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Legal matters

New Mexico sues its “abortion sanctuary cities”

Good.

New Mexico’s top prosecutor on Monday asked the state’s highest court to overturn abortion bans imposed by conservative local governments in the Democratic-run state where the procedure remains legal after Roe v. Wade was struck down.

The move comes after the New Mexico cities of Hobbs, Clovis and two surrounding counties bordering Texas passed ordinances in recent months to restrict abortion clinics and access to abortion pills.

New Mexico Attorney General Raul Torrez filed an extraordinary writ in New Mexico Supreme Court to block the ordinances which he said were based on flawed interpretations of 19th century federal regulations on abortion medication.

“This is not Texas. Our State Constitution does not allow cities, counties or private citizens to restrict women’s reproductive rights,” Torrez said in a statement.

[…]

New Mexico’s largest cities of Las Cruces and Albuquerque have become regional destinations for women seeking abortions since the U.S. Supreme Court in June ended the nationwide constitutional right to the procedure.

Located on New Mexico’s eastern plains, Clovis and Hobbs do not have abortion clinics but approved ordinances to stop providers locating there to serve patients from Republican-controlled Texas, one of the first states to impose a near-total ban on abortion.

In direct response, New Mexico Democrats have drafted legislation to prevent cities from overriding state laws guaranteeing womens’ rights to reproductive healthcare. The legislation is due to be debated this month and has a strong chance of passing the Democratic-controlled state legislature.

See here for some background, and here for a reminder that New Mexico has been a regional access point for abortion for some time now.

More details here.

It’s not clear how soon the New Mexico Supreme Court could decide to take up the issue. Torrez said he hopes his petition to the Supreme Court will inspire a quick response within weeks or months — avoiding the potentially yearslong process of pursuing a civil lawsuit.

The filing targets Roosevelt and Lea counties and the cities of Hobbs and Clovis — all on the eastern edge of the state near Texas, where most abortion procedures are banned.

Clovis and Lea County officials declined to comment Monday, citing pending litigation. Officials could not immediately be reached in Hobbs and Roosevelt County.

Prosecutors say abortion ordinances approved in November by an all-male city council in Hobbs and in early January by Roosevelt County define “abortion clinic” in broad terms, encompassing any building or facility beyond a hospital where an abortion procedure is performed — or where an abortion-inducing drug is dispensed, distributed or ingested.

Torrez warned Roosevelt County’s abortion ordinance in particular gives private citizens the power to sue anyone they suspect of violated the ordinance and pursue damages of up to $100,000 per violation.

“The threat of ruinous liability under the law operates to chill New Mexicans from exercising their right to choose whether to terminate a pregnancy and health care providers from providing lawful medical services,” the attorney general wrote in his petition to the state Supreme Court.

In 2021, the Democrat-led Legislature passed a measure to repeal a dormant 1969 statute that outlawed most abortion procedures, ensuring access to abortion in the aftermath of the U.S. Supreme Court’s decision last year that overturned Roe v. Wade.

Gov. Michelle Lujan Grisham said she wants to see legislation that would codify the right to an abortion across the state.

Lawmakers have already proposed measures that would prohibit local governments from placing restrictions on abortion access — and call for putting in place protections for doctors and patients.

During her reelection campaign last year, Lujan Grisham cast herself as a staunch defender of access to abortion procedures. She has called a local abortion ordinance an “affront to the rights and personal autonomy of every woman in Hobbs and southeastern New Mexico.”

In June, the governor signed an executive order that prohibited cooperation with other states that might interfere with abortion access in New Mexico, declining to carry out any future arrest warrants from other states related to anti-abortion provisions.

The order also prohibited most New Mexico state employees from assisting other states in investigating or seeking sanctions against local abortion providers.

She followed up in August with another executive order that pledged $10 million to build a clinic that would provide abortion and other pregnancy care in Southern New Mexico.

Not much for me to add here other than I wish Attorney General Torrez good luck. This is clearly the right approach to take, and I hope the New Mexico legislature follows up as well. I look forward to the day when the state of Texas doesn’t make it necessary for them to do all this extra stuff. The Albuquerque Journal has more.

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

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

The only criminal involved

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

HISD in TEA limbo

No one knows how long this might take.

Houston ISD is in limbo as the Texas Education Agency weighs how to proceed with a possible takeover of the state’s largest school system allowed under a recent Texas Supreme Court ruling.

The court lifted an injunction on Jan. 13 that had halted Education Commissioner Mike Morath’s 2019 move to take over the HISD school board, after allegations of trustee misconduct and repeated failing accountability ratings at Phillis Wheatley High School.

The state agency is now tight-lipped about the possible next steps, saying only that the “TEA continues to review the Supreme Court’s decision in order to determine next steps that best support the students, teachers, parents, and school community of the Houston Independent School District.”

While the state Supreme Court kicked the decision back to the lower courts, the Texas Education Agency could take action independent of the court. Experts say a few possibilities could play out: the TEA could appoint a conservator, replace the elected board with a board of managers, or allow the district to remain autonomous.

Even when well-intended, takeover efforts cause a great deal of chaos for parents, students and teachers, said Cathy Mincberg, president and CEO for the Center for the Reform of School Systems, a Houston-based nonprofit that provides consulting services for school boards.

“My impression when you look at takeovers across the country, they have not yielded the results that people wanted,” Mincberg said. “They swoop in trying to make a huge change in the system, and sometimes that’s just not possible.”

Mincberg, who has worked with school districts during takeovers, describes them as resulting in “highly confusing times.”

[…]

Attorney Christopher L. Tritico has represented three Houston-area districts — North Forest, Beaumont and La Marque — through their takeovers and due process hearings, which he described as “not a winning proposition.”

HISD will have a right to due process hearings, per state code, a move Tritico anticipates it will take. However, that hearing will be held by the TEA and overseen by a hearing officer the commissioner selects, making it difficult for school districts to get a ruling in their favor, he said.

Action may come soon, Tritico said.

“The time they are trying to buy is over,” he said. “I expect to move forward fairly soon now. There is nothing really standing in the way of (the TEA) moving forward in what the commissioner wants to do.”

[…]

In Houston ISD’s case, some legal and education experts raised the question of whether its still appropriate for the state to attempt a takeover. They say the issues that triggered a takeover — Wheatley’s failing accountability grades and board dysfunction — are now dated after the case has been deliberated in the courts for the last four years.

Since the initial announcement of a takeover, and the following lawsuits, Wheatley has increased its accountability grades to a passing score, and most of the board has been replaced.

Mincberg, president and CEO for The Center for the Reform of School Systems, said the threat of takeover gave the issues the public attention they deserved, and resulted in the board members being voted out.

“To me the Houston (ISD) problem got fixed,” Mincberg said. “The board members who were doing things that the TEA had trouble with were turned out and the district has become a lot more stable.”

See here for the background. As you know, I am of the same mind as Cathy Mincberg. I’m not even sure what the TEA would try to accomplish with a takeover. It seems very unlikely that they would be able to achieve any measurable improvement that wouldn’t have happened anyway. That’s assuming that the takeover would be about tangible results and not political aims. It’s hard to say at this point, and won’t be any clearer until the TEA says or does something. Until then, we wait.

The Chron drops a big Hotze story

Despite the headline, I didn’t find a whole lot of new details of interest here. Most of the new stuff consists of the various unhinged things that Hotze has been saying about elections and how everyone is covering up massive fraud and are out to get him. I don’t need a big story to know that he’s a paranoid power-hungry sociopath, but maybe some other people did; this assumes that most people will read what he claims and correctly conclude that he’s a liar and a grifter, which is at best an iffy proposition. Be that as it may, there are a couple of points of interest here.

More than two years after Steven Hotze bankrolled a private voter fraud investigation that led to an armed confrontation with an innocent repairman, the Houston doctor was back in court earlier this month reiterating claims that Harris County Democrats are engaged in a massive election conspiracy.

Hotze, a Republican megadonor and fierce supporter of the debunked theory that Democrats stole the 2020 presidential election, faces felony charges related to the episode and separately is being sued by the repairman. His lawyers this month accused the Democrat-led District Attorney’s office of retaliating against him for exposing the election-rigging, even though no substantive evidence of such a scheme has ever emerged.

The criminal case against Hotze, who runs a lucrative health clinic in Katy and a vitamin retail business, isn’t likely to go to trial anytime soon in the county’s overburdened court system; Hotze faces charges of aggravated assault with a deadly weapon and unlawful restraint, as does Mark Aguirre, the investigator Hotze hired.

But a Houston Chronicle examination of documents in the civil proceeding reveals new details about the bizarre October 2020 attack – one that became a nationally known example of how an election fraud theory could put an unsuspecting civilian in danger.

The documents include extensive comments from that civilian, a Mexican immigrant named David Lopez who has worked fixing air conditioning systems in Houston for more than five years. He said he continues to fear for his life ever since Aguirre allegedly crashed his SUV into his box truck and pointed a gun at him, all under the false pretense that Lopez’s truck contained hundreds of thousands of fraudulent ballots.

“I am afraid because the people who did this to me are very powerful. I have no power,” Lopez said. “I do not know why they attacked me. These people did not find what they were looking for so I am afraid they will attack me again. I don’t know what they are looking for.”

The documents also show that Hotze and his attorneys continue to insist that Lopez could have been a main perpetrator of voter fraud and that he received payments from Harris County Democratic officials. “We’ve got the goods,” Hotze said in a 2022 deposition. “It’s so complicated I can’t – I can’t comment on it right now, but we do.”

[…]

Ever since news of the attack on Lopez became public in December 2020, the details of its origins have been murky. In a news conference around the same time, Hotze claimed that he had paid 20 to 30 investigators a “proprietary” amount of money to look into claims of voter fraud in Harris County and that he knew nothing of their specific activities. He said he paid them through the Liberty Center for God and Country – but for years his lawyers refused to disclose the group’s financials.

Now, the documents made available as part of the civil lawsuit against Hotze, including a tax return for the Liberty Center and a deposition that forced him to answer questions under oath, offer more clues.

According to the Liberty Center’s 2020 tax documents, the nonprofit collected more than $800,000 that year and spent it on “lawsuits to defend the constitutionally protected right of individuals to attend religious worship services, to protect the right of all businesses to stay open, and to ensure that elections in Texas were and are conducted in accordance with the Texas Election Code.”

The first two activities likely refer to Hotze’s lawsuits against mask mandates and other COVID-19 pandemic public health measures. The document also specifies that $379,000 went to “legal services,” while $342,000 went to “investigation services.”

