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Legal matters

Fifth Circuit does its thing with appeal of voter purge case

Get out the rubber stamp.

Still the only voter ID anyone should need

A federal appeals court has ruled that Texas does not need to release details about a list of 11,737 registered voters whom the state has identified as potential noncitizens.

The U.S. Court of Appeals for the 5th Circuit on Thursday reversed a lower court’s ruling in August in which a district judge had found Texas was violating federal law by refusing to release the list.

The appellate court found that the five civil rights groups suing the Texas secretary of state for the list did not have standing to sue. Circuit Judge Edith H. Jones wrote in the ruling that the groups have neither established injury to themselves from the state’s refusal to release the list nor sued on behalf of any voter included on the list who could be harmed.

The coalition “offered no meaningful evidence regarding any downstream consequences from an alleged injury in law under the NVRA [National Voter Registration Act],” Jones wrote. “The lack of concrete harm here is reinforced because not a single Plaintiff is a Texas voter, much less a voter wrongfully identified as ineligible.”

The groups suing the state are the Campaign Legal Center, the American Civil Liberties Union of Texas, the Mexican American Legal Defense and Educational Fund, the Lawyers’ Committee for Civil Rights Under Law and Demos. The groups, which sued the state in February for failing to comply with the NVRA’s public disclosure requirements, sought to hold Texas accountable if it incorrectly misidentified registered voters as noncitizens and disenfranchised naturalized citizens.

“We are disappointed with the court’s opinion and are exploring our options with respect to any next steps,” Molly Danahy, the Campaign Legal Center’s senior legal counsel for litigation, said in a statement. We will continue to monitor potential voter purges in Texas because transparency is vital to a healthy democracy and all citizens deserve to have equal access to the ballot.”

See here and here for the background. I didn’t find any discussion of this in the usual places I look on Twitter, so I don’t know if there’s a hint of merit to the ruling or if it’s wholly made up. Given the recent history of this circuit and that top-level bad actor Edith Jones wrote it, you can probably guess what I think. The Fifth Circuit not only gets no benefit of the doubt from me, they get a presumption of doubt. This is simply not a legitimate court, and this wasn’t even their worst ruling of the week. Burn it all down.

The Paxton subpoena-fleeing saga gets more ridiculous

Because of course it does.

Best mugshot ever

Lawyers in an abortion lawsuit tried for days to subpoena Attorney General Ken Paxton before sending a process server to his home Monday, and notified his office that their server was there before Paxton fled in a truck driven by his wife, according to court records detailing the communication.

Paxton said he left his house in a truck driven by his wife, state Sen. Angela Paxton, because a “strange man” made him fear for his safety; his attorneys say they didn’t know he’d be served the subpoena at his home.

U.S. District Judge Robert Pitman quashed the subpoena on Tuesday, but attorneys for the plaintiffs have asked him to reconsider and require Paxton to testify. Pitman has not yet ruled on that motion, or the merits of the case, which concerns whether nonprofit groups, known as abortion funds, can help Texans pay to get abortions out of state.

The lawsuit, filed in federal court in August, names Paxton as one of the defendants, and the plaintiffs sought to call him to testify at the preliminary injunction hearing Tuesday.

Four days before the hearing, on the morning of Friday, Sept. 23, Austin attorney Elizabeth Myers emailed assistant attorney general Amy Hilton, saying that since it was not clear whether Paxton intended to be at the hearing, they were going to issue a subpoena out of “an abundance of caution.”

“I assume you’d like for us to serve that through you, but will you please confirm by noon today that you will accept service,” Myers wrote. “Otherwise, we’ll start the personal service process. I’d really prefer not to have to do that, of course.”

Hilton did not confirm whether they could accept the subpoena on Paxton’s behalf, so the lawyers had a process server deliver the subpoena to Paxton’s office Friday afternoon, emails indicate.

But on Sunday, attorneys from the Texas attorney general’s office told Myers that the subpoena was invalid because it was served through Paxton’s office but sought to depose him in his individual capacity, according to the plaintiffs’ motion before Pitman.

Attorneys for the state said that Paxton would be represented in his official capacity at the hearing by assistant attorneys general, and “declined to clearly indicate whether they would accept a revised subpoena,” according to that motion.

“Myers then indicated that this meant General Paxton needed to be served personally, and Ms. Myers asked if General Paxton’s counsel knew where General Paxton was so that he could be located and served,” the filing reads.

The representatives from Paxton’s office declined to provide that information but said they would determine whether they could accept a subpoena on his behalf, the filing says. By Sunday evening, though, Hilton said they did not yet have an answer for the plaintiffs’ legal team.

“Please let me know ASAP if you are authorized to accept service so I can adjust our process server instructions,” Myers wrote in an email sent Sunday at 6:50 p.m.

The attorney general’s office acknowledged in a motion filed Tuesday that they were aware that the plaintiffs’ attorneys were going to attempt to serve Paxton with a subpoena. But they did not know that that meant they “intended to attempt personal service on Ken Paxton at his private residence.”

See here and here for the background. The story goes on from there, with the plaintiffs trying to get an answer from the AG’s office about how best they can do this totally normal procedural thing and getting stonewalled, then a flunky from the AG’s office whining about the plaintiffs doing what they said they would do if they couldn’t get an answer from them. It’s a level of clownishness from the AG’s office that even I hadn’t expected from them, which probably means I need to recalibrate my cynicism again. There was a time when I would have wondered if the people who keep defending Ken Paxton might be feeling even a little bit of shame at these displays, and then I remember that those people haven’t felt any shame since at least 2015, so there you have it. I don’t know what else there is to say.

More on the lawsuit against True The Vote

NPR takes a deep dive.

Konnech, a small Michigan company that makes election logistics software, says a “smear campaign” whipped up by the controversial group True the Vote has led to death threats and forced the company’s CEO to leave home in fear for his and his family’s lives. The company believes a driving force behind the threats is xenophobia; Konnech’s CEO immigrated to the U.S. from China in the 1980s and became an American citizen in 1997.

In the past, the executive of a relatively unknown company might have chosen to ignore such claims to try to deprive them of attention.

