventing Judge Meachum from being able to issue a statewide injunction, since the hearing for that action is on hold pending the appeal. The Third Court is more likely than not to deny Paxton’s appeal, but then he’ll go to the Supreme Court, and who knows how long that could take. And delay is good enough for Paxton and Abbott and their wicked aims.

Texas Children’s Hospital has “paused” hormone-related prescription therapies for gender-affirming care in response to the controversial directive from state leaders to investigate medical treatments for transgender youth as child abuse, according to a statement from the hospital.

“The mission of Texas Children’s Hospital is to create a healthier future for all children, including transgender children, within the bounds of the law,” the statement reads. “After assessing the Attorney General’s and Governor’s actions, Texas Children’s Hospital paused hormone-related prescription therapies for gender-affirming services. This step was taken to safeguard our healthcare professionals and impacted families from potential criminal legal ramifications.”

[…]

Lou Weaver, a transgender man and community advocate for transgender children and adults, said very few facilities offer gender-affirming care for children, and Texas Children’s is among the biggest programs in Texas that offered it.

“This is a truly frightening time for trans youth and their parents and guardians,” he said. “The doors to life-saving health care are literally being shut in their faces.”

UT Southwestern’s children’s hospital in Dallas shut down services for new patients at the end of the last legislative session due to political pressure, Weaver said.

I can’t blame Texas Children’s for not wanting to risk the legal exposure, but this is truly harmful and there’s not a clear endpoint. That harm is also financial for the families involved. I don’t know what the feds can do, but they need to figure it out quickly.

And in what may be the most infuriating but least surprising part of this, the opinion Paxton issued was based on misreading studies and making false claims.

One researcher said Paxton distorted her work for political purposes and that she’s “mortified” her research was included in the opinion.

Alexandra Minna Stern, a professor of history at the University of Michigan, studies the history of forced sterilization in the United States. Paxton’s office drew a parallel between forced sterilization and gender affirmation surgeries for minors. “I’m adamantly opposed to this interpretation and it does not align with my research and the conclusions of my research,” she said.

“If they knew anything about my scholarship more generally, they would know that I am someone whose research demonstrates the harm of the very types of policies they’re trying to enact on marginalized people.”

[…]

In his opinion, Paxton cited the work of Dr. Cecilia Dhejne, a Stockholm-based researcher, to support the idea that gender-affirming health care could be harmful to transgender children.

Dhejne led a 2011 study that found that transgender people who have undergone gender-affirmation surgery have worse mental health outcomes than the general population. Dhejne did not respond to a request for comment. However, in the text of the 2011 study, Dhejne and her team caution specifically against using the study to conclude that gender-affirming surgery is problematic, noting that the study did not compare the mental health outcomes of people before and after gender-affirming surgery.

The study’s “results should not be interpreted such as sex reassignment per se increases morbidity and mortality. Things might have been even worse without sex reassignment,” the study says.

Dhejne and her colleagues wrote instead that the study shows a need for better support for transgender people after they undergo surgery.

Paxton also asserts that there has been a recent “spike” in minors receiving gender-affirming “procedures.” He cited the Society for Evidence Based Gender Medicine, an anti-trans advocacy group.

The link in Paxton’s citation leads to a graph showing an increase in youth referrals to the United Kingdom’s Gender Identity Development Service. That national clinic provides a range of care, including counseling; the number of clinic referrals is not necessarily the number of medical interventions like the legal opinion implies.

Similarly, Paxton’s opinion cited the World Professional Association for Transgender Health and said that transgender people should typically be adults before receiving the listed types of gender-affirming care.

In a statement to the Star-Telegram, WPATH said that Paxton applied the citation too broadly. While WPATH does state in its standards of care that genital surgery should typically wait until a transgender person reaches the age of majority, Paxton’s opinion applied that standard to less-invasive interventions, too, including puberty blockers.

“It’s disheartening to see the Texas Attorney General’s opinion referencing WPATH to bolster an overall argument completely at odds with WPATH guidance,” the organization said in a written statement. “The citation is accurate but does not apply here because the AG’s opinion is arguing against reversible blockers while the cited WPATH content relates to gender affirming surgery.”

There’s a lot more and you should read the rest, but you get the idea. Lying has never bothered Ken Paxton. It’s serving him pretty well right now. The Statesman has more.

Paxton asks Supreme Court to toss that pesky whistleblower lawsuit

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

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

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

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

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

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

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

[…]

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

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

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

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

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

Third Court of Appeals upholds Harris County mask mandate

Savor the win, for it’s off to SCOTx next.

A state appeals court on Thursday upheld a lower-court injunction that allowed Harris County to impose mask requirements despite Gov. Greg Abbott’s executive order banning such mandates.

The Austin-based 3rd Court of Appeals rejected arguments by Abbott and Texas Attorney General Ken Paxton, who claimed state law lets the governor overturn local health mandates imposed to mitigate the spread of a dangerous virus.

Abbott hasn’t budged:Texas parents pleaded for Gov. Abbott to allow mask mandates in schools

“The Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by local governmental entities or officials that contradict his executive orders,” said the opinion, written by Justice Chari Kelly.

The appeals court also said the disaster act does not allow, as Abbott and Paxton argued, the governor to suspend state public health laws that give local leaders the power to impose safety rules during declared emergencies.

“(The disaster act) does not give the governor carte blanche to issue executive orders empowering him to rule the state in any way he wishes during a disaster,” Kelly said in an opinion joined by Chief Justice Darlene Byrne and Justice Gisela Triana. All three justices are Democrats.

[…]

The appeal before the 3rd Court hinged on whether language in the Texas Disaster Act empowered Abbott to ban local rules enacted to protect public health.

Paxton and Abbott argued that the act:

• Designates the governor as “commander in chief” when addressing statewide disasters.

• Says local officials act as the governor’s designated agents during emergencies.

• States that executive orders issued under the act have the “force and effect of law.”

The appeals court, however, said Paxton and Abbott took the act’s provisions out of context.

The disaster law designates the governor as commander in chief of “state agencies, boards and commissions having emergency responsibilities” — not counties, Kelly wrote. In addition, nothing in the law limits the authority of county and local officials to respond to local disasters or public health crises, Kelly said.

“Even a statewide disaster may have distinct and disproportionate impacts in each of the state’s 254 counties and that, as a result, some measures for addressing a disaster in some counties may not be necessary or even appropriate in other counties,” Kelly wrote.

What’s more, she wrote, the disaster act lets the governor suspend “regulatory” laws that pertain to conducting state business. But Abbott sought to suspend a state law that lets local officials set public health rules in emergencies, and that law is not regulatory, the appeals court concluded.

“The Act empowers and recognizes that the Governor may issue statewide disaster declarations and that certain local officials may also issue local disaster declarations,” Kelly wrote.

“Nothing in the Act, however, suggests that these authorities are mutually exclusive,” she added.