In the deposition, Hotze said he decided to start funding investigations into voter fraud when Aguirre, a former Houston police officer, approached him in 2020. He said he only paid Aguirre, but knew of two other investigators who participated in the probe – Charles Marler, a former FBI agent, and Mark Stephens, also a former Houston cop.

Aguirre received more than $250,000 from the Liberty Center for his efforts, court records show. But Hotze said he never sought much information about how Aguirre used the money. “He would contact me periodically and say, we have got people looking around, seeing what’s going on,” Hotze said in the deposition. “You know, it was somewhat nebulous.”

All Hotze knew, he said, was that Aguirre had apparently discovered that undocumented Hispanic children were filling out hundreds of thousands of phony ballots in locations across the county to swing the 2020 election results in favor of the Democrats.

“From what he told me, it appeared that he was on a hot trail,” Hotze said of Aguirre, who had been fired from the Houston Police Department in 2003 before he became a private investigator.

Aguirre and the other investigators approached the Houston police and local prosecutors with their findings, but law enforcement agencies were skeptical. The investigators took the lack of interest as a sign that authorities were in on the scheme.

“Election fraud is seemingly the only crime whose very existence is denied because of the difficulty and refusal to investigate the allegations,” Stephens wrote in a document obtained by the Chronicle. “In Harris County, it may well be that political expediency is valued far greater than public pressure to prosecute election fraud.”

That 84-page report alleged that a witness overheard a Democratic political staffer bragging about the ability to “harvest 700,000 illegal ballots” in 2019. Another witness later told the private investigators that she’d been approached at a grocery store and offered $50 gift cards to fill out the ballots, the report said.

It’s still unclear how the investigators decided that Lopez could have been involved. His name does not come up in Stephens’ report, which is dated October 16, 2020 – just days before the confrontation between Aguirre and Lopez. Hotze also said in the deposition and in previous public statements that he’d never heard of Lopez or Aguirre’s plans to target him.

See here and here for some background. I truly don’t know how anyone can read these claims and not conclude that this guy is a raving loon, but we live in strange times. He ranges from wildly implausible to literally impossible, with a generous helping of racism and paranoia for extra flavor. Further down in the story you see how utterly indifferent he is to the effect the attack had on David Lopez. All I can say from that is that if Steven Hotze is an example of what a dominant strain of Christianity is today, it’s no wonder so many people are calling themselves “unaffiliated” these days.

The main bummer in all this is that Hotze’s criminal trial is not likely to happen anytime soon, a consequence of the backlog in the criminal courts. There’s an irony there, since the same DA that Hotze claims is out to get him is given a lot of the blame for that backlog. And of course one of Hotze’s assertions in the civil case against him is that it should wait until the criminal case is resolved, so that delay serves him well. That said, the judge in the civil case doesn’t seem too inclined to cut him any slack, so maybe we’ll see some action in the not-too-distant future. In the meantime, always remember that Steven Hotze is one of the worst people in Houston, and he’s been that way for decades. If, and hopefully when, he finally pays a price for that, it will have been a very long time coming.

Paxton sued over his deranged ballot access opinion

Good.

The only criminal involved

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

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

[…]

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

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

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

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

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

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

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

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

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

SCOTx removes injunction blocking TEA takeover of HISD

I don’t know what happens next, but there’s a lot more of this to play out.

The Texas Supreme Court cleared the way Friday for the state to potentially take control of the Houston Independent School District, which state education officials say has been plagued by mismanagement and low academic performance at one of its high schools.

Texas Education Agency Commissioner Mike Morath first moved to take over the district’s school board in 2019 in response to allegations of misconduct by trustees and years of low performance at Phillis Wheatley High School.

Houston ISD sued and, in 2020, a Travis County district judge halted Morath’s plan by granting a temporary injunction. The injunction was upheld by an appeals court, but the TEA took the case to the state’s highest court, where the agency’s lawyers argued last year that a 2021 law — which went into effect after the case was first taken to court — allows for a state takeover.

The Texas Supreme Court sided with TEA on Friday and threw out the injunction, saying it isn’t appropriate under the new law. The decision could allow TEA to put in place new school board members, who could then vote to end the lawsuit.

TEA told The Texas Tribune that it is reviewing the court decision. The agency didn’t immediately respond to questions about whether it has plans to install a new school board right away.

The Texas Supreme Court also remanded the yearslong case back to a trial court.

Houston ISD’s lawyers have already said they would welcome returning to a trial court so the temporary injunction can be considered under the updated law, adding that the district has been ready to make a case for a permanent injunction since 2020.

Houston ISD Superintendent Millard House II said in a press release Friday that the district’s legal team is reviewing the court’s ruling. He also touted the school district’s recent improvements, including at Phillis Whitley High School. The historic school received a passing grade last year from TEA — like a majority of the district’s schools — for the first time in nearly a decade, prompting a celebration at the school.

“There is still much more work to be done, but we are excited about the progress we have made as a district and are looking forward to the work ahead,” House said in the release.

Judith Cruz’s time as a Houston ISD trustee and as the school board’s president has been consumed by this fight. She was elected as a trustee shortly before Morath’s takeover attempt, and her term as president ended Thursday, the night before the Texas Supreme Court’s decision.

Hours after the ruling, she told the Tribune that it’s still too early to determine whether or how TEA would implement a takeover — as well as how district officials would respond to such a change. She said she hopes any potential changes would cause the least amount of disruption to students in the district. Houston ISD trustees will continue to serve as elected representatives for their community, she said.

“Whether elected or appointed, the focus should always be the children,” Cruz said.

Houston ISD trustee Daniela Hernandez, the board’s current president, said the community has generally supported elected representatives instead of appointed ones, citing the pushback that TEA saw from local parents when the state agency first attempted the takeover.

She added that both the board and the school district have changed for the better since 2019.

“We have been in an upward trajectory, and we can keep on improving,” Hernandez said.

See here for the most recent update. The Chron adds some details.

The takeover case has been long in the making. Education Commissioner Mike Morath first made moves to take over the district’s school board in 2019 after allegations of misconduct by trustees and Phillis Wheatley High School received failing accountability grades.The following year, HISD sued and a Travis County district judge provided the district some relief by granting a temporary injunction, bringing the Texas Education Agency’s plan to a halt. An appeals court upheld the injunction, but the TEA took the case to the Texas Supreme Court.

The justices heard arguments from both TEA and HISD in October over whether Morath had the authority to appoint a board of managers. The state argued that he does under a bipartisan law, enacted in September 2021, known as Senate Bill 1365, that gives the education commissioner authority to appoint a board of managers based on a conservator appointment that lasts for at least two years. The law became effective after the case was first taken to court.

The state appointed Doris Delaney to be a conservator for Kashmere High School due to its low academic performance in 2016.

HISD’s counsel argued that wasn’t enough to count under the law. The purpose of a campus conservator is to help make an improvement and Kashmere High School now has a passing rating, HISD’s lawyers said in October.

The latest Supreme Court opinion says that the school district failed to show that the TEA’s actions would violate the law.

“Because Houston ISD failed to show that the Commissioner’s planned actions would violate the amended law, the Court vacated the temporary order and remanded the case for the parties to reconsider their arguments in light of intervening changes to the law and facts,” according to the case summary.

The court’s opinion is here; I have not yet read it. One point I made in that last update is that seven of the nine Trustees that were on the Board at the time of the TEA directive in 2019 are now gone; Cruz and Hernandez replaced two of the members that the TEA had cited in their open meetings investigation. Replacing the Board now would be largely taking out trustees who had nothing to do with the original problems, and the one school whose then-failing grade was the fulcrum for the TEA is now passing. Whatever you think of the takeover idea or the conditions under which it was imposed, things are very different now and it just feels wrong to me to impose this now. I assume that will be the argument that HISD makes when the case is remanded back to the district court. I also presume that the TEA will wait until that court holds a hearing before taking any action. We’ll see. Reform Austin and the Press have more.

SCOTx to decide if ERCOT can be sued

Big decision to come.

Lawyers argued before the Texas Supreme Court on Monday over whether the state’s power grid operator should be protected from lawsuits, a question that has become especially important after the deadly February 2021 freeze.

Individuals and insurance companies have filed lawsuits against the Electric Reliability Council of Texas and power generators since the storm, which left millions of Texans without power in bitterly cold temperatures and hundreds of people dead after electricity was cut in large portions of the state. How those cases proceed will depend on what the Supreme Court decides in the coming weeks or months.

Lawyers for the ERCOT — the nonprofit that manages the state grid — argued Monday that it should receive the same “sovereign immunity” that largely shields government agencies from civil suits.

Because ERCOT is empowered by the state to fulfill a public function and is overseen by a state agency — the Public Utility Commission of Texas — ERCOT should not be held liable, they argued, saying legal claims against ERCOT should instead be the responsibility of the PUC.

ERCOT “has no function other than what the state assigned,” attorney Wallace Jefferson said. “It has no autonomy from the state. … It has no private interest. Its interest is in furthering the public’s interest in a reliable grid. The state controls its bylaws. And the state sets the fee that funds the organization.”

The opposing argument from attorneys in two separate cases was that giving ERCOT such immunity was inappropriate.

Attorneys for Panda Power Funds, a Dallas-area private equity firm that develops and operates power facilities, and CPS Energy, San Antonio’s energy utility, argued that just because ERCOT is regulated by a government entity doesn’t make it part of Texas government.

CPS Energy attorney Harriet O’Neill said the state Legislature has the power to make ERCOT explicitly part of the government, “but despite many opportunities, including after the winter storm, the Legislature has never conferred government status on ERCOT, which it knows how to do.”

Supreme Court Justice Jeff Boyd offered an analogy to explain the lawyers’ arguments: Imagine the state Legislature decided that all the yellow stripes on highways needed to be repainted red. If the Texas Department of Transportation did the work and was accused of doing it wrong, it would be protected from lawsuits.

But if the Legislature instead told TxDOT to authorize another entity to do the work and TxDOT set the prices and dictated how to paint the stripes, would the contractor then be considered a government entity?

See here, here, and here for some background. Note that the original Panda Power lawsuit was filed in 2019, well before the infamous freeze, and is over their claim that ERCOT intentionally manipulated projections of energy demand to encourage new power plant construction. I think Justice Boyd’s analogy is a good one and I can see the merit in either side. On balance, though, I think we overextend the principle of sovereign immunity in this state, and as such I’m rooting for the plaintiffs. But this could go either way. We ought to know in a few months.

Lawsuit filed to keep The Former Guy off the 2024 ballot

Good luck with that.

Former president Donald Trump is facing a legal challenge to his 2024 bid for the presidency from a fellow Republican.

John Anthony Castro, an attorney from Texas and long-shot candidate for president in 2024, filed the lawsuit in federal court on Friday arguing that Trump was constitutionally ineligible to hold office under Section 3 of the 14th Amendment.