But in the wake of the conspiracy-fueled Jan. 6, 2021 attack on the U.S. Capitol, and in the era of QAnon and Pizzagate — bizarre and baseless theories that have contributed to very real violence — that strategy may no longer be tenable. The experience of the election technology company Dominion Voting Systems, which became the target of widespread conspiracy theories about the 2020 election, also underscored how wild claims could significantly damage a company’s business.

Just a few weeks after accusations against the company first surfaced, Konnech turned to the federal courts and filed a lawsuit. Konnech was “not going to take any chances and felt very strongly that it needed to act and act quickly,” said Jon Goldberg, a company spokesperson.

Konnech, which makes scheduling software for poll workers, joined a growing number of election officials and companies that have used defamation law to try to fight back against election-related conspiracies.

[…]

At an event in August dubbed “The Pit,” Engelbrecht and Phillips unveiled what they called the “Tiger Project,” which focused on Konnech. In interviews with far-right podcasters, Phillips has spun a cloak-and-dagger story that he compared to a James Bond movie, in which he helped uncover a supposed Chinese plot to infiltrate American elections.

In Phillips’ telling, he first heard about the company from “my guys” — unnamed “colleagues and friends” who invited him to their room in the Hilton Anatole hotel in Dallas one late night in January 2021.

“I get there and they’re putting towels, rolled up towels, under the doors and you know, and all my guys are armed,” Phillips said on the podcast “1819 News.”

Phillips said his colleagues showed him personal information for 1.8 million American poll workers, including “name, address, date of birth, Social Security number, banking information,” which supposedly was held on a server in China.

Konnech maintains that this claim is entirely false, and that all of its data on American customers is stored solely in the U.S.

After seeing this presentation, Phillips claims that he and Engelbrecht brought Konnech’s data to the FBI, which he claims then worked with them for more than a year on a supposed “counterintelligence” operation looking into Konnech. At one point, Phillips said he had a “secret squirrels” meeting with the FBI in Milwaukee to share information. Eventually, however, the FBI “completely betrayed us,” Phillips said, and told True the Vote that they were themselves under scrutiny from law enforcement.

True the Vote has not publicly provided evidence to support the claim of a “counterintelligence” operation along those lines, nor has NPR found any corroboration. The FBI did not respond to a request for comment.

See here for the background and be sure to read the rest. I love the idea that these clowns thought they were reporting a crime to the FBI when in fact they were telling on themselves. I just hope it leads to the conclusion that we all want to see.

Texas to appeal that ridiculous ruling that forbade banning handgun sales to those under 21

Good. Now we’ll see if their heart is in it.

Texas is gearing up to fight a judge’s ruling that the state can’t ban adults under 21 from carrying handguns, a move that’s drawing anger from some gun rights groups.

Last week, Attorney General Ken Paxton’s office filed a notice of an appeal of the ruling on behalf of the Texas Department of Public Safety. It came almost a month after U.S. District Judge Mark Pittman, who was appointed to the bench by former President Donald Trump, issued the original ruling on Aug. 25, writing that the Second Amendment protects all adults’ right to bear arms without an age limit. The suit was brought on by two plaintiffs within the 18-to-20 age range and the Firearms Policy Coalition Inc. against the state of Texas.

The notice, which includes Paxton’s name on the filing, did not say the ground on which it would base its appeal. Paxton’s office did not respond to a request for comment. A spokesperson for DPS said the agency does not comment on pending legal cases.

But in prior filings in the case, the state has argued that the law does not violate the Second Amendment as it is consistent with Texas’ “longstanding tradition” of restricting access to guns based on age.

See here for the background, and here for a reminder that Greg Abbott is either a bad lawyer, a bad liar, or both. A couple of gun-worship groups are quoted as being disappointed in this decision; I’m sure you can imagine my reaction. I’m glad that the state didn’t just punt on this, but I’ll want to see how they actually act before I give them any credit for it beyond that.

CCA tells Paxton again that he’s not the supreme prosecutor

Good, but this isn’t over. It just means that the fight will have shifted.

Best mugshot ever

Texas Attorney General Ken Paxton’s last-ditch attempt to regain the power of his office to unilaterally prosecute election cases was rejected by the state’s highest criminal court Wednesday.

The Court of Criminal Appeals instead upheld its previous ruling that says that the attorney general must get permission from local county prosecutors to pursue cases on issues like voter fraud. Paxton had been fighting to overturn that ruling as the issue of prosecuting election fraud has become fraught in recent years. Paxton sought to overturn the results of the 2020 presidential election and has aggressively pursued individual cases of fraud, outraging some voting rights advocates who see the punishments as too harsh for people who made honest mistakes.

Last December, eight of the nine members on the all-GOP court struck down a law that previously allowed Paxton’s office to take on those cases without local consent. The court said the law violated the separation-of-powers clause in the Texas Constitution.

In the aftermath, Paxton, joined by Gov. Greg Abbott and Lt. Gov. Dan Patrick, led a political push to get the court to reconsider its decision, warning that it would allow cases of fraud to go unpunished. His office filed a motion asking the Court of Criminal Appeals to rehear the case, vacate its previous opinion and affirm an appellate court’s judgment, which was in his favor.

The court’s decision Wednesday came with no explanation, though one judge wrote a concurring opinion.

“I still agree with our original decision handed down in December, when we recognized that the specific powers given to the Attorney General by the Texas Constitution do not include the ability to initiate criminal proceedings—even in cases involving alleged violations of the Election Code,” Judge Scott Walker wrote.

Two judges dissented in the case.

See here and here for the background. It’s good that the CCA was able to withstand the political pressure to change their ruling to something that sated Paxton’s blood lust, but that pressure isn’t going to just dissipate on its own. The usual suspects are now agitating for the Legislature to step in and change the law. As far as I can tell, the CCA made its ruling not on statutory grounds but on Constitutional grounds (*), and as such it would take a Constitutional amendment to change this. Which is good news because the Lege won’t have a two-thirds Republican majority in both chambers, which would be needed for this to happen. But that doesn’t mean they won’t try it anyway, and if it comes back through the courts again on those grounds, who knows what could happen. You know what the solution to this is, I don’t have to tell you. The Chron has more.