As noted, the Third Court upheld a ruling issued in August by a Travis County district court. Note that there’s a second case, involving HISD and some other school districts, that was not part of this appeal. In this case, the three justices made the same points in the opinion that plenty of people, myself included, have been making all along about the Governor’s powers. Those judges are Democrats, and the judges on the Supreme Court are not, so we can’t just expect them to employ such thinking. Maybe they will, you never know, but you sure can’t assume it. For now, at least, the good guys have won. And even if SCOTx reverses this opinion, it’s still the case that Abbott and Paxton, by their own admission, don’t have the power to enforce Abbott’s no-mask mandate. Let’s not forget that.

Third Court rejects Paxton attempt to kill whistleblower lawsuit

Good.

Best mugshot ever

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

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

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

[…]

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

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

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

Appeals court appears skeptical about Paxton’s whistleblower defense

As well they should be.

Best mugshot ever

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

More injunctions against the mask mandate bans

Keep ’em coming.

Concluding that Gov. Greg Abbott exceeded his authority by banning mask mandates in Texas, an Austin judge ruled Friday that school districts in Travis County can enforce face coverings as a COVID-19 precaution.

State District Judge Catherine Mauzy’s order also applied to 19 school districts that represent about 1 million students — including Austin, Dallas, El Paso, Fort Worth and Houston — as well as Austin Community College, which also sued Abbott.

However, Texas Attorney General Ken Paxton quickly appealed, automatically blocking enforcement of Mauzy’s temporary injunction — though the Austin-based 3rd Court of Appeals can be asked to reinstate the judge’s order while Paxton’s challenge proceeds.

In her ruling, Mauzy concluded Abbott’s ban on mandatory masks — contained in a July 29 executive order — was unlawful and exceeded his authority in violation of the Texas Constitution.

Mauzy found that the school officials and parents who challenged Abbott’s order made “a sufficient showing” to establish that Abbott was not authorized to declare “by executive fiat” that school districts are prohibited from requiring masks to be worn.

Without court intervention, Mauzy added, Abbott’s ban leaves school officials unable to mandate masks to control the spread of COVID-19, “which threatens to overwhelm public schools and could result in more extreme measures such as the school closures that have already begun in several Texas school districts.”

In a separate ruling, Mauzy also granted an injunction sought by Harris County to allow a mask mandate to continue for Houston-area school districts, said Christian Menefee, county attorney.

“Gov. Abbott is misusing the Texas Disaster Act to make this pandemic worse,” Menefee said, calling the ruling an important step in reining in the governor.

But in a third challenge, the judge declined to issue a statewide injunction, requested by the Southern Center for Child Advocacy, that would have allowed mask mandates in all Texas school districts. Mauzy’s one-page order gave no reason for the denial.

It’s hard to keep track of all of these, but see here for the original ruling in the Harris County case, and here for the original ruling in the SCCA case; the filing of their lawsuit was noted here. I have so many of these posts, some of which combine stories from multiple lawsuits, so I can’t find (and may not have) a post about the original Austin lawsuit, but the famous SCOTx demurral of the emergency request by Paxton and Abbott to block a TRO was related to the Austin/Travis County lawsuit. I note that the Harris County case and the SCCA case were originally in Judge Jan Soifer’s courtroom, so I am assuming that a bunch of similar lawsuits were combined into one and that’s how they all wound up before Judge Mauzy.

The injunction may be on hold because of the appeal (there’s some fancy legal term for this that I have encountered before but forgotten by now), but the plaintiffs can and surely will ask for it to be reinstated by the Third Court of Appeals. That will force another reckoning with the Supreme Court, thanks to the recent order in the Bexar County case. In a sense all of this is just sound and fury since Abbott and Paxton can’t enforce the mask mandate bans anyway, but the ritual must be observed. I feel like I should get a CLE credit for all of this blogging. HISD Superintendent Millard House’s statement about the ruling is here, and KXAN and the Trib have more.

Stop investigating yourself, you’ll go blind

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

Best mugshot ever

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

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

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

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

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

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

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

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

Another ruling to allow whistleblower lawsuit against Paxton to proceed

So much for all the lawyers to do.

Best mugshot ever

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

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

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

[…]

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

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

[…]

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

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

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

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

City victory in water rights lawsuit upheld

Some good news.

A split Texas appeals court ruled Wednesday that a state law that would have stripped Houston of its interest in an unbuilt water reservoir was unconstitutionally retroactive, siding with a lower court that protected the city’s interests.

Two justices on a three justice panel upheld Houston’s 70% interest in water rights at an unbuilt reservoir on Allens Creek, which has suffered numerous setbacks since permits were first issued decades ago to the city and its partner, the Brazos River Authority. The court said that a law passed by the Texas Legislaturein 2019 to transfer the city’s interests to that partner would have impaired the city’s long-term plans related to the water project and that the partner hasn’t shown an overriding public interest in finishing the project that would overcome those concerns.

Just because the city wasn’t acting with urgency to develop the project doesn’t mean the Legislature had shown an overriding interest in upending previously granted rights through the passage of HB 2846, the court said. For instance, while the Legislature was seemingly acting in the public interest when it moved to strip the city of its rights and force a transfer of interest to the BRA, the justices said that decision failed to show how the beleaguered project would necessarily be completed faster since it had already undergone repeated setbacks and was facing years of work before ground could be broken anyway.

[…]

The city described the majority’s decision as a win with bigger implications for municipalities in the Lone Star State and said the ruling allows the city to avoid the forced sale of its “irreplaceable” surface water rights to the BRA without the option to replace the water.

“This a very important victory for Houston and all Texas cities and towns. Fresh water is an irreplaceable resource and the city has for years carefully planned and acquired scarce and very valuable water rights to ensure that the city, its residents and businesses have sufficient water resources to enable the city to grow and prosper in this century and beyond,” Mayor Sylvester Turner said. “House Bill 2846 punished the city’s foresight and endangered Houston’s and all Texas cities’ water supplies and future growth. No city would have been safe had the bill been allowed to withstand constitutional scrutiny. The city will continue to fight to protect the city’s irreplaceable resources.”

The permits for the project were first granted in 2000, when the Legislature gave the project a deadline for construction to begin by 2018. After Houston and the BRA received a $20 million loan to take on the project together, it was hit with numerous setbacks, leading to an extension of that 2018 deadline by the Legislature that gave them until 2025 to finish the project.

When no progress was made by 2019, lawmakers held legislative hearings and ultimately passed HB 2846.

Houston sued that same year, and the district court granted declaratory relief that the law was unconstitutional, void and unenforceable.

A Brazos River Authority spokesperson said it plans to appeal the appeals court decision.

See here and here for the background. The majority opinion is here, the dissent is here, and the case history is here. Not much for me to add except I hope the city wins the next appeal, too.

Whistleblowers respond to Paxton’s appeal brief

That title is a dry way of saying that they basically accused him of lying in his filing to the 3rd Court of Appeals.

Best mugshot ever

A group of former top aides to Texas Attorney General Ken Paxton reiterated in a court filing this week that they believe Paxton committed crimes while in office, and suggested that Paxton is intentionally mischaracterizing witness testimony in their whistleblower case against him for political reasons.