Known as the “Disqualification Clause,” the section prohibits anyone who engaged in “insurrection or rebellion” against the United States from holding “any office, civil or military, under the United States.” Castro is arguing that Trump’s involvement in the January 6th insurrection should disqualify him from holding public office again.

“The framers of Section 3 of the 14th Amendment intended the constitutional provision to be both self-executing and to provide a cause of action,” Castro, who’s representing himself, wrote in the complaint. “More specifically, the Union sought to punish the insurrectionary Confederacy by making their ability to hold public office unconstitutional.”

The Disqualification Clause mostly sat dormant since 1869 until last fall, when a New Mexico judge ousted Cowboys for Trump founder Couy Griffin from his position on the Otero County Commission for breaching the Capitol complex on Jan. 6.

Several advocacy groups, including Citizens for Responsibility and Ethics in Washington (CREW), have vowed to pursue similar legal action against Trump during his 2024 run.

“The evidence that Trump engaged in insurrection is overwhelming,” CREW President Noah Bookbinder wrote in a letter to the former president on Nov. 3, before he declared his candidacy. “We are ready, willing and able to take action to make sure the Constitution is upheld and Trump is prevented from holding office.”

Castro was among the giant herd of candidates who ran in the CD06 special election in 2021. He won 5.51% of the vote, which was probably in the top half of performers. I saw another story about this that described him as a “long shot candidate”, and I’d say that’s accurate. He filed this lawsuit in Florida, and ironically drew the Trump-toadiest judge out there, Aileen Cannon; he says he plans to disqualify her from hearing the case, which checks out. He also noted that the advocacy groups that intend to file their own lawsuits will do so later in the year, and he wanted to get out ahead of things. I don’t expect anything to happen with this lawsuit, but it ought to be fun to watch regardless. Bloomberg has more.

Texas clinics begin compliance with that wingnut anti-birth control court order

Infuriating but expected.

Texas teens will now need their parents’ permission to get birth control at federally funded clinics, following a court ruling late last month.

These clinics, funded through a program called Title X, provide free, confidential contraception to anyone regardless of age, income or immigration status; before this ruling, Title X was one of the only ways teens in Texas could obtain birth control without parental consent.

U.S. District Judge Matthew Kacsmaryk ruled in December that the program violates parents’ rights and state and federal law. The U.S. Department of Health and Human Services has asked the court to reconsider that decision.

But in the meantime, Texas’ Title X administrator, Every Body Texas, has advised its 156 clinics to require parental consent for minors “out of an abundance of caution” as it awaits further guidance from HHS.

“We hope that as the case proceeds, we are able to revoke this guidance and continue to provide minors in Texas the sexual and reproductive care they need and deserve with or without parental consent,” said Stephanie LeBleu, acting Title X project director at Every Body Texas.

Minors can still access testing and treatment for sexually transmitted infections, pregnancy tests, emergency contraception, condoms and counseling without parental consent, LeBleu said.

[…]

The case was brought by Jonathan Mitchell, the former Texas solicitor general who masterminded the state’s ban on abortions after about six weeks of pregnancy. Mitchell is representing Alexander Deanda, a father of three daughters.

Deanda is raising his daughters “in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage,” according to the complaint.

Neither Deanda nor his daughters have sought services at a Title X clinic, per the complaint. But Kacsmaryk ruled that the program violates Deanda’s rights under the Texas Family Code and the Due Process Clause of the 14th Amendment, denying him the “fundamental right to control and direct the upbringing of his minor children.”

See here and here for the background. Of the many annoying things about this is the obvious-even-to-a-non-lawyer-like-me question of standing. As in, how exactly is this guy injured in any way by the existence of this policy? My daughters have never sought services at a Title X clinic either. Am they now injured because they would have to get my permission to get birth control there? I know I’m asking for a rational answer for an irrational ruling, but I don’t get it.

And speaking of harms, this story came out a few hours after the previous one.

In Sabine County, pine trees outnumber the people. To commute between Pineland and Hemphill, the two towns that anchor the county, residents drive down a road that winds through a national forest. The towns are dotted with churches that loom large in daily community life. Bible scriptures are printed on plaques in local stores and even in Gilder’s office.

Research has shown access to contraception and comprehensive sex education prevents unplanned pregnancies. But for sexually active teens trying not to get pregnant in Sabine County, it’s hard to access either.

Sex education in Texas is taught amid tight parameters and bureaucratic strings. Texas schools have to offer health class at the middle school level, but parents must opt their children in to any lessons about sexual health. And when teachers do touch on sex education, state law requires them to stress abstinence as the preferred choice before marriage.

Even if teens in this region want contraception, it’s nearly impossible to get without parental consent. In small towns like Hemphill and Pineland, parents have eyes and ears everywhere, making teens reluctant to go to the local Brookshire Brothers or dollar store to purchase condoms. They could go to a family planning clinic, which provides contraception at little to no cost, but only clinics funded through the federal Title X program do not require parental permission — and a federal judge in Texas ruled last month that the program violates parents’ rights and state and federal law.

As Every Body Texas, the nonprofit group that is the state’s Title X administrator, awaits guidance from the U.S. Department of Health and Human Services on how to proceed, it informed Texas providers this week to require parental consent out of precaution.

Today, family planning programs are few and far between, thanks to funding cuts by the Texas Legislature in 2011. No family planning clinic exists in Sabine County. To get to the nearest one, teens in the region must travel to an adjacent county.

Meanwhile, Texas has one of the highest teen birth rates in the country. And in 2020, Sabine County’s teen birth rate was three times the statewide average. Nearly 7% of Sabine County teenage girls between the ages of 15 and 19 gave birth that year, compared with about 2% statewide.

You know where those parents don’t have eyes and ears? All the places where their teenage children are having unsafe sex and getting pregnant as a result. Funny how that works.

Bell County to sue over Killeen’s marijuana ordinance

Something like this was surely inevitable.

Bell County commissioners, along with the district attorney, are determined to settle the question of whether Killeen’s Proposition A is lawful, making the governing body the first in Texas to sue one of its own cities over decriminalization of misdemeanor possession of marijuana.

“Basically, the discussion was going on in consideration of the ordinance that had been passed by the City Council of Killeen and the actions of the result of that particular vote,” Bell County District Attorney Henry Garza told the Herald. “What you saw (on Thursday) was really the beginning of getting this particular question before a court: What is the effect of a local municipal ordinance when it comes into conflict with state law?”

In a unanimous vote on Thursday, Bell County commissioners agreed to file a lawsuit against Killeen over the city’s adoption of Proposition A, the ballot measure that was approved by voters in November to decriminalize marijuana in Killeen.

“The county commissioners voted to direct the county attorney and (me) to get involved in the beginning to get that question answered,” Garza said. “That is the only way to get it into court to begin a legal action.”

None of the other Texas cities where decriminalization initiatives have been approved — Elgin, Denton, San Marcos and Austin — has faced litigation. But in San Marcos, Hays County District Attorney Wes Mau has asked for the Texas attorney general’s opinion on that city’s decriminalization ordinance.

“The good news is the vast majority of the law has actually been researched not only by me and the county attorney, (but) the city attorney in Harker Heights had the opportunity to review the matter legally and so has the city attorney in Killeen,” Garza said.

Opponents of Prop A, including Garza, say it conflicts with state law — where low amounts marijuana is still a misdemeanor — and therefore should not be allowed in individual cities.

It is not clear when the lawsuit will be filed.

“We will plan accordingly,” Garza said.

He and County Attorney Jim Nichols met with Commissioners Bobby Whitson, John Driver, Bill Schumann and Russell Schneider in executive session for an hour on Thursday. County Judge David Blackburn joined the meeting remotely, and Schumann chaired the meeting.

After 10 people spoke and each commissioner offered their opinions on Proposition A, they voted 5-0 on an “authorization to litigate.”

“The Bell County attorney is authorized to file suit against the city of Killeen and its agents to enforce Texas Local Government Code section 370.003 by seeking declaratory relief in district court against the city of Killeen’s actions as unconstitutional; and seeking injunctive relief in district court against the city of Killeen from enforcing either the special order or ordinance; and seeking injunctive relief against the city of Killeen from punishing police officers for enforcing marijuana laws under the Health and Safety Code, Penal Code, and Code of Criminal Procedure,” according to the authorization.

The decision allows Nichols to seek declaratory relief “authorizing peace officers licensed by the state of Texas to fully enforce marijuana laws as it is their duty to prevent and suppress crime under Section 2.13 of the Texas Code of Criminal Procedure.”

See here, here, and here for some background. Activists in Harker Heights, which is also in Bell County, are planning to force another vote on the issue, though that may wind up being moot, depending on how this goes. I don’t know how this will play out in the courts – I’m not optimistic for the Ground Game Texas folks, I’ll say that much – but even a favorable ruling may not help, as I would expect the Lege to weigh in as well, on the side of the opponents. I believe Ground Game Texas is on the right side of the issue and as noted I’d vote for one of their propositions if it were before me, but the power imbalance is what it is, and there’s not a clear way around it. You may have heard me say something like this in the past, but we’re going to have to change our state government if we want things like this to go differently in the future. Not much else to it, I’m afraid. The Current has more.

You are now free to busk in Houston

Houston’s anti-busking law has been struck down in federal court.

Photograph: Linda Nylind/The Guardian

An obscure, decades-old ordinance that restricted where buskers — musicians who performs in public places — can play for tips in Houston has been deemed unconstitutional and struck down by a federal judge.

The decision this week by U.S. District Judge Alfred H. Bennett strikes down the burdensome permitting process that confined musicians vying for cash gratuity to the Theater District. While performers could play elsewhere, soliciting tips while doing so made them liable to a fine.

Now, anyone can play any instrument, anywhere and without a permit as long as noise restrictions are not violated, Pacific Legal Foundation lawyer Joshua Polk said.

Houston accordionist Anthony Barilla, who in January 2020 lodged the lawsuit, tested the ordinance prior to suing the city and found the eight-block zone void of pedestrians. Fewer people means fewer tips, he argued.

“It wasn’t financially worth it,” said Barilla, a member of the accordion band Houston’s A-S-S and a composer whose work has been heard on the radio program “This American Life.”

Barilla believes stretches of Westheimer in Montrose or along Main Street are better suited for sidewalk performances than the downtown Theater District. He recouped the cost of his $50 permit when he tested the busking waters. When his permit expired, he did not renew it. The application process required musicians to obtain written permission from “the abutting property owners” where they wish to play. Barilla was rejected thrice.