(*) Noted in some of the coverage of this is that the same ruling means that Paxton couldn’t unilaterally decide to pursue prosecutions of any abortion “crimes” he likes, either. The Lege is sure to work on bills that would allow DAs from other counties to prosecute such charges in the event that the DA of the county in question chooses not to, so that may not make much difference. That same logic might also apply to whatever “vote fraud” charges these guys want to include, too.

Uvalde parents file lawsuit against multiple defendants

Keep an eye on this one.

The first major lawsuit has been filed over the mass shooting at Robb Elementary School in Uvalde by the families of three surviving students.

“The horrors of May 24, 2022, were only possible because so many in positions of power were negligent, careless, and reckless,” Stephanie B. Sherman, the lead attorney in the case, said in a statement.

Defendants in the federal lawsuit include the Uvalde Consolidated Independent School District, the city of Uvalde, former school district Police Chief Pedro “Pete” Arredondo, suspended Uvalde Police Lt. Mariano Pargas and then-Robb Principal Mandy Gutierrez.

The families also are suing Daniel Defense, the Georgia manufacturer of the assault-style rifle Salvador Ramos, 18, used in the massacre; gun accessory maker Firequest International Inc., over a mechanism that makes a semi-automatic rifle fire like an automatic; Uvalde gun shop Oasis Outback LLC, which transferred guns Ramos purchased online to the mass shooter; lock manufacturer Schneider Electric, over alleged problems with locks on Robb Elementary doors; and Motorola Solutions, over issues with a dispatch communications system that complicated the police response.

Another defendant: an unknown company, John Doe Company 1, that the lawsuit said the district contracted with to ensure security measures were in place and effective.

The 81-page lawsuit, filed in Del Rio, accuses most defendants of negligence, inaction or defective products or systems that enabled Ramos to buy the firearm, ammunition and gun accessories he used to kill 19 students and two teachers. He wounded 16 others.

[…]

“Due to the conduct of the school and police, and the deliberate choices of the gun makers and sellers to directly market their lethal weapons to young untrained civilians, the shooter bought and assembled a military grade assault weapon with 30-round magazines days after his 18th birthday…,” the lawsuit said.

The plaintiffs include Corina Camacho, the mother of G.M., a 10-year-old boy who was shot in the leg in classroom 112; Tanisha Rodriguez, the mother of G.R., a 9-year old girl who was playing with classmates on the playground when Ramos began firing; and Selena Sanchez and Omar Carbajal, the parents of D.J., an 8-year-old boy who saw the shooter firing as the boy headed from the gym to the nurse’s station.

Sherman and Monique Alarcon, Texas-based attorneys for the Baum Hedlund law firm of California, and attorney Shawn Brown of San Antonio allege a host of civil claims, including intentional infliction of emotional distress, product liability and violations of due process, among others.

The suit seeks undetermined compensatory damages against all defendants and punitive damages against all the defendants except the school district and the city.

There was a class action lawsuit announced in August that perhaps hasn’t been filed yet. The intended defendants are roughly the same, but I see in those earlier stories that there was no mention of who the plaintiffs were, and I believe that’s because the final paperwork hasn’t been filed yet. Of greatest interest to me is the inclusion of the gun manufacturer and sellers – there’s a legal example to follow, but I don’t know how effective it will be. Let’s just say that I wish these plaintiffs, and those who follow them, a lot of luck. The Trib has more.

The hearing that Paxton was trying to flee from

It’s about whether the First Amendment rights of abortion funds have been abridged by threats of prosecution from people like Ken Paxton. You know, no big deal.

Leaders of Texas’ most prominent abortion funds on Tuesday implored a federal judge to give them clearance to resume providing assistance to people seeking abortions in states where the procedure is legal.

The funds filed the class-action suit in August seeking to block state and local prosecutors from suing them if they get back to work offering Texans funding and support for travel, lodging, meals and child care, among other expenses incurred while they obtain abortions. On Tuesday, they sought to temporarily block any potential prosecutions until the case is decided.

The groups halted abortion support operations in June after the Supreme Court issued its decision this summer overturning federal protections for the procedure. The decision also led clinics throughout the state to stop providing abortion services.

The legal battle carries immense implications for thousands of Texans seeking abortions, who will inevitably incur higher costs as they depend on other states due to Texas’ near-total abortion ban. Studies show the vast majority of pregnant people pursue abortion for financial reasons, and most who obtain abortions are low-income people of color.

Texas Attorney General Ken Paxton, a Republican, is named as a defendant in the suit, as well as a number of county and district attorneys who are responsible for enforcing the state’s abortion bans. Some local prosecutors in liberal-leaning counties have pledged not to prosecute, while others in redder counties have said they will.

The plaintiffs point to “myriad threats” of prosecution by the attorney general “and his associates,” including social media posts, statements and cease-and-desist letters sent by members of the hard-line conservative Texas Freedom Caucus to corporations.

Caucus member and Deer Park Republican state Rep. Briscoe Cain has also sent similar letters to Texas abortion funds, including plaintiff organizations, saying their donors, employees and volunteers are subject to prosecution under the pre-Roe statutes, according to the suit.

The Texas Supreme Court ruled in July that the state’s pre-Roe statutes, which make it illegal to “(furnish) the means for procuring an abortion,” are enforceable.

The plaintiffs also cited an advisory issued by Paxton just hours after the Dobbs decision was announced that stated the pre-Roe statutes could be enforced by district and county attorneys immediately.

[…]

The abortion funds claim in their suit that charitable donations are a protected form of freedom of speech and association under the First Amendment, but the possibility of debilitating litigation has chilled their exercise of those rights. It has also, they argue, scared some donors out of giving freely to the group.

“Despite their strong desires and commitment to assisting their fellow Texans, Plaintiffs will be unable to safely return to their prior operations until it is made clear that Defendants have no authority to prosecute Plaintiffs or seek civil penalties from them for their constitutionally protected behavior,” they state in the suit.