The aides are taking issue with a brief and a press release issued on June 2 where Paxton’s lawyers asked the 3rd Court of Appeals to throw out the case four aides filed against the state’s top lawyer in which they allege he fired them for reporting his alleged illegal behavior to federal and state authorities. Paxton, who has denied the charges, said he fired aides last year because they had gone “rogue” and made “unsubstantiated claims” against him.

Paxton’s lawyer said in June that in a trial court hearing on March 1, former First Assistant Attorney General Jeff Mateer would not say he specifically saw Paxton commit a crime, but only that he had “potential concerns” about Paxton’s dealings with real estate developer Nate Paul. Paul is a political donor and friend of Paxton who the whistleblowers allege Paxton helped with his legal issues in exchange for personal favors.

Paxton’s lawyers argued that the appeals court should overturn a trial court decision denying the Office of the Attorney General’s plea to dismiss because the court doesn’t have the jurisdiction to hear the case.

But in a new brief filed on Monday by the whistleblowers’ lawyers, they argue Paxton’s lawyers took the exchange they cited out of context to argue Mateer never saw Paxton commit a crime. They said Mateer’s comment was in response to a specific question about whether any employees raised concerns about Paxton’s behavior in June 2020, three months before former employees reported Paxton’s behavior to law enforcement.

“This claim distorts Mateer’s testimony,” the brief states. “In fact, Mateer testified unequivocally that he believed at the time of Appellees’ FBI report—and still believes today—that Paxton committed crimes, including abuse of office and bribery.” They also point out that Mateer signed a letter on Oct. 1, 2020 that alerted the attorney general’s office that the whistleblowers had reported Paxton’s behavior to the FBI, further proving Mateer believed Paxton had violated the law.

[…]

The whistleblowers’ attorneys say the AG’s office did not accurately explain to the appeals court that Mateer’s potential concerns were specifically in response to a question about Paxton and Paul’s relationship in June 2020.

“OAG took even greater license in its [June] press release, predicting victory because its brief shows that Mateer “swore under oath that Paxton committed no actual crimes,” the lawyers wrote in a footnote in the brief. “Given the … OAG’s mischaracterization of what Mateer ‘swore under oath,’ perhaps this portion of OAG’s brief was written for an audience other than the justices of this Court.”

A lawyer in the case told The Texas Tribune they believed the press release was written for Paxton’s supporters and Texas voters, rather than to make a legal argument.

See here for the previous update. That last paragraph is both shocking and completely on brand. A press release is of course not the same thing as a legal filing, but in general judges tend to take a dim view of lawyers misrepresenting the facts. If what the plaintiffs are saying here is accurate, I would think that the Third Court justices might have some sharp words for Team Paxton. And yes, as noted in the story, that press release came out just before P Bush officially launched his challenge against Paxton. Totally coincidental, I’m sure.

The lawyers asked the 3rd Court of Appeals to consider this appeal without hearing oral arguments. If the court decides to hear arguments, the aides requested it happen as quickly as possible.

The four former aides also laid out in detail in the filing the specific instances where they believe Paxton broke the law.

We’re familiar with the outline of the charges the plaintiffs have made against Paxton, but go ahead and read on if you want to remind yourself. The reasons behind Paxton’s bizarre, corrupt actions are still unclear – one assumes that financial reward was part of it, and if the allegations about Paxton’s affair are true that likely was a factor as well – but there’s no good way to spin them if they happened as alleged. It’s hardly bold to say that Ken Paxton has no integrity, but it’s still appalling to see the things he is said to have done. And if the Third Court agrees that oral arguments aren’t needed, that would be pretty amazing as well.

Paxton appeals to 3rd Court to dismiss whistleblower lawsuit

Next stop on the train.

Best mugshot ever

In an 85-page brief filed Tuesday with the 3rd Court of Appeals, Paxton’s lawyers argue that under state law, a whistleblower must believe someone has broken the law, but the aides only reported that “they expected laws might be violated.” As a result, they argue, the court should overturn a trial court decision denying the Office of the Attorney General’s plea to dismiss because the court doesn’t have the jurisdiction to hear the case. The lawyers have repeatedly argued Paxton cannot be sued under the Whistleblower Act because he is not a public employee.

This appellate brief was made public hours before Texas Land Commissioner George P. Bush is expected to announce at an event that he will run against Paxton for attorney general. Bush has made the allegations of Paxton’s former aides and separate felony securities fraud charges against Paxton a line of attack as he prepares to announce his run.

In particular, the brief states that at a March 1 hearing on the case, one of the whistleblowers who is not a plaintiff in the suit, former First Assistant Attorney General Jeff Mateer, would not specifically state that he saw Paxton commit a crime.

“Instead, he explained he ‘had potential concerns,’ and that he and his colleagues concluded that ‘had they gone down this path, would be in a position to assist and/or cover up with what … would be a crime,’” the brief states.

“… Speculative concerns about potential future illegal activity do not fall within the [Whistleblower] Act’s narrow scope,” it states.

Mateer did not immediately respond to a request for comment. In a statement, Carlos Soltero, the attorney representing appellee David Maxwell, said the four aides are “far from ‘rogue.'”

“They did exactly what Texans would hope their public servants would do,” Soltero said. “They reported corruption to the FBI and the Texas Rangers. Now, after Paxton lost his first appeal, lost at the trial court again, he brings yet another appeal to avoid testifying like he has something to hide.”

[…]

The brief argues the plaintiffs have not provided specific proof of a bribe by Paxton or Paul, but only speculated they “might” have had business dealings.

“None of these allegations of perfectly lawful conduct come close to making out a claim for bribery,” the brief states.

See here for the update. What Paxton is claiming is that these attorneys, his former top assistants, that he fired do not have any grounds to sue him under the Whistleblower Act because they didn’t have proof that he was committing a crime at the time. They only had serious concerns that he was committing a crime, and that’s not good enough. I guess the average news consumer doesn’t have the wherewithal to understand the finer points of the legal arguments being made – in the end, if he wins he’s just going to claim he was being railroaded by a bunch of whiny liberal losers anyway – but if one tries to parse the lawyerese, it sure doesn’t paint him in the most flattering light. This isn’t a full-throated assertion of innocence, it’s a “well, actually, you can’t prove any of that, so I win”. You play the hand you’re dealt, I suppose. We’ll see what the Third Court makes of it.

Senate approves pointless appeals court

There’s more than one way to attack Democratic appellate court justices.

Sen. Joan Huffman

The Texas Senate passed a bill Wednesday to create a new statewide court of appeals that would hear cases that have statewide significance — including ones that challenge state laws, the constitution or when the state or its agencies are sued.

Currently, when such cases go to the intermediate appellate level, they are mostly heard by the 3rd Court of Appeals based in Austin. That court’s judges are elected by voters in Democratic-leaning Travis County. Senate Bill 1529, though, would send the cases to the new appellate court whose judges would be elected by voters statewide — an electorate that skews Republican.