[…]

The judge’s ruling took exception to the busking ordinance as a First Amendment violation. Arturo Michel, who represented the city against the federal litigation, said the court, however, found no issue in how the ordinance regulated pedestrian traffic and safety.

The city has no plan to appeal the ruling and Mayor Sylvester Turner would rather have the ordinance amended as needed, city officials said.

See here and here for the background. I agree with this ruling and am glad that the city will not appeal. I said they should have settled the lawsuit and amended the ordinance as needed at the beginning, but for whatever the reason they went and defended the law. Kudos to Anthony Barilla for taking up this fight.

Wingnut Trump judge issues his anti-birth control ruling

And from here it goes to the Fifth Circuit. Isn’t this fun?

A federal court ruling Tuesday may make it nearly impossible for Texas teens to access birth control without their parents’ permission.

U.S. District Judge Matthew Kacsmaryk ruled that Title X, a federal program that provides free, confidential contraception to anyone, regardless of age, income or immigration status, violates parents’ rights and state and federal law.

Kacsmaryk, appointed by President Donald Trump in 2019, is a former religious liberty lawyer who helped litigate cases seeking to overturn protections for contraception. Tuesday’s ruling is expected to be appealed.

Kacsmaryk did not grant an injunction, which would have immediately prohibited Title X clinics from providing contraception to minors without parental consent. Every Body Texas, the Title X administrator in Texas, said in a statement that it is awaiting additional guidance from the U.S. Department of Health and Human Services on how to proceed.

The case was brought by Jonathan Mitchell, the former Texas solicitor general who designed the novel law that banned most abortions in Texas after about six weeks of pregnancy. Mitchell has also brought a lawsuit to block requirements in the Affordable Care Act that require employers to cover HIV prevention medications.

Mitchell is representing Alexander Deanda, a father of three who is “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage,” according to the complaint.

Deanda does not want his daughters to be able to access contraception or family planning services without his permission, arguing that Title X’s confidentiality clause subverts parental authority and the Texas Family Code, which gives parents the “right to consent to … medical and dental care” for their children.

Kacsmaryk agreed, ruling Tuesday that Title X violates Deanda’s rights under the Texas Family Code and the Due Process Clause of the 14th Amendment, denying him the “fundamental right to control and direct the upbringing of his minor children.”

Minors in Texas almost always have to get their parents’ permission to get on birth control. Even Texas teens who have already had a baby cannot consent to getting on birth control; the state has the highest repeat teen birth rate in the nation. Texas is also one of just two states that does not cover contraception at all as part of its state-run Children’s Health Insurance Program.

But Title X, a federal program dating back to the 1970s, is the exception to the rule. While federal regulations say Title X clinics should “encourage family participation … to the extent practical,” they are not allowed to require parental consent or notify parents that a minor has requested or received services.

Kacsmaryk’s ruling “holds unlawful” and “sets aside” that piece of the federal regulation.

See here for the background. As this Vox article observes, wingnut lawyers like Mitchell can file a suit that will almost always be heard by Kacsmaryk, who will pretty much always give them the ruling they want. And because the Fifth Circuit is also full of wingnuts and SCOTUS doesn’t care about wingnut judicial activism, whatever rulings he hands down tend to stay in place even if they later get overturned. What a system, eh? Bloomberg Law, which notes that “HHS had argued that the court’s remedy should be limited to an injunction requiring service providers to notify Deanda should one of his daughters request birth control in contravention of Christian teachings against sex outside of marriage”, has more.

Texas drops appeal of ruling that forbade banning the sale of handguns to people under 21

Least surprising headline of the week. And month, and year, and pretty much any other arbitrary timeline you choose.

Texas will no longer fight to ban 18- to 20-year-olds from carrying handguns in public. A judge ruled earlier this year that a state law banning the practice was unconstitutional, and Texas initially filed a notice that it would appeal. But Texas Department of Public Safety Director Steven McCraw withdrew the appeal to the 5th U.S. Circuit Court of Appeals this week.

U.S. District Judge Mark Pittman’s ruling was the first major decision about Texas gun laws since the U.S. Supreme Court ruled in June that the Second Amendment protected individuals who carry weapons for self-defense.

In September, the state filed a notice of appeal, which angered gun rights activists.

“Once again, government officials in the state of Texas are proven to be anti-gun stooges,” Dudley Brown, the president of the National Association for Gun Rights, said in a news release at the time.

Neither the notice of appeal nor the withdrawal listed legal arguments or reasons for doing so; DPS and the Texas attorney general’s office could not immediately be reached for comment.

See here and here for the background. I’m quite certain that the legal reasoning behind this is “we never wanted to appeal this in the first place but there was an election coming up and we wanted to tread carefully, and now that everyone has been safely re-elected we can drop the pretense”. This was predictable enough to be visible from orbit. My question for the lawyers is, could some other group pick up the appeal in place of the state, the way the then-Republican Congress took up the defense of DOMA after the Obama administration dropped out? I don’t know what the conditions are for that.

True the Vote keeps on contempting

Here’s the latest filing from the plaintiffs in the defamation lawsuit against True the Vote and their lying grifter principles, Catherine Engelbrecht and Gregg Phillips. You may recall that Engelbrecht and Phillips spent a few days in the pokey for contempt having to do with their utter refusal to produce documents and other evidence that they were ordered to do. After a week, they were sprung by the Fifth Circuit, with the agreement/advisory that they really ought to, you know, comply with those orders.

Well, spoiler alert, they have not done so. Indeed, to the surprise of exactly no one who has been forced to pay any attention to this clown show, they have kept on being defiantly contemptuous. This filing goes into detail, and I’ll give you a taste:

Plaintiff Konnech, Inc. (“Konnech”) requests that this Court order Defendants True the Vote, Inc., Gregg Phillips, and Catherine Engelbrecht (“Defendants”) and their counsel of record to appear and show cause why they should not be held in contempt for violating the Court’s direct order from the bench at the prior October 27, 2022 show cause hearing and the Preliminary Injunction signed by this Court on October 31, 2022, based on the following grounds:

Defendants’ contempt is undeniable and inexcusable. For nearly three months, Defendants have defied this Court’s orders—including a TRO, Preliminary Injunction, and a direct order from the bench—requiring them to identify everyone who was involved in accessing the personal identifying information (“PII”) of U.S. poll workers on Konnech’s computers, to describe how they did it, and to identify everyone who has had possession of it. Defendants have treated compliance with the Court’s orders like a game of cat and mouse, and they have refused to comply with this Court’s orders even after being jailed for their contempt of the Court’s TRO.

Now, Defendants are in contempt of Sections 3, 4, 6 and 7 of the Preliminary Injunction signed on October 31, 2022, and entered by the clerk on November 3, 2022. Defendants violated Sections 3, 6 and 7 of the Preliminary Injunction for the same reasons that they violated Sections 5, 6 and 7 of the TRO, which are identical. There is evidence to suggest that Defendants also violated Section 4 of the Preliminary Injunction which required them to return all Konnech data in their possession to Konnech. On October 28, Defendants filed an affidavit signed by Defendant Engelbrecht which attached text messages of her alleged communications with the FBI about Konnech. Embedded in those text messages is a spreadsheet titled “Sort by State PII filter SSN Dupes DLN,” which, considering that this file is contained in text messages between Defendants and purported FBI agents with whom Defendants were in contact concerning Konnech, the data therein may include stolen Konnech data. Therefore, given Defendants’ testimony at the show cause hearing that they never had such PII, Defendants may be in further contempt of the
Preliminary Injunction by refusing to return the data contained in this file to Konnech, as required by Section 4 of the Preliminary Injunction. Additionally, Defendants also refused to comply with the Court’s direct order from the bench on October 27 to name every person in the hotel room where Defendants claimed to have accessed PII on Konnech’s computers.

The only appropriate description of Defendants’ conduct is contemptuous. Defendants are blatantly defying the Preliminary Injunction and a bench order for them to provide testimony—which renders them recalcitrant witnesses—and they should be held in contempt of Court for their misconduct.

It’s a long document, but most of that is the evidence that the plaintiffs present. There’s only about ten pages to read to understand their allegations, which includes social media mockery of the judge and threats against one of the Konnech principles. Konnech asks for TTV et al to be subject to “compensatory and coercive sanctions which the Court deems necessary to obtain Defendants’ compliance and to deter further contempt”, among other things. Jail didn’t work, so maybe that will. I’ll keep an eye on this going forward.

We said they’d come for birth control next

And here they are.

Matthew Kacsmaryk, a Trump appointee to a federal court in Texas, spent much of his career trying to interfere with other people’s sexuality.

A former lawyer at a religious conservative litigation shop, Kacsmaryk denounced, in a 2015 article, a so-called “Sexual Revolution” that began in the 1960s and 1970s, and which “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”

So, in retrospect, it’s unsurprising that Kacsmaryk would be the first federal judge to embrace a challenge to the federal right to birth control after the Supreme Court’s June decision eliminating the right to an abortion.

Last week, Kacsmaryk issued an opinion in Deanda v. Becerra that attacks Title X, a federal program that offers grants to health providers that fund voluntary and confidential family planning services to patients. Federal law requires the Title X program to include “services for adolescents,”

The plaintiff in Deanda is a father who says he is “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.” He claims that the program must cease all grants to health providers who do not require patients under age 18 to “obtain parental consent” before receiving Title X-funded medical care.

This is not a new argument, and numerous courts have rejected similar challenges to publicly funded family planning programs, in part because the Deanda plaintiff’s legal argument “would undermine the minor’s right to privacy” which the Supreme Court has long held to include a right to contraception.

But Kacsmaryk isn’t like most other judges. In his brief time on the bench — Trump appointed Kacsmaryk in 2019 — he has shown an extraordinary willingness to interpret the law creatively to benefit right-wing causes.

This behavior is enabled, moreover, by the procedural rules that frequently enable federal plaintiffs in Texas to choose which judge will hear their case — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk. So litigants who want their case to be decided by a judge with a history as a Christian right activist, with a demonstrated penchant for interpreting the law flexibly to benefit his ideological allies, can all but ensure that outcome by bringing their lawsuit in Amarillo.

And so, last Thursday, the inevitable occurred. Kacsmaryk handed down a decision claiming that “the Title X program violates the constitutional right of parents to direct the upbringing of their children.”

Kacsmaryk’s decision is riddled with legal errors, some of them obvious enough to be spotted by a first-year law student. And it contradicts a 42-year-long consensus among federal courts that parents do not have a constitutional right to target government programs providing contraceptive care. So there’s a reasonable chance that Kacsmaryk will be reversed on appeal, even in a federal judiciary dominated by Republican appointees.