See here for some background, and I’ll get back to this in a minute. The Trib adds some details.

They have asked U.S. District Judge Robert Pitman for a preliminary injunction that would stop Paxton from pursuing criminal charges or civil penalties against abortion funds. The state has countered that their fear of prosecution is “self-imposed,” as the attorney general cannot bring criminal charges and the law that allows him to bring civil penalties does not apply to abortion funds.

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly.

Pitman is expected to rule on the request for a preliminary injunction in the coming weeks but in the meantime is also considering a motion to require Paxton to testify himself. Before the hearing Tuesday, Pitman quashed a subpoena seeking the attorney general’s testimony, but lawyers for the plaintiffs have asked him to reconsider. Paxton fled his home Monday to avoid being served with the original subpoena.

The lawsuit also seeks clarity on whether a Texas-based abortion provider can perform abortions for Texans in other states where the procedure remains legal, or provide telehealth services from Texas to patients in other states.

On that question, the attorney for the state was even less definitive about whether the attorney general would try to enforce the civil penalties in the law, saying that situation was not amenable to a clear “up or down” answer but would have to be handled on a case-by-case basis.

[…]

But all of that changed when the U.S. Supreme Court overturned Roe v. Wade in late June, allowing states to set their own laws on abortion. Immediately, Paxton issued guidance that said prosecutors could “immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.”

“Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today,” Paxton wrote.

But those pre-Roe statutes don’t criminalize just abortion providers — they also criminalize anyone who “furnishes the means” for an abortion, punishable by up to five years in prison.

Immediately, abortion funds in Texas stopped their operations, citing confusion over whether paying for abortions out of state constituted furnishing the means for an illegal abortion. As the leaders of several abortion funds testified to on Tuesday, they were particularly alarmed by Paxton’s statement that his office would “assist any local prosecutor who pursues criminal charges.”

Their fears were exacerbated, according to testimony, when a group of conservative lawmakers in the Texas House, including Cain, issued a letter to Sidley Austin, a prestigious law firm that had offered to pay for its Texas-based employees to travel out of state to get abortions. In the letter, the lawmakers threatened the law firm with criminal prosecution for their actions.

Based on these indications from Paxton and lawmakers, “we believed we would be prosecuted, to be frank,” Anna Rupani, the executive director of Fund Texas Choice said Tuesday.

This freeze on their work came with other consequences, according to Tuesday’s testimony. Several of the funds said they had lost donors or had to spend more time reassuring donors who were confused and worried. Some said they had lost staff or board members over fear of criminal prosecution.

Lawyers for the state, though, argued that this chilling effect was “self-imposed” and “unreasonable.” None of the people the abortion funds cited threats from — Cain, the other legislators or Paxton himself — have the ability to bring criminal charges against anyone.

Only district and county attorneys can bring criminal charges in Texas; the prosecutors named on this lawsuit have agreed not to press charges against abortion funds for paying for out-of-state abortions until the case is fully resolved.

Paxton, though, still has the ability to pursue civil cases and, in the case of Texas’ more recent abortion laws, is actually required to by state statute.

To me, the most salient fact of this case is this, and here I quote from my earlier post: “[I]n their amicus brief to a writ of mandamus that blocked a lower court order that would have enjoined the 1925 state law criminalizing abortion, 70 Republican legislators argued that criminal penalties should apply to people who help others get an abortion.” I Am Not A Lawyer, but it seems to me that a very credible threat of being thrown in jail for your political advocacy is a First Amendment issue. That said, I think we all know what will happen here: Judge Pitman will grant the restraining order, and the Fifth Circuit will block it for no good reason. And so back to SCOTUS we go, and I sure hope they enjoy being constantly dragged into every abortion fight that they said should have been a state issue. What happens from there, I have no idea.

Run, Kenny, run!

Peak Ken Paxton.

Best mugshot ever

Texas Attorney General Ken Paxton fled his home in a truck driven by his wife, state Sen. Angela Paxton, to avoid being served a subpoena Monday, according to an affidavit filed in federal court.

Ernesto Martin Herrera, a process server, was attempting to serve the state’s top attorney with a subpoena for a federal court hearing Tuesday in a lawsuit from nonprofits that want to help Texans pay for abortions out of state.

When Herrera arrived at Paxton’s home in McKinney on Monday morning, he told a woman who identified herself as Angela that he was trying to deliver legal documents to the attorney general. She told him that Paxton was on the phone and unable to come to the door. Herrera said he would wait.

Nearly an hour later, a black Chevrolet Tahoe pulled into the driveway, and 20 minutes after that, Ken Paxton exited the house.

“I walked up the driveway approaching Mr. Paxton and called him by his name. As soon as he saw me and heard me call his name out, he turned around and RAN back inside the house through the same door in the garage,” Herrera wrote in the sworn affidavit.

Angela Paxton then exited the house, got inside a Chevrolet truck in the driveway, started it and opened the doors.

“A few minutes later I saw Mr. Paxton RAN from the door inside the garage towards the rear door behind the driver side,” Herrera wrote. “I approached the truck, and loudly called him by his name and stated that I had court documents for him. Mr. Paxton ignored me and kept heading for the truck.”

Herrera eventually placed the subpoenas on the ground near the truck and told him he was serving him with a subpoena. Both cars drove away, leaving the documents on the ground.

On Twitter, the attorney general said his sudden departure was motivated by concerns for his family’s safety.

“It’s clear that the media wants to drum up another controversy involving my work as Attorney General, so they’re attacking me for having the audacity to avoid a stranger lingering outside my home and showing concern about the safety and well-being of my family,” he wrote in a tweet.

You can see the affidavit here. I mean, seriously. If this had been a story in The Onion, I’d have rolled my eyes at it for being too on the nose. All this because Paxton was too much of a weenie to give a deposition in a lawsuit that had little to do with him. Other people have righteously mocked Paxton for his Brave Sir Robin impression, and now I will as well.

I think I’m done now. What a miserable, sniveling coward Ken Paxton is. The kindest thing we can all do for him now is to vote for Rochelle Garza, so that he and his family can go back home.