Some of the state’s highest profile cases could be affected by this proposed court. Bill author Sen. Joan Huffman, R-Houston, said that recent lawsuits surrounding Gov. Greg Abbott’s pandemic emergency orders are examples of types of litigation the proposed court would have jurisdiction over.

Critics say the proposed new court is a Republican attempt to yank jurisdiction of these cases from Democrats.

The Austin-based 3rd Court of Appeals has five Democrats and only one Republican. Currently, all statewide elected judges are Republican, including on the Texas Supreme Court — and it’s likely the proposed court would also be all Republican.

“Since the [3rd Court of Appeals] deals with issues facing state government, it’s a thorn in the Republican Party side,” Mark P. Jones, a political science fellow at Rice University, said in an interview. “And so by transitioning that by moving that to a statewide election where Republicans have the advantage, they would be able to, most likely, flip from being a Democratic majority… to a [5-0] Republican advantage.”

Huffman maintains that she wrote the bill to promote consistency — not for partisan reasons.

“The new court has five justices elected statewide so that all Texans have a voice in electing those who decide cases of statewide significance,” she said from the Senate floor Tuesday. “It’s important for judges deciding cases of statewide importance to be familiar with specialized jurisprudence to provide consistent rulings for state litigants.”

[…]

Democrats on Tuesday raised constitutional concerns related to this bill, asking if the Legislature has the authority to create an appellate court with statewide jurisdiction, overlapping the current district system. Huffman maintains that it does.

“We’ll have to see you in court on this one,” Sen. Nathan Johnson, D-Dallas, said.

Darlene Byrne, chief justice on the 3rd Court of Appeals and a Democrat, said in an interview she thinks the bill is “bad policy and bad for statewide jurisprudence.”

Byrne also said the new structure would promote large campaigns.

“I don’t know of a Supreme Court race that costs less than a million dollars per candidate,” she said. “So this new statewide court is going to be mega-big donors infusing big money to influence the judiciary. And I thought we were trying to get away from that — but apparently not.”

Linda Thomas, a former Republican chief justice of the Texas Fifth District Court of Appeals, said she believed the bill was unnecessary.

“As a retired judge, I think it’s a little disingenuous, and in some ways, insulting to the sitting justices of this state to indicate that they are not capable of handling complex business cases,” Thomas said.

I noted this in passing in my initial post about appellate court redistricting, the bill for which has since been withdrawn for the time being. I tend to agree with Justice Thomas, and I also think that insult was a feature and not a bug. Sen. Huffman’s justification for this new court is ridiculous on its face, because all of the lawsuits in question start out in a district court, with a judge that was elected by local voters in far lesser numbers than for appellate court justices. That’s not exactly conducive to “consistent rulings for state litigants”. Why not go whole hog and create an entirely separate court system for “cases of statewide importance” (whatever that means, and I’ll bet that very topic becomes a contentious point of appeals in itself) so as to avoid local yokel judges making insufficiently erudite rulings? One could argue that Sen. Huffman is actually making a back-handed case for ending the election of judges in the first place. At least that would be a more honest approach to this.

I have no idea what the prospects are for this in the House, but I do feel confident that there will be litigation if and when this does pass. That lawsuit would eventually come before a district court of appeals, as one presumes it would be halted from taking effect pending the litigation, before ultimately being decided by the Supreme Court. I’ll leave it to you to sort out where that all lands on the Irony-o-Meter.

Appellate court redistricting bill withdrawn

I had a post all ready to go yesterday with more on the bill to redistrict the appellate courts, and then this happened on Thursday night:

This is not the end of it – there will be at least one special session on legislative redistricting, after all – but whatever does happen, it won’t be in this session. So the post that I had queued up for Friday morning became out of date, and so here we are. The original post is beneath the fold because it’s still worth reading, so click on for more. Whatever made this delay happen, I’m glad for it. Hopefully we will get a better bill out of this in the end, but we can’t take that for granted. The Chron story from Friday about this is here.

(more…)

Let’s get rid of Democratic appellate court justices

If that’s the Legislature’s goal, then this would be an effective way of accomplishing it.

A Texas Senate committee [heard] public comment Thursday on a controversial proposal to consolidate the state’s 14 intermediate appellate courts into just seven, a move opponents have criticized as gerrymandering but that supporters say will make the courts more efficient and cure knotty court splits.

A committee substitute to S.B. 11 proposes dramatic changes to the organization of the state’s appellate districts: It would combine Houston’s two appellate courts, merge the Dallas and Austin districts together, lasso Waco and Eastland into a division with Texarkana and Fort Worth, and move two San Antonio justices to Midland in a district that would span roughly 500 miles — from Kendall County just southwest of Austin to the state’s western edge and include El Paso — among other changes.

The state’s current number and location of appellate courts largely reflects the state’s demographics, economy and travel conditions of the late 19th and early 20th centuries,
Hunton Andrews Kurth LLP partner Scott Brister wrote in a 2003 Houston Bar Association article.

Brister, who formerly served as a Texas Supreme Court justice and chief justice of the Fourteenth Court of Appeals in Houston, told Law360 the districts need to be updated and consolidated.

“I just think 14 is too many,” he said. “They’re not located where all the people and the cases are.”

Yet opponents of the consolidation plan say it is blatant gerrymandering, and the worst instance of it they’ve seen in the Texas judiciary.

Elsa Alcala, a former justice on the First Court of Appeals in Houston and Texas’ Court of Criminal Appeals, took to Twitter to call out the plan, writing “This has nothing to do with justice and everything to do with electing Republicans to the bench.”

Since the 2018 general election, a wave of Democratic justices have ousted Republican from Texas appellate benches in record numbers, largely concentrated in urban population centers.

Alcala told Law360 that in the past the Legislature has changed jurisdictions one county at a time, but lawmakers have never proposed completely eradicating certain appellate courts like the proposed committee substitute bill does.

“This is the most significant and blatant change I’ve ever seen,” she said.

S.B. 11 originally called for a realignment of five counties that are currently under the jurisdiction of two appellate courts outside of the Houston district to eliminate overlapping jurisdiction between multiple courts.

Details for the new bill were leaked and spread on social media Tuesday, but the bill’s text [hadn’t] yet been made public. Law360 has reviewed a map detailing the new appellate districts as well as a bill summary and a table explaining how the 80 Texas justices would be distributed among the new districts.

According to the bill summary, consolidating the appellate districts would balance a “highly unbalanced” workload across the courts, an issue the Texas judiciary has dealt with for years through a docket equalization program that transfers cases when needed. The summary cites workload data showing that, between 2015 and 2019, the Eighth Court of Appeals in El Paso received an average of 79 appeals per justice compared to 158 appeals per justice in the Third Court of Appeals in Austin.

[…]

During her time on the First Court of Appeals, which has nine justices, Alcala said she would frequently review opinions handed down by her colleagues to make sure she didn’t have any qualms about their rulings. But on a court with 21 justices, it would be impossible to review all those decisions, she said.

Lawyers are also concerned that larger benches could cause issues at the ballot box.