Nevertheless, Kacsmaryk’s opinion reveals that there are powerful elements within the judiciary who are eager to limit access to contraception. And even if Kacsmaryk’s opinion is eventually rejected by a higher court, he could potentially send the Title X program into turmoil for months.

You can read the rest, and you should be upset by it. Note that there isn’t an injunction yet, just a terrible opinion by a terrible judge who hasn’t yet decided whether to impose his will on the entire country or not. But this is where we are, and it’s not going to end anytime soon. Daily Kos has more.

Hays County DA questions San Marcos marijuana ordinance passed by voters

Add this to the pile.

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

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

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

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

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

[…]

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

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

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

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

Ken Paxton’s hatred of LGBTQ+ people continues unabated

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

The only criminal involved

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

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

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

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

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

[…]

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

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

[…]

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

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

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

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

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

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

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

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

Officials indicated that no such records existed.

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

[…]

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

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

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

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

Some Harris County courts get Zoom bombed

Not a story I expected to read this week.

Pornographic videos were shown in several Harris County courtrooms Tuesday in what county officials are calling a “Zoom bombing” incident.

“Several Harris County Courts at Law experienced zoom bombing — or unauthorized screen sharing — of explicit images during the daily docket this morning. The incidents were quickly reported to court administrative staff, and the feeds were immediately shut down,” Holly Huffman, spokesperson for the Harris County Office of Court Management, said in a statement.

Huffman said the incident had been reported to the Harris County Sheriff’s Office Judicial Threat Unit for investigation, and that increased security measures have been put in place for Zoom links at all county courts.

Up to seven misdemeanor courtrooms were affected, according to ABC13, which first reported the incident.

“This is the first instance of unauthorized screen sharing during a County Court at Law proceeding since the 2020 implementation of zoom proceedings in the midst of the COVID-19 pandemic. We have provided thousands of hours of online court proceedings since then with no such issue,” Huffman said.

Huffman said the county is reviewing their security measures “to strike a balance between ensuring public access to the judiciary and preventing such an incident from happening again.”

Here’s a reminder of what Zoom bombing is, in case you’ve forgotten. That ABC13 story adds a bit of detail.

How the hack managed to happen to multiple courts was the talk of the day within the corridors of justice in Harris County on Tuesday, often accompanied by a chuckle with a wisp of bewilderment.

ABC13 has confirmed that at least three and possibly up to seven of the misdemeanor courts in Harris County were hacked with pornographic videos.

The COVID-19 pandemic led to Zoom court hearings to become commonplace in Harris County’s court systems. Judges would turn on a Zoom video link daily, making court proceedings accessible to attorneys and citizens who cannot make it there in person.

In the middle of the docket, the images began popping up on several of the court’s video screens.

“I saw 10 or 12 seconds of it, in the middle of the courtroom,” Tyler Flood, an attorney who saw the porn, said. “It was crazy. The entire huge screen got taken over by it. The camera was really zoomed in. Shocking!”

Several court coordinators, who did not want their names used, also confirmed to ABC13 that they saw porn on their computer screens. The coordinators said their judges simply turned off the Zoom, and court continued in real life.

At least one attorney shared an email stating that Zoom sessions for the court she was expected to conduct business in had been cancelled for the day because of the porn hack.

Flood, who is a past president of the Harris County Criminal Lawyers Association, hopes the unwanted, graphic intrusion does not lead to the end of Zoom in court.

“Because that has been one of the only good things that came from COVID,” he said. “As for the porn…’I wish I could un-see it.'”

Zoom bombing was pretty common early on, as everyone turned to Zoom and their security controls weren’t up to the task. My best guess here is that someone shared the Zoom links – I’m assuming that each of the courts in question had their own Zoom session and thus their own meeting links, though this is not clear from the story – with whoever was responsible for this. The “increased security measures” probably means that you get admitted into a “waiting room” and have to be admitted by the host, hopefully after they have verified that you belong on the call. Again, I’m just guessing here. Of all the cybersecurity incidents that could have affected the courts, this is pretty low on the risk list. I hope they’re reviewing other security controls to make sure nothing worse is likely to happen.

Judge assigned to hear election loser contest

From the inbox, a press release from Harris County Attorney Christian Menefee:

Judge David Peeples will preside over the election contest filed by Republican candidate Erin Lunceford to void the results of her race for the 189th District Court in the November 2022 Harris County General Election. Judge Peeples has set an initial status conference for today, Tuesday December 13, at 3:00 p.m.

“This will be an important case, and I’m glad to see it’s progressing,” said Harris County Attorney Christian D. Menefee. “The County will participate in the case, and we plan to make clear that it would be a grave injustice to throw out more than a million legally cast votes, especially given Ms. Lunceford’s completely baseless theories. Each of those votes represents a Harris County resident who participated in our democratic process. That is a sacred act, and we’re going to fight to protect it.”

Judge Peeples is based in San Antonio, and was appointed by the Honorable Susan Brown, the Presiding Judge of the Eleventh Administrative Judicial Region of Texas. Texas law disqualifies the judges in a county from presiding over an election contest filed in that county.

This contest is one of two current requests by losing Republican candidates to throw out the results of the November 2022 election in certain races. The other challenge is regarding State Representative District 135, which will be heard in the State House of Representatives.

“This election took countless hours of work not only by county employees, but by election judges and workers from both parties. We should be looking for ways to support these public servants rather than constantly undermining the hard work it takes to run an election in the third largest county in the country,” added County Attorney Menefee.

See here for the background. If the name sounds familiar, it may be because Judge Peeples was the jurist who ruled that the abortion bounty hunter law SB8 violated the state constitution last December, though he did not issue a statewide injunction against it. I did not see any news items related to this, so what you see here is all I know. Hopefully we will hear more about how this is progressing quickly.

Gender affirming care is happening in Dallas

Some good news that I had not been fully aware of.

The Dallas doctor who ran the state’s most prominent medical program for transgender youth says she has seen dozens of new patients since crucial court wins this summer and fall.

Dr. Ximena Lopez has seen 72 additional patients since May, when a Dallas judge allowed her to resume treating transgender youth newly seeking care at Children’s Medical Center Dallas. In September, Lopez celebrated another victory when the Dallas appeals court ruled the state also could not step in to halt these treatments.

The mandate in that appeal was issued Dec. 5, finalizing the decision.

Brent Walker, Lopez’s lawyer, said the number of new patients interested in gender-affirming care shows his client’s treatments are needed. He criticized the state of Texas, represented by the Office of Attorney General Ken Paxton, for trying to intervene.

“The only reason the Attorney General was trying to get into this case was for the sake of his personal politics, not because of his constitutional duties and certainly not because he has concerns about these children and parents, who need the kind of care Dr. Lopez and the others provide,” Walker told The Dallas Morning News in a statement.

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

The rulings mean transgender adolescents in North Texas will have access to treatments like puberty blockers and hormone therapy until the case goes to trial as lawyers and politicians across the state continue to fight over the legality and efficacy of gender-affirming care.

[…]

Lopez, a pediatric endocrinologist who ran the program, sued Children’s over the Genecis decisions in May.

That month, Judge Melissa Bellan granted Lopez an injunction that allowed her to temporarily resume admitting new patients seeking medical treatments. Children’s agreed to the injunction, which will last at least until a trial is slated to start in April 2023. The decision was a huge win for Lopez, who immediately began to take appointments.

Objecting to the resumption in care, Paxton sought to intervene in the case on the grounds that his office believes these treatments can constitute child abuse.

In June, Bellan ruled against Paxton, who quickly appealed her decision.

On Sept. 23, the 5th Court of Appeals in Dallas agreed with Bellan that the state cannot intervene. The three-judge panel – two Democrats and one Republican – that issued the ruling did not elaborate on its reasoning.

See here, here, and here for some background; there’s more at that first link to go farther back, when both Children’s Medical Center and UT Southwestern both ceased offering these services in response to pressure from Greg Abbott. The last update I had was about Paxton’s appeal to the Fifth Court; I had not seen that there had been a ruling against him. This is a great victory but likely to be a temporary one. Even if Dr. Lopez prevails in the trial, you can be sure that the Lege will have a bill to send to Abbott to specifically outlaw what she’s doing. This fight is going to be bigger and longer and harder than this court case. But at least in the meantime, kids who need this help can get it.

Settlement of the sexual harassment lawsuit against HCC Trustee Glaser on the agenda

On the agenda for this Wednesday’s HCC Trustee meeting is this item of interest.

Robert Glaser

Proposed Settlement Authority regarding Southern District of Texas Houston Division, Civil Action 4:21-cv-02216; Patricia Dodd vs. Houston Community College, et al.

RECOMMENDATION
Authorize the administration to attend the court-ordered settlement conference in Patricia Dodd v. HCC with the authority discussed during closed session with the Board of Trustees.

COMPELLING REASON AND BACKGROUND
Dodd filed a lawsuit on July 8, 2021, against Robert Glaser, In His Official Capacity; Cesar Maldonado, In His Official Capacity; and Houston Community College for the Southern District of Texas Houston Division, Civil Action 4:21-cv-02216; Patricia Dodd v Houston Community College, et al., (hereinafter referred to as the “Lawsuit”).

FISCAL IMPACT
As discussed in closed session.

See here, here, and here for some background. The lawsuit was filed last June, and other than Glaser stepping down as Board Chair this is the first news I’ve seen since then. I don’t know what the settlement will be, so I don’t want to get too far out on a limb here, but if we’re at a point where HCC, and thus the taxpayers, are on the hook for a payment of some kind, then both Glaser and Maldonado ought to be writing their resignation letters. Like I said, I’m missing some context here, and that could mitigate when I’m saying here, but resignation for both should at least be on the table. I’m sure we’ll know more soon.

“Heartbeat” lawsuit against doctor dismissed

I’d forgotten this was still a thing, it had been so long since it was filed.

In the first test of the Texas law that empowers private citizens to sue for a minimum of $10,000 in damages over any illegal abortion they discover, a state judge Thursday dismissed a case against a San Antonio abortion provider, finding that the state constitution requires proof of injury as grounds to file a suit.

Ruling from the bench, Bexar County Judge Aaron Haas dismissed the suit filed by Chicagoan Felipe Gomez against Dr. Alan Braid who had admitted in a Washington Post op-ed that he violated the state’s then-six-week ban, Senate Bill 8, which allows for civil suits against anyone who “aids or abets” an unlawful abortion.

Thursday’s ruling does not overturn the law or preclude similar suits from being filed in the future, lawyers for Braid said Thursday. Nor does it change the almost-total ban on abortion that went into effect in Texas when the U.S. Supreme Court struck down federal abortion protections earlier this year.