More on the DeLorean reboot company and its interesting legal history

Another prestige podcast in the making, I suspect.

Six months after DeLorean Motors Reimagined, the startup seeking to produce a new incarnation of the 1980s sports car, said it would put is headquarters in Texas, a lawsuit filed against the company has thrown a potential wrench in its gears.

In the lawsuit filed this month, Karma Automotive, based in Irvine, Calif., and owned by a Chinese conglomerate, alleges that DeLorean Motors Reimagined was created based on intellectual property that its founders stole while working for Karma.

While the plaintiff’s claims could be difficult to prove, the timing of DeLorean Motors’ founding in relation to its lead executives’ tenure at Karma could appear suspicious enough to compel attempts to negotiate a settlement, a legal expert said.

And that’s not the only red flag surrounding this DeLorean entity, which is intertwined with a similarly named Humble-based company — DeLorean Motor Co. — founded about 30 years ago with its own history of being sued over intellectual property claims. The Humble company’s claim to the DeLorean name is key to the two companies’ joint venture.

DeLorean Motors Reimagined, which located its headquarters to San Antonio, has a cloudy background to go with a somewhat muddled identify. It hasn’t disclosed information about its investors or working capital even as San Antonio and Bexar County officials granted the company more than $1 million in incentives and tax breaks,. And while DeLorean Motors Reimagined is incorporated separately from DeLorean Motor Co., the former generally identifies itself as the latter, such as on its website and in a Super Bowl ad that accompanied its launch.

So far, the only plans DeLorean Motors Reimagined has announced involve producing 88 models of its pricey Alpha5 coupe two years from now. Still, CEO Joost de Vries said the startup will soon become a publicly traded company.

It’s also not clear whether the combined DeLorean entity ever bought the intellectual property rights of John Z. DeLorean’s original 1970s-era company, although a 2014 settlement agreement has apparently shielded it from lawsuits.

See here and here for the background. At this point, I’d be leery about the prospect of any cars actually mike it off their production lines. But if they do, they will come with quite the backstory. Read the rest and see for yourself.

Three migrants sue Ron DeSantis

I’m venturing a little from the core mission of covering Texas politics, but this was too irresistible, and there is a Texas connection.

Three Venezuelan migrants flown from San Antonio to Martha’s Vineyard last week filed a federal class-action lawsuit against Florida Gov. Ron DeSantis and other Florida officials Tuesday after the firebrand Republican’s move to transport migrants to a Democrat-controlled state sparked national controversy and a criminal investigation.

The lawsuit alleges the migrants were tricked into traveling on the airplane with false promises of money, work, housing and food.

DeSantis and other officials “designed and executed a premeditated, fraudulent, and illegal scheme centered on exploiting this vulnerability for the sole purpose of advancing their own personal, financial and political interests,” the suit claims.

DeSantis sent the planes to Martha’s Vineyard last week, mimicking Texas Gov. Greg Abbott’s monthslong practice of busing migrants to Democrat-led cities.

The suit alleges an elaborate scheme of unidentified individuals who lured migrants to travel on the planes. This included providing hotel rooms, McDonald’s gift cards, hundreds of dollars in cash and false promises of their ultimate destination. Migrants on the flight last week said a woman going by the name of Perla approached them outside San Antonio’s Migrant Resource Center and promised them jobs and shelter. Some said they were told they were going to Boston. But they arrived in Martha’s Vineyard, where local officials were caught off guard.

Republicans frequently refer to those taking the trips as “illegal immigrants,” but many of them are asylum-seekers who have been allowed to enter the country pending the outcome of their legal cases.

The suit says the unidentified individuals identified and targeted the migrants “by trolling streets outside of a migrant shelter in Texas and other similar locales, pretending to be good Samaritans offering humanitarian assistance.”

The migrants are asking to be awarded damages, as well as an injunction blocking DeSantis and the state from coercing immigrants to travel by “fraud and misrepresentation.”

See here for a bit of background. To really appreciate the absurdity of all this, as well as to highlight the Texas connection, here’s Josh Marshall:

This new video of Ron DeSantis’s 10th explanation of who he was funding in Texas really has to be seen to be believed. (Video below.) He says that he can’t ship migrants from Florida, as the state legislature authorized money to do, because there aren’t enough migrants coming into the state. There’s no “mass movement”. It’s just one or two people at a time driving to Florida. There’s no way to deal with that efficiently because there aren’t enough people. (Needless to say, however people are entering the state, if the state is overrun you just pick them up locally.) But, he says, he has “intelligence” operatives in Texas and they have learned that from “30% to 40%” of migrants in Texas intend to come to Florida.

In other words, there’s a tidal wave of people apparently about to come. Just not yet. Follow? Good.

So what to do? The most efficient way to deal with this is to go to Texas, profile people who seem likely to later come to Florida and fly them to states run by Democrats. That means “the chance they end up in Florida is much less.”

I guess if you want to be really, really generous you might say that people might be less willing to get bamboozled into being flown north if they’re already in Florida where they want to be as opposed to in Texas. But I think it goes without saying that the cost and inefficiency of the DeSantis plan is great enough to eliminate any benefit. And also: if you hoodwink migrants into going to Boston they can also just get on a bus to go to Florida. San Antonio to Miami is almost as far as Boston to Miami.

The barbarity of DeSantis’s actions should not obscure the hilarity of what is clearly an after the fact explanation of what happened and why? We can be pretty confident that the reason he’s resorting to this explanation is because he really, really doesn’t want to discuss who he’s working with in Texas. What individuals? What activist groups? Again, the explanation is absurd on its face. There’s no mass migration of migrants into Florida. So to move them at scale you need to get them in Texas and send them north.

As Marshall put it on Twitter, the “logical next step for DeSantis is to lure people in Caracas on to planes &ship them to Boston to truly prevent them from getting to Florida.” We truly live in amazing times.

Do I think this is likely to ever see the inside of a courtroom, let alone get to a trial or settlement? No, I seriously doubt it will survive a motion to dismiss. But it at least has accomplished the task of putting some focus on just how deranged and inhumane this stunt was. And maybe, the more DeSantis talks, the better it will be for Sheriff Salazar’s investigation. Daily Kos and Vice News have more.