Alcala said there’s already an issue with the public being able to make informed choices during elections about the various judges on the ballot. Expanding the court’s jurisdictions would mean more judges for the public to inform themselves about before voting.

Brister acknowledged that under the committee’s substitute, voting would look different. He would be concerned if he were a judge in Texarkana on the state’s eastern border with Arkansas, for example, because under the new district alignment, there’s a good chance voters from the more populous Fort Worth would control outcomes in the district and knock some small-town judges off the bench.

Christopher Kratovil, managing partner of Dykema Gossett PLLC’s Dallas office, told Law360 he can see both sides of the consolidation argument but believes the committee’s substitute isn’t the proper way to redistrict the state.

“I do think there are some good-faith efficiency arguments for reducing the number of intermediate appellate courts in the state,” he said. “That said, this is not based on efficiency. If we’re being honest about this, it is a partisan gerrymandered map to return control of the majority of the state intermediate appellate courts to the Republican party.”

Other attorneys, like solo appellate practitioner Chad Ruback, are upset that information about the committee substitute bill hasn’t been released ahead of Thursday’s public hearing. The original version of S.B. 11 is currently attached to agenda materials for the meeting.

“That doesn’t give the appellate judiciary — or appellate lawyers who regularly practice in front of them — much time to analyze the potential ramifications of the proposed changes in advance of the hearing,” he said. “That looks awfully suspicious.”

See here for the background. Not being transparent about the process or giving anyone the time to review the bill in question is on brand for the Republicans. To give you a sense of what this looks like, here’s a picture from the story:

This Twitter thread from Dylan Drummond gives you the data:

Maybe the new Fifth Circuit, with Dallas and Travis Counties, or the Third, with Bexar County and South Texas, would lean Democratic. I’d have to do a more in depth analysis. Katie Buehler, the reporter of the story linked above, attended the hearing and reported that Sen. Nathan Johnson said it would be a 5-2 split. Whatever the case, I guarantee you that someone with strong Republican credentials has already done such an analysis, and these districts are drawn in a maximally beneficial way for Republicans. What would even be the point from their perspective if that wasn’t the case?

You’ve read many bloviations from me over the years about why calls to change the way we select judges from the current system of partisan elections to something else were mostly a smokescreen to disguise complaints about the fact that Democrats were now winning many of those elections. It has never escaped my notice that we only began seeing those calls for change after the 2008 election, when Dems broke through in Harris County, and it moved to DefCon 1 following the 2018 election. If nothing else, I thank Sen. Joan Huffman for putting the lie to the idea that the motivating factor behind those calls for change was a fairer or more equitable or more merit-based system for picking judges, or that “taking politics out of the system” had anything to do with it. No, it is exactly what I thought it was from the beginning, a means to ensure that as many judges are Republican as possible. There may well be legitimate merits to rethinking the appellate court system in Texas – I’m not an appellate lawyer, I have no idea – but it’s crystal clear that this ain’t it. This is a full employment program for Republicans who want to be judges. That’s what we’ll get if this bill passes.

Which it has now done from the Senate committee, on a partisan 3-2 vote. For a report from the committee hearing, where multiple appellate court justices from both parties testified against SB11, see Law360 and The Texas Lawbook. This is easily the biggest redistricting matter going on right now it’s getting very little attention so far. (The DMN has a story, but it’s subscriber-only, which limits the impact.) Let’s not let this slip through without being noticed.

UPDATE: The Chron now has a story as well, and it contains this knee-slapper:

Sen. Nathan Johnson, D-Dallas, also an attorney, asked Huffman if she took partisanship into consideration when making the maps.

“Some people think this is going to result in five Republican courts and two Democratic courts,” Johnson said. “Do you think that would accurately represent the partisan breakdown of this state?”

Huffman said she did not consider political makeup in drawing the maps and didn’t know how her plan might alter that.

Yeah, that’s obvious bullshit. Anyone with a list of counties per appellate district and access to recent state election results could tell you in five minutes what the likely orientation of each district would look like. Joan Huffman isn’t stupid, but if that’s what she claims then she thinks the rest of us are.

One more thing:

Another bill introduced by Huffman would create a statewide Court of Appeals that would have exclusive jurisdiction over civil cases of statewide significance filed by or against state agencies or officials. The justices on the court, seated in Austin, would be elected on a statewide ballot. No Democrat has won statewide office since 1994.

That bill was met with similar opposition and accusations of partisan motivation. It, too, was referred to the full Senate on a 3-2 party line vote.

This appears to be SB1529, and I heard about it yesterday for the first time. I have no idea what problem (real, imagined, or political) this is intended to solve. Any thoughts from the lawyers out there?

HISD Board wins again in court

They’re still a thing, and Mike Morath can’t do anything about it right now.

The Houston ISD school board earned another win Friday in its effort to stave off Texas Education Commissioner Mike Morath’s plan to replace it with an appointed board, this time prevailing in a procedural battle before the state Supreme Court.

In an 8-1 decision, the Texas Supreme Court ruled that a state appellate court had the legal right to temporarily halt Morath’s move to oust HISD’s school board amid an ongoing lawsuit.

The ruling is not final victory for HISD in its fight with Morath. It merely means that the education commissioner cannot immediately move to replace trustees with a board of managers, which could vote to drop the lawsuit. The HISD board’s case remains pending, with an appeal related to the central issues of the case pending before the Texas Supreme Court.

Lawyers representing Morath and the Texas Education Agency argued that a state law precluded the courts from stopping state administrative actions — such as stripping power from school board members and appointing replacements — even if a trial court issues a temporary injunction. A Travis County judge overseeing HISD’s lawsuit issued such an injunction in January 2020.

An appellate court partially agreed with the TEA’s position, but the judges also found that they separately had the power to halt an administrative action under the state’s rules of appellate procedure, which they did in HISD’s case.

Lawyers for Morath and TEA disagreed and asked the state Supreme Court to overturn that finding, but the eight justices sided with the lower court.

See here and here for the background. This is a procedural ruling, which just means that the TEA does not get to take over HISD while the appeal of the ruling that said that the TEA did not properly follow the law while attempting to do the takeover is being litigated. HISD still has to win that appeal, and then have that upheld by the Supreme Court, to get out of the current situation. In the meantime, there’s the Harold Dutton bill that would make all of this moot, though it too would surely be subject to a lawsuit. I dunno, maybe the TEA should try to negotiate a settlement of some kind if they lose again, so we can all get on with our lives? Just a thought.

Paxton whistleblower lawsuit can proceed

First step in a long road.

Best mugshot ever

The 3rd Court of Appeals on Friday denied a petition from Texas Attorney General Ken Paxton’s office to stop a trial court hearing in a suit filed by whistleblowers who claim they were wrongfully terminated after reporting Paxton to law enforcement for alleged bribery and other public corruption.

Attorneys for the office did not immediately respond to a request for comment, but they are likely to appeal the decision to the Texas Supreme Court.

“We were pleased, but not surprised, by the 3rd Court’s ruling,” said Carlos Soltero, who represents David Maxwell, the agency’s former director of law enforcement who was fired in November. “This brings us closer to being able to move forward and present our case on the merits, which we are looking forward to doing.”