“This is the first SB 8 case that has gone to a ruling, a final judgment,” said Marc Hearron, senior counsel for the Center for Reproductive Rights, which was part of Braid’s legal team. “It doesn’t necessarily stop other people from filing SB 8 lawsuits, but what we expect is other courts, following this judge’s lead, would say if you weren’t injured, if you’re just a stranger trying to enforce SB 8, courts are going to reject your claims because you don’t have standing.”

[…]

Haas said in court he would issue a written order in the next week, Hearron said. Gomez declined to comment until the ruling is finalized, though he said he would appeal the ruling. Gomez, who had no prior connection to Braid according to court filings, has said that he believed SB 8 was “illegal as written” given that Roe v. Wade hadn’t yet been overturned at the time, and he requested the court declare it unconstitutional.

Gomez told the Chicago Tribune after filing the suit that his purpose was not to profit from it, but rather to highlight the hypocrisy of Texas lawmakers when it comes to mandates on the state’s citizens.

“Part of my focus on this is the dichotomy between a government saying you can’t force people to get a shot or wear a mask and at the same time, trying to tell women whether or not they can or can’t get an abortion,” Gomez said. “To me, it’s inconsistent.”

The law, which was the most restrictive abortion law in the country when it went into effect in September 2021, purports to give anyone the standing to sue over an abortion prior to six weeks of pregnancy, which is before most patients know they’re pregnant.

The state later banned virtually all abortions except those that threaten a mother’s life, with violations by anyone who provides the procedure or assists someone in obtaining one punishable by up to life in prison. Abortion patients are exempt from prosecution under the law.

Haas agreed with plaintiffs that the constitutional standard is that a person must be able to prove they were directly impacted to sue over an abortion, Hearron said.

See here, here, and here for the background. According to the Trib, there were three lawsuits filed against Dr. Braid, but this was the only one served to him, so I believe that means there are no other active lawsuits of this kind still out there. It’s a little wild to look back and realize that this awful law ultimately led to so little direct action, but it most definitely had a chilling effect, and it set a terrible precedent that SCOTUS shrugged its shoulders at in the most cowardly way possible.

Dr. Braid’s intent, in performing the abortion and writing the op-ed that practically invited these lawsuits, was to challenge SB8’s legality on the grounds that Roe v Wade was the law of the land and thus SB8 was facially unconstitutional when it was passed. You could still make that argument now – a similar lawsuit in another state (I’m blanking on the details) hinged on that same point and prevailed in court – but in the end it wouldn’t much matter, as Texas’ so-called “trigger” law has gone even farther than SB8 did. I’m also not sure that Judge Haas’ ruling will stand on appeal, since it seems clear that the point of SB8 was that literally anyone had the standing to sue. But maybe the Texas Supreme Court will agree that “standing” does mean something less expansive than that. Again, it’s basically an academic exercise now, but you never know. And if anything about this makes the forced-birth caucus in the Lege unhappy, they’ll just pass another law to get what they want. My head hurts. Reform Austin has more.

Beto tries again to get ridiculous defamation lawsuit dismissed

Hope he has better luck here.

The gubernatorial election is over, but Kelcy Warren’s defamation lawsuit against Beto O’Rourke lives on.

Warren, the Dallas pipeline tycoon, sued O’Rourke in February over accusations he made on the campaign trail that Warren effectively bribed Gov. Greg Abbott with a $1 million contribution following the 2021 power grid collapse. The lawsuit has since been working its way through the legal system, and a state appeals court heard oral arguments Wednesday on O’Rourke’s motion to dismiss it.

Addressing a three-judge panel at the Third Court of Appeals, O’Rourke lawyer Chad Dunn argued that O’Rourke’s scrutiny of the donation was protected by the First Amendment and involved someone who had become a public figure.

“The minute you give $1 million to a gubernatorial candidate in one of the largest states, in Texas, you can expect attention,” Dunn said. “Mr. O’Rourke’s attention was not libel or slander.”

Warren’s lawyer, Dean Pamphilis, maintained his client is a private citizen.

“What they’re asking you to do here is to conclude that a million-dollar — or any — campaign contribution makes you a public figure, opens you up to attack that you can’t defend against unless you prove actual malice, and there is no precedent for that whatsoever,” Pamphilis said.

[…]

Both lawyers suggested the case has broader stakes for freedom of speech and electoral politics.

“Do we wanna live in a world where after political campaigns, we’re gonna have jury trials about what candidates said along the way?” Dunn said.

See here for the last update. I maintain this is a nuisance suit being brought by a fabulously wealthy dude who wants to have big influence over politics and lawmaking but doesn’t want to be held accountable for it. He absolutely does not deserve this level of protection from his own actions.

LULAC files that lawsuit to end Houston City Council At Large districts

We’ve been waiting for this.

The League of United Latin American Citizens on Monday filed its long-anticipated lawsuit against the city of Houston, seeking to get rid of at-large City Council seats that it says leave Hispanic residents with insufficient representation at City Hall.

The group, one of the largest Hispanic civil rights organizations in the country, first announced plans to take legal action against the city in January.

While 45 percent of Houston residents are Hispanic, Robert Gallegos of District I is the only Hispanic person holding a seat on the 16-member body, even though the city previously created two other Hispanic-opportunity districts, H and J.

The federal lawsuit aims to replace the city’s five at-large seats, which represent voters citywide, with single-member seats dedicated to certain geographic areas. Houston’s current election system has created barriers to Hispanic representation and deprived hundreds of thousands of minority Houstonians of their voting rights guaranteed by law, the complaint says.

“The Latino voters of Houston have waited for fair redistricting plans. They have waited for years for the city of Houston to end its long relationship with ‘at-large’ districts that dilute the electoral strength of Hispanics,” the lawsuit says. “The time has come to replace this old election system that functions solely to dilute the power of Houston’s Latino voters.”

Houston City Council was comprised of all at-large positions until 1980, when it switched to a mix of district seats and five at-large seats. The change led to more diverse council bodies and better representation of minority voters, according to the complaint. Still, only four with Spanish surnames have been elected to one of the five at-large districts since then because Latino-preferred candidates rarely do well in citywide races, it says.

While many local Latino candidates also face other challenges, such as a lack of resources, the council structure remains a major hurdle for them, according to Jeronimo Cortina, an associate professor in political science at University of Houston.

“When you look into political science literature, you’ll find that at-large seats tend to decrease the likelihood for minority candidates to win an election,” he said.

It is, however, not sufficient to simply look at the absence of Latino city council members, Cortina said. To substantiate LULAC’s claim that Houston is in violation of the Voting Rights Act, the organization would have to prove that Latino Houstonians have been acting as a cohesive voting bloc but unable to elect a candidate of their choice.

“It would take a lot of time and a lot of data,” Cortina said. “But the fact is that Latinos have been running and Latinos are not winning these elections.”

See here, here, and here for the background, and here for a copy of the lawsuit. I’ve said all I have to say in that first link. Whatever happens with this lawsuit happens, and I’ll be fine with it. Courts have ordered cities like Pasadena and Farmers Branch to incorporate City Council districts in recent years, but those places began with all-At Large systems, and they were much more clearly discriminatory in my opinion. They were also decided in a time before SCOTUS went all in on destroying the Voting Rights Act. This could go either way, and I’ll be surprised if there is a temporary restraining order in place to block the use of the current Council map for the 2023 election. After that, we’ll see. The Trib has more.

Uvalde class action lawsuit over mass shooting officially filed

We’ve been waiting for this.

Survivors of the fatal mass shooting at Robb Elementary School in Uvalde, Texas, have filed a $27 billion class action lawsuit against multiple law enforcement agencies in Texas, according to court documents.

The lawsuit, filed Tuesday in federal court in Austin, names the city, the Uvalde Consolidated Independent School District, the school district’s police department, the Uvalde Police Department, the Texas Department of Public Safety and a number of persons who are members or former members of the agencies listed as defendants.

The plaintiffs include parents and teachers and school staff members who were at the school May 24 when 19 students and two teachers were gunned down in adjoining classrooms just a few days before school was to let out for the summer. At least 17 others were wounded.

A total of 376 law enforcement officers from multiple agencies responded to the massacre, the second deadliest shooting on a K-12 school in the United States.

Officers waited 77 minutes after the shooter entered two adjoining classrooms before storming in and killing the gunman, an 18-year-old Uvalde resident.

The lawsuit alleges the victims and survivors “sustained emotional and psychological damages as a result of Defendants’ conduct and omissions” as a result of the shooting.

According to the lawsuit, despite active shooter training, law enforcement “fundamentally strayed from conducting themselves in conformity with what they knew to be the well-established protocols and standards for responding to an active shooter.”

The lawsuit went on to reference the dysfunction and extended time period law enforcement took to respond to the shooting.

“Instead of swiftly implementing an organized and concerted response to an active school shooter who had breached the otherwise ‘secured’ school buildings at Robb Elementary school, the conduct of the three hundred and seventy-six (376) law enforcement officials who were on hand for the exhaustively torturous seventy-seven minutes of law enforcement indecision, dysfunction, and harm, fell exceedingly short of their duty bound standards,” the suit claims.

[…]

The civil complaint is one of several around the massacre that seeks damages from a number of parties. One federal lawsuit filed earlier this week alleges nearly two dozen people and entities, including the gun manufacturer and store that provided the rifle used in the attack, were negligent and failed to protect a student who was killed. Other families filed a similar lawsuit in September.

See here and here for the background on this class action lawsuit, which we first heard about in August. As the story notes, there are separate lawsuits filed in September and earlier this week by different plaintiffs, mostly against the same defendants. As I’ve said before, I don’t know what the odds of success are – I’m more pessimistic than optimistic, but will be delighted to be proven wrong. I’ll be rooting for them regardless. NPR, Reuters, and KENS5 have more.

Perla Huerta added to migrants’ lawsuit against Ron DeSantis

Noted for the record.

A Boston-based law firm suing Florida’s governor for his scheme to transport asylum-seekers from San Antonio to Martha’s Vineyard under false pretenses has added Perla Huerta — the San Antonio woman accused of recruiting the migrants — as a defendant in its class-action lawsuit.

Lawyers for Civil Rights, the law firm that filed the lawsuit in a federal court in Massachusetts in September, initially had known Huerta only as “Perla.” The firm amended its lawsuit on Tuesday, saying “Huerta was the lead recruiter tasked with finding immigrants in San Antonio and transporting them to Martha’s Vineyard.”

The New York Times and other news outlets had previously identified the woman as Perla Haydee Huerta, 43.

Three migrants represented by lawyers are identified in the lawsuit as Yanet, Pablo and Jesus Doe. They are requesting damages, as well as an injunction blocking Florida Gov. Ron DeSantis and the state from coercing immigrants to travel by “fraud and misrepresentation.”