District court judge dismisses State Bar complaint against Brent Webster

This is a bad ruling, and it needs to be appealed.

A Texas district judge has dismissed a professional misconduct lawsuit against a top aide of Attorney General Ken Paxton seeking to discipline them for their effort to overturn the 2020 presidential election.

Milam County Judge John W. Youngblood ruled last week that his court lacked the jurisdiction to rule on the matter, agreeing with the attorney general’s argument that doing so would violate the separation of powers doctrine by interfering in an executive branch matter.

“To find in the commission’s favor would stand for a limitation of the Attorney General’s broad power to file lawsuits on the state’s behalf, a right clearly supported by the Texas Constitution and recognized repeatedly by Texas Supreme Court precedent,” Youngblood wrote.

A similar case filed by the State Bar against Paxton is still before a Collin County judge and has not yet been decided.

[…]

Jim Harrington, a member of Lawyers Defending American Democracy, a coalition of lawyers including two former State Bar presidents, who filed a friend-of-the-court brief in support of the State Bar, called the ruling a “legal charade.” The group also filed complaints that prompted the bar to file suits against Paxton and Webster.

“The logic of the judge’s decision is that, if a lawyer works for the Attorney General, there is no way to hold the lawyer accountable for ethical violations and professional misconduct,” Harrington said in a statement. “In other words, the attorney general’s office is above the law. That is contrary to the principle of the Constitution, and we hope the State Bar will appeal the ruling.”

Ratner, a co-founder of the group and a Maryland attorney, said he, too, was disappointed in the ruling and added that it misconstrued the premise of the suit.

“While separation of powers authorizes the Attorney General to decide what lawsuits to file on the State’s behalf, we believe it does not authorize him to make misrepresentations and dishonest statements to a court in violation of his duties as a Texas-licensed lawyer,” Ratner said. “That’s what’s involved here.”

See here for the background, and here for a copy of the letter the judge sent. Not a formal opinion, though I suppose he could still write one, just a one page letter. Obviously, if this judge fully bought into Ken Paxton’s sleazy and self-serving line of defense, it doesn’t bode well for the complaint against him. I think Jim Harrington has this exactly right, and I hope the State Bar has the wisdom and the guts to appeal this. Anything less would be a dereliction of their duty. The Trib has more.

Ken Paxton keeps trying to kill the SAISD vaccine mandate

On brand, always on brand.

Texas Attorney General Ken Paxton has filed another petition seeking to reverse a Bexar County judge’s decision that rejected the state’s bid for a temporary injunction to block the San Antonio Independent School District’s staff vaccine mandate.

Even though SAISD’S vaccine mandate remains on pause despite the court’s ruling in its favor, Paxton said he will “continue fighting for medical freedom.”

“Nobody should be bullied, coerced, and certainly not fired because of their COVID-19 vaccination status,” said Paxon in his announcement, adding the decision is not only an affront to individual liberty, but “illegal under Texas law.”

“The governor’s executive order specifically protects workers from the type of mass firings that San Antonio ISD is seeking, and I will continue to fight in court to defend GA-39 and Texans’ medical freedom,” he said.

The petition was filed Sept. 7 with the Texas Supreme Court.

An SAISD spokeswoman said in a statement that the vaccine mandate remains suspended and that no employee was ever disciplined for refusing to get the vaccine.

See here and here for the previous updates. There’s a recitation of the long history of this legal saga in the story if you want that. I remind you that this mandate was never enforced and remains on pause, not that these things matter to Ken Paxton. The appellate court ruling that Greg Abbott doesn’t have the power he claimed to have when he forbade these mandates seems pretty clear to me, but you never know what SCOTx will do. Now we wait to see if they’ll take this up.

Fifth Circuit upholds Texas’ ridiculous social media censorship law

Back to you, SCOTUS.

A Texas law prohibiting large social media companies from banning users’ posts based on their political viewpoints will go into effect after a federal appeals court on Friday lifted a block placed on the statute.

NetChoice and the Computer & Communications Industry Association sued Texas after the law, known as House Bill 20, was passed last year, arguing that internet companies have a First Amendment right to curate content posted on their platforms and decide which types of speech they saw fit to be there.

In its ruling, the 5th U.S. Circuit Court of Appeals disagreed with the plaintiffs’ argument that the law was unconstitutional, saying they were seeking protection to “muzzle free speech.”

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the ruling says.

The CCIA said the ruling forced tech companies to give equal treatment to all manners of speech, including extremist views.

“We strongly disagree with the court’s decision. Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk,” the group said. “‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”

See here for the previous update, in which SCOTUS blocked the law pending the Fifth Circuit’s ruling on the appeal, and here for a copy of the opinion. I think this sums it all up:

You and me both. We’ve now reached that point, and as everyone expects this to be appealed it will be back to SCOTUS for the final word. I have no idea what to expect. The Chron has more.

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

Good.

Texas’ child welfare agency is once again blocked from investigating parents who provide gender-affirming care to their transgender children. The injunction applies to any family that belongs to PFLAG, an LGBTQ advocacy group with more than 600 members in Texas.

The injunction also specifically protects a handful of families named in the suit, including the Briggles, outspoken advocates for transgender youth who were among the first to be investigated under this directive.

This is the latest chapter in a monthslong legal battle over whether providing medically indicated gender-affirming health care, under the guidance of a doctor, could result in a finding of child abuse by the state.

In February, following a nonbinding legal opinion from Attorney General Ken Paxton, Gov. Greg Abbott directed the Department of Family and Protective Services to investigate parents who provide gender-affirming care to their transgender children.

The Texas Supreme Court has ruled that Abbott had no grounds to direct DFPS to investigate these families but overturned a statewide injunction on procedural grounds.

The American Civil Liberties Union and Lambda Legal brought another lawsuit after that first injunction was overturned, seeking protections on behalf of all members of PFLAG. Travis County District Judge Amy Clark Meachum granted that injunction Friday, three months after hearing arguments.