[…]

A Travis County trial court on March 1 heard a motion by Paxton’s attorneys to dismiss the case. When the judge left the issue under advisement and continued on to entertain an injunction hearing in the case, Paxton’s attorneys appealed, arguing she needed to first rule on the motion to dismiss before proceeding. The appellate court temporarily stayed all further action in the case; the stay was lifted with Friday’s order.

We know about the whistleblower lawsuit. Paxton’s response to the charges against him are that the Office of the Attorney General is not subject to the state’s whistleblower laws and thus this lawsuit is moot and should be dismissed. Travis County judge Amy Clark Meachum denied the motion to dismiss the lawsuit on March 1, and when she attempted to proceed to the next phase of the suit, which involved hearing from the plaintiffs, Paxton’s lawyers objected:

Bill Helfand, an outside lawyer hired to represent the agency in the whistleblower case, argued that the motion to dismiss raised questions about the appropriateness of the lawsuit that needed to be addressed before any other matters could be considered.

Meachum noted that she had made no ruling that could be appealed, but Helfand insisted that “diving into the substantive issues” of the case was no different from issuing a ruling denying the motion to dismiss, allowing him to file an appeal that should have ended matters until the 3rd Court of Appeals could rule.

Meachum disagreed and opened the second hearing, where for the first time a court heard from two of those who accused Paxton of misconduct.

The first was Jeff Mateer, the former second-ranking executive at the attorney general’s office who resigned Oct. 2, two days after joining six other top executives in telling FBI agents that he believed Paxton was misusing the powers of his office to help Austin businessman Nate Paul.

Mateer, a lawyer, said he stood by his accusations against Paxton, but when he was asked to discuss them, he was interrupted by repeated objections from Helfand, who said providing details would violate attorney-client privilege and get into internal office deliberations that could not be discussed in court.

Mateer also testified that the two executives who want to be reinstated to their jobs — David Maxwell, former director of the agency’s Law Enforcement Division, and Ryan Vassar, former deputy attorney general for legal counsel — had performed their jobs well when he ran the office.

The court also heard from Vassar, who was fired in November and testified that he had received no criticism of his job performance or reprimands before speaking to FBI agents last year. Vassar was in the early stages of his testimony and was set to resume Tuesday morning.

The Third Court of Appeals initially ruled for Paxton and halted any further testimony until it issued a decision. This was the decision, which will now be appealed to the Supreme Court. Remember how every little thing in the securities fraud case against Paxton got appealed all the way up to the Court of Criminal Appeals before anything could be done, which is why that case is more than five years old now? Yeah, that’s the likely situation here as well. The FBI can’t arrest his ass fast enough.

Dutton files bill to enable HISD takeover

Whatever else you may say, this is true to his beliefs.

Rep. Harold Dutton

Texas House Public Education Chairman Harold Dutton Jr. filed a bill Tuesday that, if it passes and withstands any legal challenge, would virtually guarantee the ouster of Houston ISD’s school board.

The Houston Democrat’s bill aims to clear the way for Texas Education Commissioner Mike Morath to strip power from all nine elected HISD trustees and replace them with a state-appointed board — an effort mired in an ongoing legal battle that has stretched more than a year.

[…]

Dutton’s bill seeks to remedy each issue raised by the Third Court of Appeals, while also explicitly stating that Morath’s decisions on school district sanctions cannot be litigated in courts.

Some parts of the bill would apply retroactively or punish HISD for past performance — which could prompt legal challenges.

For example, the bill states that Texas’ education commissioner must replace the school board in any district with a campus that has not received a passing grade under the state’s academic accountability system since 2010-11 and received more than five failing grades during that time. HISD’s Wheatley High meets that criteria.

“I don’t know if they can do that or not, but it certainly leads to an argument that it’s retroactive legislation,” said Kevin O’Hanlon, a lawyer representing HISD in its lawsuit against Morath.

See here for the last update on the takeover litigation. As noted, the issues that the court ruled on were that the TEA did not follow the law correctly in its takeover bid. I’ve no idea if Rep. Dutton’s retroactive fix will remedy that, but I feel confident we’ll find out if it gets that far. As noted, the original bill that led to the HISD takeover was a Dutton bill, as he has been a longtime critic of HISD for the poor performance of schools in hid district (including Wheatley) and others in predominantly black neighborhoods. It was very much an issue in his 2020 primary race, and I have no doubt it will arise again in 2022.

At least one of Rep. Dutton’s colleagues is not with him on this:

Rep. Wu notes that the TEA could simply take over Wheatley if they wanted to, as it is the sole school that is causing HISD to trigger the takeover law, but that is not what they chose. I have no idea if this bill will make it through, but Dutton is the Chair of the House Public Education Committee, so it will certainly get a hearing.

TEA appeals HISD takeover ruling to Supreme Court

One way or the other, this should get a resolution.

Lawyers representing the Texas Education Agency filed an appeal Wednesday asking the state Supreme Court to overturn a temporary injunction that has slowed Education Commissioner Mike Morath’s plans to strip power from all nine Houston ISD school board members.

The filing comes nearly two months after the Third District Court of Appeals, in a 2-1 decision, ruled that Morath did not follow laws and procedures that would give him the authority to temporarily replace HISD’s school board with a state-appointed board.

TEA pledged in late December 2020 to appeal the ruling to the Texas Supreme Court. If the state’s highest court overturns the injunction, TEA leaders could install a new board that could vote to end HISD’s lawsuit.

[…]

In their filing Wednesday, state lawyers representing the state argued the Third District Court of Appeals erred in its interpretation of laws and regulations on all three fronts. The lawyers also claimed HISD should not be able to sue the state over an administrative matter.

“This case is of immediate importance to HISD students,” Assistant Solicitor General Kyle Highful wrote in the appeal. “And the court of appeals’ misinterpretations of the law endanger TEA’s future efforts to assist failing schools.”

Each of the three issues considered by the Third District Court of Appeals largely fell along technical lines.

See here for the previous update. The ruling in favor of HISD was bipartisan, so this isn’t an R-versus-D issue in the way some other recent lawsuits have been. No idea how long this may take, so just keep on keeping on until we know more.

Appellate court redistricting

We’ll need to keep an eye on this.

Justice Bonnie Sudderth

Justices on the state’s 14 intermediate appellate courts are talking—some are concerned—about a pair of bills filed in the Texas Legislature that propose redistricting the courts’ boundaries.

House Bill 339 by Rep. Phil King, R-Weatherford, and Senate Bill 11 by Sen. Joan Huffman, R-Houston, currently only propose minor tweaks to the Fifth, Sixth and 12th Courts of Appeal to remove their overlapping jurisdictions over five rural Texas counties.

However, multiple sources told Texas Lawyer that the current versions are only “placeholders” or “shell bills” that would change during the legislative session to make bigger changes to the appellate court boundaries.

King and Huffman each didn’t respond to phone calls seeking comment.

But the uncertainty about what the bills will wind up doing is leading to concern among justices.