The lawsuit claims Huerta lied to the migrants about the help they would receive at their destination, including help getting jobs and with their immigration cases, if they agreed to get on the planes. The lawsuit says the migrants felt helpless, confused and anxious after they landed on the small island and when they reached out to Huerta by phone, she ignored or dismissed their concerns.

[…]

The amended complaint also cites text messages between Huerta and staffers for DeSantis detailing their plans to recruit migrants.

The Florida governor’s office didn’t immediately respond to an email from The Texas Tribune seeking comment.

The lawsuit claims that the governor’s chief of staff, James Uthmeier, and Florida’s public safety adviser, Lawrence Keefe, who are also listed as defendants in the lawsuit, were part of the plan. Uthmeier also texted Texas Gov. Greg Abbott’s former chief of staff, Luis Saenz, saying that Keefe would be the point of contact about the operation, the lawsuit says.

Keefe had come to San Antonio with Huerta in early September to scope out places where they could find migrants to recruit, such as churches, a transportation office and a convenience store parking lot, the lawsuit says.

See here and here for some background. There are also multiple investigations going on, with the one by Bexar County Sheriff Javier Salazar being of greater potential peril for Perla. I don’t expect Ron DeSantis to face any real accountability for his actions, but a functionary like Perla has more exposure, and being added to this lawsuit may provide some incentive for her to make a deal and spill some beans. We’ll see. The Current has more.

Justice Department probing RealPage

Possibly good news for renters.

The Department of Justice’s Antitrust Division has opened an investigation into whether rent-setting software made by Richardson-based tech company RealPage is facilitating collusion among landlords, ProPublica reported.

The inquiry is being launched as questions have arisen about a 2017 merger between RealPage and its largest pricing competitor. A source with knowledge of the matter told ProPublica that some DOJ staff raised concerns about the merger but were overridden by political appointees of former President Donald Trump.

Congressional leaders have pushed for an investigation into RealPage in three letters to the DOJ and the Federal Trade Commission, which were sent after a ProPublica report on the software’s use in mid-October.

The letters raised concerns that RealPage’s pricing software could be pushing rents above competitive levels and allowing big landlords to coordinate their pricing in violation of federal antitrust laws.

“We are concerned that the use of this rate setting software essentially amounts to a cartel to artificially inflate rental rates in multifamily residential buildings,” three senators said in a letter in early November. They included Sen. Amy Klobuchar, the Minnesota Democrat who chairs the Senate Subcommittee on Competition Policy, Antitrust and Consumer Rights.

The Capital Forum first reported the existence of the investigation.

RealPage’s software works by collecting information from property managers who are the company’s clients, including what rents they are able to charge tenants. That information is fed into an algorithm that then recommends prices daily for each available apartment.

Though RealPage says the information is aggregated and anonymized, some experts have said using private data from competitors to set rents could run afoul of antitrust laws, allowing property managers to illegally coordinate their pricing.

[…]

The DOJ’s investigation represents the second time the federal law enforcement agency has looked into RealPage’s rent-setting software. In 2017, the DOJ flagged a proposed merger in which RealPage sought to buy its biggest competitor, a company called Rainmaker Group, which made rent-setting software known as LRO, or Lease Rent Options.

RealPage’s then-CEO Steve Winn said the $300 million purchase would allow RealPage to double the number of apartments it was pricing from 1.5 million to 3 million units. RealPage was sold in 2020 to private equity firm Thoma Bravo in a $10 billion deal.

After the acquisition was announced in early 2017, the DOJ requested additional information from the companies involved. Federal regulators scrutinize mergers above a certain size — right now, it is transactions valued at $101 million — and typically allow them to proceed after only a preliminary review.

But the government can request more information from companies and even seek to block the merger in court if it believes it could substantially harm competition.

A paralegal specialist who worked on the original DOJ probe into RealPage said it was narrowly focused on the impact on competitors who made software with a similar purpose. The paralegal said she was unaware of any complaints by those companies about the proposed merger.

See here for some background, and that linked Pro Publica story for more on this investigation. My earlier post is about a lawsuit filed by a group of renters over RealPage’s pricing algorithms. It’s not totally clear to me what the Justice Department could do at this time, but let’s see what they find now that they’re looking. I suspect any real action would have to be legislative, and for obvious reasons that won’t happen anytime soon. At least the issue is getting some publicity.

City of Uvalde sues Uvalde County DA

What is going on here?

The city of Uvalde is suing the local district attorney, accusing her of withholding information an independent investigator needs to conduct an internal affairs investigation of the police response to the Robb Elementary School shooting.

City officials hired Jesse Prado of JPPI Investigations LLC to conduct the internal affairs inquiry. The suit filed Thursday names Christina Mitchell, Uvalde County district attorney for the 38th Judicial District, as the lone defendant. It seeks a judge to compel Mitchell, who could not be immediately contacted for comment, to hand over all relevant law enforcement investigative records and materials from all law enforcement agencies.

“The internal affairs investigation by Prado is ongoing, but it is significantly restricted by the scope of evidence available to Prado by defendant,” the suit alleged.

In a statement about the suit, city officials said the Uvalde community had “waited entirely too long for answers and transparency” about the May 24 shooting and the widely criticized law enforcement response.

“Despite the City of Uvalde’s efforts to amicably obtain the necessary investigative materials for its ongoing Uvalde Police Department’s Internal Affairs investigation, the District Attorney has blocked the City’s ability to obtain critical information to assess its officers’ actions and compliance with police department policies and expectations,” they said in a statement. “From day one, the city’s focus is on helping the entire Uvalde community, parents who lost children, children who lost parents, and young survivors navigate through the healing process.”

This is all too weird. I have no idea what is going on. I can’t even imagine how frustrated the Uvalde parents must be at this point. Texas Public Radio has more.

Yeah, Deshaun Watson will be back on Sunday

Unfortunately, his suspension is now over.

With nearly all of the more than two dozen lawsuits filed against Deshaun Watson having been settled, most of the women who accused the Cleveland quarterback of sexual misconduct have no interest in his return to Houston on Sunday and just want to move on with their lives, according to their attorney.

But about 10 of the women who accused Watson of sexual harassment and assault during massages are planning to attend Sunday’s game at NRG Stadium when the Browns take on the Texans and watch him play in his return from an 11-game suspension, said attorney Tony Buzbee.

Some of the women really want to attend the game “to kind of make the statement, ‘Hey we’re still here. We matter. Our voice was heard and this is not something that’s over. (Sexual harassment and assault) happen every day in the United States,’” Buzbee said.

The women declined to comment ahead of Sunday’s game, he said.

But it’s unclear if the spotlight Watson is expected to get this week will mean continued attention on the allegations against him and what his accusers say is trauma they’re still dealing with, or if it’s the first step in shifting the conversation strictly to football and his play on the field, according to experts.

“It can go either way … I think probably for the vast majority of NFL fans, they’re going to forget about the past and start focusing on the future with him,” said David Ring, a California-based attorney who is not connected to the lawsuits and who has represented victims of sexual assault.

[…]

Some organizations that work with victims of sexual violence said the expected media attention on Watson’s return to Houston is likely to trigger traumatic emotions in the women who accused him and with other survivors.

“I think survivors in high-profile cases whom I’ve talked to over the years, you get very mixed reactions. Some of them just want it to be out of the news … Others want (the perpetrator’s name) repeated every time … because bit by bit, they feel like that brings some degree of justice,” said Scott Berkowitz, president and founder of RAINN, the Rape, Abuse & Incest National Network.

Sonia Corrales, deputy CEO of the Houston Area Women’s Center, said this week’s focus on Watson’s return could be an opportunity for the NFL to highlight its policies to punish violence against women. A 2021 study by the University of Arkansas found the NFL did not follow its own personal conduct policy in punishing players who committed violent acts, including violence against women.

An NFL spokesman did not immediately reply to an email seeking comment.

“I’m going to suspect that the NFL is going to hold its nose and hope this weekend goes by quickly. I don’t think they’re going to address it,” Ring said.

Corrales said she hopes the attention this week from the media and public also prompts discussion not just on football but on sexual violence and all its forms.

“Sure, you want to concentrate on football, but let’s not minimize. Let’s also say this is important, that we need to talk about the trauma and the impact that sexual violence has on survivors,” Corrales said.

As a reminder, there are two pending lawsuits against Watson, a new one and a holdover from the original batch of 24. I think we can all assume that the NFL will do its best to avoid the subject this weekend, but that doesn’t mean the rest of us have to. If you find yourself at the game, please take the opportunity to let your feelings be known. Reform Austin has more.

Another lawsuit filed by Uvalde parents

Another one to watch.

The mother of a 10-year-old killed in the Uvalde school shooting has filed a federal lawsuit against the gun-maker and seller, the city of Uvalde, its school district and several law enforcement officers.

Sandra Torres’ daughter Eliahna was one of 19 students and 2 teachers killed by an 18-year-old gunman at Robb Elementary in May.

“I miss her every moment of every day,” Torres said in a joint press release with her lawyers from Everytown for Gun Safety’s legal team and Texas-based LM Law Group. “I’ve brought this lawsuit to seek accountability. No parent should ever go through what I have.”

The new lawsuit alleges that Daniel Defense — the manufacturer of the shooter’s weapon — violated the Federal Trade Commission Act, arguing that the Georgia-based company’s marketing on social media and video games “prime young buyers to purchase AR-15-style rifles as soon as they are legally able.” Earlier this year, gun-maker Remington settled a lawsuit for $73 million with the Sandy Hook shooting victims’ families who had also targeted the company’s marketing.

Torres’ lawsuit also accused Oasis Outback of “reckless dereliction” of selling weapons to the 18-year-old shooter. Some store patrons later told the FBI that he had “appeared odd and looked like one of those school shooters.”

The suit also accuses various law enforcement officers of failing “to follow active shooter protocols.” It argues that their decision to treat the active shooter as a “barricaded subject” inside the two classrooms had violated the victims’ constitutional rights.

[…]

Many of these defendants have also been facing a federal lawsuit filed by the families of three student survivors in September, which alleges that the parties’ actions and negligence contributed to the shooting. This followed another claim filed in August seeking $27 billion from the school district and other government agencies to compensate the victims.

Numerous Uvalde officials and officers have also resigned or been fired over the past few months, and the school district also suspended its entire police department in October. Some are named in Torres’ lawsuit, including former Uvalde school district police Chief Pete Arredondo, Uvalde Police Department’s acting chief Lt. Mariano Pargas, as well as Texas Department of Public Safety’s troopers  Juan Maldonado andCrimson Elizondo.