See here for the previous update and here for a copy of the ruling. This injunction will benefit a lot more families as noted by the story, but we know that it will be appealed and ultimately the Supreme Court will have the final word, so celebrate responsibly. Assuming it hasn’t been mooted by that point, there will be a trial on the merits in Judge Meachum’s court next June. The ACLU, Lambda Legal, Amber Briggle, and the Chron have more.

Paxton to be deposed in Servergy-related lawsuit

This gets into some deep lore about the Paxton crime saga.

Best mugshot ever

Attorney General Ken Paxton will face lawyers for the men who accused him of securities fraud seven years ago in a one-hour deposition after the November elections.

The Dallas Morning News reported Thursday that Collin County District Court Judge Cynthia Wheless ordered Paxton to sit for the deposition on Nov. 28, three weeks after the culmination of Paxton’s reelection race. He is running against Democrat Rochelle Garza.

Paxton did not immediately respond to requests for comment through his government or campaign offices. Phil Hilder, the lawyer representing Paxton in his securities fraud case, declined comment.

[…]

The deposition is part of a lawsuit that is separate but related to the seven-year-old securities fraud indictment in which two men, Byron Cook and Joel Hochberg, accuse Paxton of encouraging them to invest in McKinney-based technology company Servergy Inc., without disclosing he would make a commission from those investments. Cook is a former state legislator who served in the Texas House with Paxton.

A year after Paxton was indicted on three felony charges alleging securities law violations, an associate of his, Charles “Chip” Loper III, sued Cook and Hochberg, accusing them of creating a scheme to profit off the investment funds of Unity Resources, a mineral assets company. Loper said the scheme hurt him and his father financially.

Cook and Hochberg’s lawyers said that lawsuit was retaliatory. Last year, they were able to add Paxton as a “responsible third party” to the case by arguing that he was also an investor and the company’s lawyer. As such, they said, Paxton should be held responsible for any alleged wrongdoing.

In a deposition in the Unity case, Cook and Hochberg’s lawyers can ask Paxton about his other securities fraud case.

Here’s the origin story of this part of the crime timeline. This branch eventually led to SEC charges that Paxton subsequently beat; you will note that the SEC took two cracks at him. The lawsuit that this story is based on is one of two that were later filed by Paxton buddies against Cook and Hochberg. The other was filed by Paxton’s pastor, a fellow named Mike Buster. I had completely forgotten about all of that – those two lawsuits were filed in 2017, which is to say approximately 372 years ago – and as far as I can tell from my archives this is the first update I’ve seen since then. I have no idea what to expect, and I’m a little confused by the reference to Paxton’s “other securities case” in the story. I suppose it means the federal case that got dismissed, but who knows. We’ll find out a bit after Thanksgiving, I hope.

Lawsuit filed against True the Vote

Oh, this will be fun to watch.

A defamation and computer fraud lawsuit filed this week against Texas-based True the Vote asks a judge to essentially determine whether the election-integrity group’s campaign against a small election vendor constitutes slanderous lies or a participation in criminal acts.

The suit was brought by Konnech Inc., a small elections logistics company based in Michigan. It alleges that True the Vote and its followers launched a stream of false and racist accusations against the company’s founder, forcing him and his family to flee their home in fear for their lives and damaging the company’s business. The suit cites True the Votes’ public claims that it hacked the company’s servers and accessed the personal information of nearly 2 million U.S. poll workers.

In a rare move, the judge granted Konnech’s request for a temporary restraining order against Catherine Engelbrecht and Gregg Phillips, leaders of True the Vote, a nonprofit organization known for making allegations of voter fraud without evidence to support their claims. Judge Kenneth Hoyt of the U.S. District Court for the Southern District of Texas found a “substantial likelihood” that Konnech would “suffer irreparable injury” without it. The order also prohibits True the Vote from accessing, or attempting to access, Konnech’s computers or disclosing any of the company’s data and orders the group to disclose more information about the alleged breach.

Experts told Votebeat the damage done through the spread of conspiracy theories about election software companies such as Konnech by groups like True the Vote could impact the already limited tools available that help election officials hire, train and schedule election workers.

True the Vote has for years claimed that voting machines are not secure and that U.S. elections are increasingly fraudulent but has offered little evidence, and its claims have failed to stand up to basic scrutiny. Konnech’s lawsuit specifically names Engelbrecht, True the Vote’s founder, and Phillips, a board member, saying that they “have intentionally, repeatedly, and relentlessly attacked” Konnech, and its founder, Eugene Yu, with a “unique brand of racism and xenophobia.”

Engelbrecht and Phillips, for example, repeatedly called Yu a “Chinese operative” who was spearheading a “Red Chinese communist op run against the United States.”

“On August 27, 2022, True the Vote posted an article claiming that Konnech is ‘owned by the Chinese Communist Party,’ even though Konnech is owned by U.S. citizens who are not affiliated with the Chinese Communist Party, and claiming that Konnech is involved in the ‘subversion of our elections’ which is tantamount to falsely accusing Konnech of election fraud, treason, and espionage,” the complaint states.

True the Vote named its campaign targeting Konnech and Yu the “Tiger Project.”

[…]

The fact that a federal judge granted the temporary restraining order under the case’s circumstances is significant, said Peter Vogel, a Texas litigation attorney who specializes in cybersecurity and information technology. Federal judges rarely grant injunctions without allowing a defendant to present evidence, he said.

“So that tells me that there must be very persuasive evidence for a federal judge to grant a temporary restraining order without having the other side be present,” Vogel said

Vogel also has decades of experience as a computer programmer and has examined electronic election systems for the Texas secretary of state’s office.

Another significant aspect of the order, he said, is the relatively low level of bond the judge required Konnech to post: just $100. The bond usually protects the enjoined parties from any damage.

“This tells me the judge doesn’t think there’s any damage to the defendant.” Vogel said.

TTV sure has been making the news lately. None of this story is a surprise – I mean, really, what did you expect? – but it sure could be a rude awakening for them. Later in the story comparisons are made to the lawsuits filed by the likes of Dominion and Smartmatic against various bad actors in the media and the greater Trump orbit, and if the allegations are true then I think they’re going to be in a world of hurt. And boy howdy, could it not have happened to a nicer and more deserving bunch. There’s a hearing scheduled for September 26, so hopefully we’ll learn more soon.