“I can’t speak for 80 justices across the state, but I’d say there are certainly justices who are talking about it,” said Chief Justice Bonnie Sudderth of Fort Worth’s Second Court of Appeals, who is chairwoman of the Council of Chief Justices. ”What is there to talk about, until we see what it is?”

David Slayton, administrative director of the Texas Office of Court Administration, said that staff for the House and Senate committees that handle bills about the justice system have requested data from his office about the courts’ workloads and the number of appeals that are transferred between appellate courts.

“I think they are looking at it for those reasons,” he explained, adding that his office isn’t taking any position about redistricting. “We haven’t seen a plan. It’s hard to read or think of how it would affect the administration of justice, without seeing a plan.”

He added that the idea to redistrict the appellate court lines did not come from inside of the Texas judiciary.

“There’s some proposals out there from groups like Texans for Lawsuit Reform that reduce the number of appellate courts,” said Slayton.

[…]

That plan proposes:

  • First District: Merger of current First and 14th Courts of Appeal in Houston with 18 justices.
  • Second District: Merger of Third, Fourth and 13th Courts of Appeal in Austin, San Antonio and Corpus Christi with 19 justices.
  • Third District: Merger of Fifth and Sixth Courts of Appeal in Dallas and Texarkana, but without four counties that overlap in another district, with 16 justices.
  • Fourth District: Merger of Second, Seventh, Eighth and 11th Courts of Appeal in Fort Worth, Amarillo, El Paso and Eastland, with 16 justices.
  • Fifth District: Merger of Ninth, 10th and 12th Courts of Appeal in Beaumont, Waco and Tyler, with 11 justices.

The other proposals in the paper would create different mixes based on mergers of existing appellate districts.

The paper in question is here, and TLR’s priorities for the appellate courts are here. It should go without saying that Texans for Lawsuit Reform is a villain, and while some of their ideas in this instance may have merit, everything they do should be viewed with extreme suspicion.

George Christian, senior counsel with the Texas Civil Justice League, another tort reform advocacy group, said that the current districts aren’t in line with modern Texas. Redrawing the boundaries could make the judiciary more efficient. Yet he acknowledged redistricting involves politics and stirs up intense debate.

In recent elections, appellate courts in Travis, Harris and Dallas counties were swept by Democratic candidates. The discussion about redistricting the appellate courts now may lead to questions.

“There is a very legitimate question people will ask,” Christian said. “Why the sudden interest in the appellate courts, now that a lot of Democrats are winning those elections?”

I think we know the answer to that question. I’ve raised this point before, and it’s just another thing we have to watch out for. In theory, this could be done during the regular session, as these court districts are not based on Census data and don’t have a mandate to have equal sizes. We’ll know when and if HB339 and SB11 get committee hearings.

SCOTx allows Inforwars lawsuits to proceed

Good.

The Texas Supreme Court on Friday rejected, without comment, conspiracy theorist Alex Jones’ attempt to toss out four defamation lawsuits by parents of children killed at Sandy Hook Elementary in 2012.

The parents sued in Travis County, where Jones and his InfoWars website are based, arguing that they were defamed and suffered emotional distress after InfoWars broadcasts disputed the authenticity of the school shooting and the news coverage that followed.

Twenty young children and six adults died in the mass shooting at the Sandy Hook school in Newtown, Connecticut.

Friday’s action by the Supreme Court upheld rulings by two lower courts that had allowed the lawsuits to continue.

The state’s highest civil court also gave the green light to another defamation lawsuit against InfoWars and reporter Kit Daniels by a man mistakenly identified as a suspect in the 2018 shooting at a high school in Parkland, Florida.

[…]

Friday’s announcement by the Supreme Court noted that two members, Justices Jeff Boyd and John Devine, would have granted Jones’ petition for review in the Pozner lawsuit, but the court order provided no reasons for their dissent.

In briefs to the Supreme Court, lawyers for Jones argued that the InfoWars host was engaging in protected speech because he was addressing matters of public concern.

“The pursuit of so-called ‘conspiracy theories’ concerning controversial government activities has been a part and parcel of American political discourse since our Founding, and it is protected by the First Amendment,” they told the court in a brief for the Pozner and De La Rosa case.

Jones also argued that state libel laws required any harmful speech to be directed at specific family members, but the Sandy Hook families were not named in three InfoWars reports in 2017.

But a lawyer for the Sandy Hook families argued that Jones didn’t merely say the school shooting was staged by the government, he also generally accused family members of being actors to help sell a supposed coverup and exploit the event to attack gun rights.

As a result, Jones and InfoWars accused family members of collusion in a hoax “relating to the murder of their son … for nefarious purposes,” lawyer Mark Bankston told the court.

Jones also was reckless in publishing information that was so improbable that no reasonable publisher would have done likewise without substantial confirmation, Bankston argued.

“Mr. Jones’ fantasy about a shadowy government conspiracy to murder first-graders and then exploit the event with the help of the media and actors is the very definition of ‘improbable,'” he wrote.

The lawsuits are by the parents of two of the children that were murdered at Sandy Hook. You never know what can happen, but Jones’ record in defending himself so far isn’t great – he not only lost at the Third Court of Appeals earlier in the year, he was ordered to pay court costs for the frivolity of his appeal. He deserves to lose and to have the full weight of the consequences of his actions come down on him. Law and Crime has more.

HISD Superintendent search is back on

For now, anyway.

Houston ISD trustees kicked off their long-delayed search for a permanent leader Monday, choosing three superintendent search firms to interview later this week.

The initial move comes as the state’s largest district seeks to fill a position that Interim Superintendent Grenita Lathan has held since March 2018, when Richard Carranza abruptly left to lead New York City public schools. HISD’s search has been delayed because of the looming threat of state sanctions, a state order that temporarily halted the first search and lingering uncertainty about the trustees’ ability to hire a quality candidate, among other issues.

Trustees are scheduled to reconvene Wednesday and possibly Thursday to select from the three firms: Austin-based JG Consulting; Illinois-based Hazard, Young, Attea & Associates; and Nebraska-based McPherson & Jacobson. Board members opted against interviewing GR Recruiting and the Texas Association of School Boards’ Executive Search Services.

“I prefer to interview three and give those three more time with us,” Trustee Dani Hernandez said.

HISD trustees have not released a proposed timeline for completing the search. School boards typically take multiple months to choose a lone finalist.

As the story notes, the previous search was halted by conservator Doris Delaney, who cited the investigation into allegations that five HISD Trustees had violated the Open Meetings Act when they voted to bring back Abe Saavedra as interim Superintendent and force out Grenita Lathan. The recent Third Court of Appeals ruling that affirmed an injunction against the TEA takeover stated that TEA officials failed to follow their own procedures in conducting that investigation, which sort of brings us full circle.

The injunction did not explicitly say HISD trustees could resume the superintendent search, leading to uncertainty about the board’s authority. However, trustees are interpreting the injunction as giving them the power to restart their search, and TEA officials have not moved to halt the effort.