See here and here for more on the earlier lawsuits; the former is a class action suit that I’m still not sure has actually been filed yet. The Chron adds some details.

The 77-page lawsuit accuses many of the defendants of contributing to wrongful death, negligence and violating the constitutional rights of Eliahna and other victims at Robb Elementary.

“Sometimes the only way you get justice is by filing a lawsuit,” said Blas Delgado of San Antonio, the lead lawyer for the Torres family. “There have been a lot of questions throughout the investigation, and we hope this also helps answer some of them.”

The suit alleges that Daniel Defense “markets its products to adolescent and young men using a range of channels, including social media content, product placements, and print advertising.

“For example, Daniel Defense promotes its products heavily on Instagram, a platform with a young user base,” the lawsuit states.

“Daniel Defense also places its products in video games, and then heavily promotes the video game tie-ins in the company’s social media accounts,” the suit said.

The gun manufacturer did not respond to a request for comment on Monday.

Salvador Ramos of Uvalde bought a DDM4 V7 rifle on Daniel Defense’s website for $2,054.28 on May 16, his 18th birthday.

On another website, he paid $1,761.50 for 1,740 rounds of ammunition for the rifle.

The next day, Ramos went to Oasis Outback and bought a Smith & Wesson M&P15 assault rifle for $1,081.42, the lawsuit said.

The day after that, the teenager went back to Oasis Outback to buy an additional 375 rounds of AR-15 ammunition.

Ramos returned to Oasis Outback again two days later, on May 20, to pick up his Daniel Defense rifle and bought accessories for the weapon.

“Oasis Outback had a duty not to sell weapons to the just-turned 18-year-old shooter, who it knew or reasonably should have known was likely to harm himself or others,” the suit said.

“The shooter was described by patrons of the store as having a nervous disposition and behaving suspiciously.”

“The shooter had purchased two extraordinarily lethal assault weapons and enough ammunition to fight off a small army, as well as a holographic sight and Hellfire Gen 2 trigger system, spending thousands of dollars within days of his 18th birthday,” it stated.

We’ve talked about Daniel Defense before. I’d love to see them at least feel compelled to settle, but suffice it to say I consider that an underdog. With SCOTUS as it is I fear they’re untouchable. But I hope to be proved wrong. Reform Houston and the Current have more.

SCOTx hears firefighter pay parity arguments

Lots at stake here.

More than four years after Houston voters approved a measure that would grant firefighters equal pay with police officers, the legal battle to decide the referendum’s fate landed Tuesday in the hands of the Supreme Court of Texas.

The state’s highest justices heard oral arguments regarding Proposition B, the charter amendment pushed by the firefighters’ union and approved by voters in 2018. It would grant firefighters pay parity with police officers of a similar rank and seniority.

Justices also heard arguments in a similar case that stems from the city and union’s preceding contract stalemate.

It did not take long for the justices to probe the city’s divergent arguments in the two cases, which the fire union long has said conflict each other. One justice told attorneys representing the city they were operating on “a knife’s edge” between the two cases.

The court’s rulings, which likely will not be released for months, could have drastic consequences for the city’s roughly 3,900 firefighters, the annual City Hall budget and next year’s city elections. If it rules in favor of the union, it would give underpaid firefighters their biggest salary hikes in years, while introducing a hole in the city budget likely worth hundreds of millions of dollars.

The long-running legal dispute has its roots in a contract stalemate dating back to 2017, when the latest pact between the city and firefighters expired. The two sides were unable to reach a new deal in negotiations and mediation, and they have been locked in contentious court battles since.

Voters approved Prop B, the pay parity measure, by a 59-to-41 margin in 2018, but the city and the police union have contested its legality. The city has not implemented the measure, although City Council has given firefighters 6 percent raises in each of the last two budgets, with a promise to do so again next year.

The Prop B case centers on whether equal pay with police would conflict with the existing framework to pay firefighters, enshrined in state law and adopted by Houston voters in 2003.

After voters approved Prop B, the city and police union argued its new standard, comparing pay to police officers, conflicts with the state standard that compares pay to the private sector. That would run afoul of the law’s preemption clause, they argued, and the Texas Constitution, which says cities cannot pass laws or charters that conflict with state law.

The city, however, has made an incompatible argument in the other case heard Tuesday, which was consolidated with the Prop B hearings before the Supreme Court. In that case, the city has argued there is no private comparison to firefighters. And it has contended that phrase of the state law is unconstitutional, along with the judicial mechanism to enforce it, which the firefighters have sought to use.

In the Prop B case, the city says the pay parity measure is blocked by the state law. In the other, it argues that state law is unconstitutional.

You can read on for the details. This is the consolidation of two different lawsuits. I suppose under other circumstances the city would have a bit more leeway to make these apparently divergent arguments. The law can be weird like that sometimes. If the firefighters win, it’s going to cost the city a lot of money, though the firefighters say it won’t be as much as the city claims. I hope we don’t have to find out. We’ll likely get a ruling sometime next year, and I’m sure all of the people now running for Mayor will be keeping a close eye on it.

Your periodic reminder that Ken Paxton’s vote fraud claims are bullshit

A long Chron story that documents the bullshit.

The only criminal involved

The first of the big cases to fizzle was in Gregg County.

Prosecutors and local politicians announced an investigation soon after county commissioner candidate Shannon Brown won the March 2018 Precinct 4 primary by only five votes. But it wasn’t until six weeks before the 2020 general election that Paxton unveiled a 134-count indictment charging Brown, his wife and two election workers with illegally rounding up mail ballots.

“We have a county commissioner under indictment for mail ballot fraud,” Sen. Bryan] Hughes said last year at a signing ceremony for his elections bill in nearby Tyler. “Anybody who tells you there is no voter fraud in Texas is telling you a very big lie.”

Early this year, however, the case quietly and dramatically shriveled. Each defendant admitted to a single misdemeanor infraction. Brown, who apologized for one technical election code violation, stayed in office. (He lost re-election in this spring’s Democratic primary.)

Officials have repeatedly refused to explain how a 134-felony indictment deflated to a four-misdemeanor violation. District Attorney Tom Watson, who is leaving office at the end of the year, did not return calls.

Another signature case took a hit this summer when a Hidalgo County jury acquitted former Edinburg Mayor Richard Molina of 12 counts of election fraud.

Molina was arrested in 2019 for “orchestrating an organized illegal voting scheme,” according to an attorney general’s office news release. Prosecutors said he tried to persuade voters to change their addresses — in some cases to an apartment complex he owned — so they could vote for him.

Molina, who won the 2017 race by more than 1,200 votes, said the case was instigated by a political opponent. At his August trial, he said he had relied on published opinions from the Texas Secretary of State and attorney general to try to decipher a vague state law describing where a person could claim to live for voting purposes. He noted the Legislature changed the law in 2021 to include more precise language.

“Nobody tried to hide anything,” added his lawyer, Jaime Pena.

It is unclear how Molina’s verdict will affect the still-pending cases of his wife and more than a dozen residents alleged to have reported moving into Edinburg to vote for him.

There’s more, but you get the idea. One key point that the story makes is that Paxton will pile on the charges – for example, including an individual charge for each alleged illegal vote – even though there’s no legal advantage in doing so, as any punishment would be concurrent and not consecutive, meaning that 100 convictions would result in the same jail time as one conviction. But by doing so he can make the claim that there are “hundreds” of pending cases, even if the reality is a handful of defendants each with a bunch of charges for the same alleged offense. It’s the oldest play in the book, one he inherited from Greg Abbott back when it was Abbott’s job to pursue vindictive yet utterly baseless charges against people who for the most part did nothing criminal. The fear and the screaming headlines are the point.

To be fair, this sort of bullshit is happening in plenty of other places. It’s just that the primary effect is to ruin people’s lives and to scare others into not voting. We’re not dealing with rational actors here, but that doesn’t mean they can’t do real damage. And we’re in for another at least two years of it here.

Who else can we think of who’s alleged to have violated Texas securities law?

Into every story about cryptocurrency, some amount of absurdity is sure to follow.

Texas is investigating celebrities who had endorsed FTX, the now bankrupt cryptocurrency firm, for potentially violating state securities laws.

The Texas State Securities Board started looking into FTX’s operations last month over whether the exchange’s yield-bearing crypto accounts were providing residents with unregistered securities. Since the company’s collapse on Nov. 11, the board has significantly expanded its probe to examine the impact of this multibillion-dollar bankruptcy.

And promotions of FTX by celebrities such as the Golden State Warriors’ Steph Curry and the Tampa Bay Buccaneers’ Tom Brady are now part of this broadened investigation, as first reported by Bloomberg News and confirmed by The Texas Tribune.

It also comes amid a class-action lawsuit filed in Florida against Curry, Brady and other celebrities — mostly high-profile athletes — which alleges that FTX had used their endorsements as part of a scheme designed to take advantage of “unsophisticated investors.” It also names FTX’s former CEO Sam Bankman-Fried.

“Anyone who renders investment advice in Texas typically needs to be registered and they typically have to truthfully disclose all known material facts,” said Joe Rotunda, the state board’s enforcement director. “In Texas, there is not a different system of justice or regulation for people who are celebrities.”

It’s currently unclear if any prominent Texan would be investigated, but Rotunda said his team is still compiling a list of relevant parties based on recent court filings by FTX’s current CEO John J. Ray III and the class-action lawsuit. In particular, it will be looking at what the promoters disclosed, how they were compensated and how their promotions were scripted and filmed.

“It’s important from a securities regulation standpoint, and from a bankruptcy standpoint, to determine the ways FTX was encouraging clients and Texans to use FTX and invest with FTX,” he said.

He added that his team will also have to consider how the relevant law applies in this situation, since it was established via a 1985 case involving an investment and financial newsletter being distributed via fax.

“That’s a far cry from social media and broadcast advertisements, let alone tokens and blockchains, right?” Rotunda said.

I mean, okay, that’s their job and I appreciate that they are not giving anyone a pass for being a celebrity. It’s just that I personally don’t expect a celebrity endorser to be an actual expert on the thing they’re being paid to endorse. Maybe they should have some level of knowledge, when we’re talking about a financial product, but as a general rule I just figure either they like the thing they’re shilling for or they like the money they’re getting for the shilling. I don’t need for Jose Altuve and Alex Bregman to be salsa connoisseurs in real life. It’s just an ad.

On the other hand, given the best known example we have of a prominent person being accused of violating state securities law (hint: his name rhymes with Pen Kaxton), it could be a decade or more before any of them find themselves answering to the charges in question. If I’m Tom Brady’s lawyer, I’m probably telling him to worry about other things over this one. He’s not in any near-term danger.

SCOTx allows provisional votes to be counted

Good.

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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