“Because of the turmoil, it’s been hard to know what has been the long-term vision (for HISD),” Trustee Holly Maria Flynn Vilaseca said in November. “This process will help provide space to hear that, as well as the vision of others, as we do what’s best for kids.”

The potential for a bigger mess if the Supreme Court overturns the lower court rulings is very present, but one way or the other, the district deserves the opportunity to hire a new leader. Let’s just hope this results in less chaos and not more.

TEA still barred from taking over HISD

Still in a state of limbo.

Texas is still temporarily barred from taking over Houston Independent School District, a state appellate court ruled Wednesday, upholding a lower court’s order.

In a 2-1 ruling, the Texas Third Court of Appeals upheld a temporary injunction that stops the Texas Education Agency from replacing the elected school board of its largest district with an appointed board of managers. The appeals court ruling sends the case back to the lower court that in January blocked the state’s takeover effort.

The appellate judges said Houston ISD had a “probable right to relief” since the TEA did not follow proper procedure and acted outside its authority as it moved to sanction the district. It also ordered the state to “pay all costs related to this appeal.”

The TEA plans to appeal the ruling to the Texas Supreme Court. “While the Agency is disappointed with the split ruling from the 3rd Court of Appeals, this is only a temporary setback,” the agency said in a statement. “We are confident that the Texas Supreme Court will uphold the Commissioner’s legally-authorized actions to improve the educational outcomes for the 200,000-plus public school students of Houston.”

[…]

[T]he appellate court’s ruling Wednesday said Texas’ “proposed actions are not authorized by the Education Code.” The opinion stated that the state did not have the right to appoint a conservator to oversee the entire school district in 2019, force Houston ISD to suspend its search for a new superintendent, or impose sanctions based on an investigation, among other things.

The opinion was written by Judge Gisela Triana, who was joined by Judge Jeff Rose in the ruling. In a dissenting opinion, Judge Thomas Baker wrote that Texas is authorized to take over Houston ISD, the injunction should be removed and the district’s claims should be dismissed.

See here and here for the background, and here for a copy of the opinion. The Chron story goes into the opinion in some more detail.

To start, HISD’s lawyers argued Wheatley High School did not trigger a state law requiring the school’s closure or the board’s ouster after the Fifth Ward campus received its seventh straight failing grade in 2019. While the law is intended to punish districts with campuses receiving failing grades in multiple consecutive years, the justices found that the TEA failed to take a technical step — ordering HISD to submit a campus turnaround plan for Wheatley — that it says was required under the statute.

The two justices also ruled that the TEA incorrectly interpreted a state law that says Morath can replace the school board in any district that has had a state-appointed conservator for more than two years.

State officials appointed conservator Doris Delaney to oversee long-struggling Kashmere High School in 2016, then clarified that her authority extended to district-level support in 2019. TEA officials argued Delaney’s presence since 2016 met the criteria for triggering the state law, but the two justices ruled that only her time as a district-level conservator counted toward the two-year requirement, which thus hasn’t yet been met.

Finally, the two justices found that TEA officials failed to follow their own procedures related to a special accreditation investigation, which Morath cited as a third reason for replacing HISD’s board.

For what it’s worth, the “affirm” opinion came from a Democratic justice (Triana) and a Republican justice (Rose), while it was a Democratic justice (Baker) who voted to overturn the district court opinion. I don’t know when this might be resolved – the appeal to the Supreme Court is of the injunction, while the case itself was sent back to the district court – but until there is a final ruling that says the TEA can install its Board of Managers, I’m going to operate on the assumption that there will be HISD Trustee elections this year. I guess there would be regardless, but at least for now those elections mean a bit more, since the Board of Trustees is still running things. The Press has more.

Followup omnibus Election Day post

Wanted to clear up some loose ends from the late night/early morning post and add a couple of things I’d missed the first time around. I’ll have a longer “thoughts and reactions” post probably tomorrow.

– The district results from last night appear to be the same this morning, which means: No Congressional flips, Dems flip SBOE5 and SD19, Dems flip HD134 but lose HD132, for a net one seat gain the the Senate and zero seats in the House. I don’t know how many people would have bet on no net changes to Congress and the State House.

– One other place where Dems made gains was the Courts of Appeals. Dems won the Chief Justice seats on the Third (anchored in Travis and Williamson counties) and Fourth (anchored in Bexar but containing many counties) Courts of Appeals, plus one bench on the First Court (anchored in Harris, won by Veronica Rivas-Molloy) and three on the Fifth Court (Dallas/Collin, mostly). Dems fell short on three other benches, including the Chief Justice for the 14th Court, though the other result on the First Court was really close – Amparo Guerra trails Terry Adams by 0.12%, or about 3K votes out of over 2.25 million ballots. The key to Rivas-Molloy’s win was her margin of victory in Harris County – she won Harris by 133K votes, while Guerra won Harris by 114K, Jane Robinson (Chief Justice 14th Court) won Harris by 104K, and Tamika Craft (14th Court) won Harris by 90K. With Galveston, Brazoria, and Chambers County all delivering big for the Republicans, that big lead that Rivas-Molloy got in Harris was enough to withstand the assault.

– Final turnout was 1,649,457, which was 67.84%. That fell short of the loftier projections, but it’s still over 300K more votes than were cast in 2016. The new Election Night returns format at harrisvotes.com does not give the full turnout breakdown by vote type, but the PDF they sent out, which you can see here, does have it. The breakdown: 174,753 mail ballots, 1,272,319 in person early ballots, 202,835 Election Day ballots. Note that these are unofficial and un-canvassed numbers, and will change by some amount when the vote is certified, as some late overseas and military ballots arrive and some provisional ballots are cured.

– Another way to put this: 10.6% of all ballots were mail, 77.1% were early in person, and 12.3% were cast on Election Day. Just the early in person votes is a higher percentage of “before Election Day” tallies than any previous year. Will this be a new normal, at least for high-turnout even-year elections? I have no idea. Those extra days of early voting, plus all of the sense of urgency, surely contributed to that total. I don’t know that we’ll match this level going forward, but it won’t surprise me if the standard is now more than 80% of all votes are cast before Election Day (again, in even-year elections; who knows what will happen in the odd years).

– For what it’s worth, the closest countywide race was decided by about 76K votes; the next closest by about 90K, and the rest over over 100K. What that means is that if somehow all 127K of those votes cast at drive-through locations during the early voting period were suddenly thrown out, it’s highly unlikely to affect any of those races. I suppose it could tip a close non-countywide race like HD135, and it could reduce Veronica Rivas-Molloy’s margin in Harris County to the point that she’d lose her seat on the First Court of Appeals. I can’t see that happening, but I wanted to state this for the record anyway.

I’ll have more thoughts tomorrow.

UPDATE: The SOS Election Night Returns site now shows Amparo Guerra leading by about 1,500 votes, or 0.06 points, in the First Court of Appeals, Place 5 race. Not sure where the late votes came from, but they helped her, and they helped Jane Robinson, who is still trailing but by less than 5,000 votes, or 0.18 points.