The next ridiculous lawsuit we’re all going to have to endure

Grit your teeth, here it comes.

A University of Texas at Austin professor has sued Texas A&M University claiming a new faculty fellowship program designed to increase diversity at the flagship university in College Station discriminates against white and Asian male candidates.

Richard Lowery, a finance professor at UT-Austin who is white, filed the federal class-action lawsuit on Saturday against the Texas A&M University System and its board of regents, Annie McGowan, Texas A&M’s vice president and associate provost for diversity, and N.K. Anand, Texas A&M’s vice president for faculty affairs.

Lowery is represented by America First Legal, a group created by Stephen Miller, a policy advisor for former President Donald Trump, and Jonathan Mitchell, a former solicitor general for Texas and the legal architect of Texas’ six-week abortion ban.

In the lawsuit, Lowery claims that a new fellowship program announced this summer within Texas A&M’s faculty hiring program called the Accountability, Climate, Equity and Scholarship Faculty Fellows program, or ACES, violates Title VI and Title IX, of the federal Civil Rights Act as well as the 14th Amendment’s equal protection clause.

While the ACES program focuses on hiring recently graduated PhD students who want to enter academia, the new ACES Plus Program focuses on “mid-career and senior tenure-track hires from underrepresented minority groups, that contribute to moving the structural composition of our faculty towards parity with that of the State of Texas.” It sets aside $2 million over the next two fiscal years to help match a fellow’s base salary and benefits, up to a maximum of $100,000.

According to Texas A&M’s announcement of the new fellowship program on July 8, the university identified under-represented minority groups as African Americans, Hispanic/Latino Americans, Native Americans, Alaskan Natives, and Native Hawaiians.

“Texas A&M’s proclaimed goal of establishing a faculty whose racial composition attains “parity with that of the state of Texas” seeks to achieve racial balancing, which is flatly illegal under Title VI and the binding precedent of the Supreme Court,” the lawsuit argues.

And that was as far as I got in the article before my monitor spontaneously combusted in a heroic but ultimately futile effort to preserve my sanity. I would like for there to be some new main characters in the Texas news now.

It’s the year 2022 and we’re still litigating the Affordable Care Act

Isn’t this horse dead yet?

A federal judge in Fort Worth agreed Wednesday with a group of Christian conservatives that Affordable Care Act requirements to cover HIV prevention drugs violate their religious freedom.

U.S. District Judge Reed O’Connor also agreed that aspects of the federal government’s system for deciding what preventive care is covered by the ACA violates the Constitution.

O’Connor’s ruling could threaten access to sexual and reproductive health care for more than 150 million working Americans who are on employer-sponsored health care plans. It is likely to be appealed by the federal government.

This lawsuit is the latest in a decade of legal challenges to the Affordable Care Act, many of which have run through O’Connor’s courtroom. In 2018, O’Connor ruled that the entirety of the ACA was unconstitutional, a decision that was struck down by the U.S. Supreme Court.

At issue in the class-action lawsuit is a 2020 mandate requiring health care plans to cover HIV prevention medication, known as PrEP, free of charge as preventive care.

In the suit, a group of self-described Christian business owners and employees in Texas argue that the preventive care mandates violate their constitutional right to religious freedom by requiring companies and policyholders to pay for coverage that conflicts with their faith and personal values.

The lawsuit was filed in 2020 by Austin attorney Jonathan Mitchell, the legal mind behind Texas’ civilly enforced six-week abortion ban. In the suit, Mitchell also challenges the entire framework through which the federal government decides what preventive services get covered.

O’Connor threw out several of Mitchell’s arguments but agreed that the U.S. Preventive Services Task Force’s system for deciding what health care services are required to be fully covered under the ACA violates the Appointments Clause of the U.S. Constitution.

“At a high level, this lawsuit is part of a larger pushback against the government’s ability to regulate,” said Allison Hoffman, a law professor at Penn Carey Law at the University of Pennsylvania. “And then also asking what happens when regulations and religion clash.”

[…]

The lawsuit specifically addresses PrEP, but O’Connor’s ruling, which addresses how the federal government can decide what preventive care is covered in employer health care plans, may end up having much more wide-reaching consequences, Hoffman said.

“We’re talking about vaccines, we’re talking about mammograms, we’re talking about basic preventative health care that was being fully covered,” she said. “This is opening the doors to things that the ACA tried to eliminate, in terms of health plans that got to pick and choose what of these services they fully covered.”

The American Medical Association, along with 60 leading medical organizations, issued a statement condemning the lawsuit.

“With an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, diabetes, preeclampsia, and hearing, as well as access to immunizations critical to maintaining a healthy population,” the organizations wrote.

While implementation has not been as universal as hoped, fully funded preventive care through the ACA has been shown to be largely effective at improving health outcomes, reducing health care spending and increasing uptake of these services.

It’s a familiar set of villains, including the hand-picked judge, making the same kind of tired arguments about how “Christians” deserve to be exempt from laws they don’t like, even at the expense of literally everyone else’s health. And while SCOTUS has regularly batted aside these malicious lawsuits, I don’t have any faith they’ll do the same this time. TPM, Reform Austin, and The 19th have more.

SCOTx maintains judicial bypass rules for abortion

Good news.

The Texas Supreme Court has opted to keep in place a legal process that allows minors to seek a judge’s approval to have an abortion without parental consent, though state law now bans the procedure in most circumstances.

Chief Justice Nathan Hecht had asked an advisory committee to the high court to make a recommendation on the matter last month, citing the U.S. Supreme Court ruling in June that overturned federal protections for abortion as the reason for the reconsideration.

The committee unanimously voted to keep in place the process, known as judicial bypass, and add new language spelling out that it will only be available to minors in the extremely limited circumstances allowed by Texas law: when their life or major bodily functions are at risk.

See here and here for the background, and here for the actual rules. I’m glad to see that my initial fear that this would be a disaster was off base. That said, while this is good news it’s not great news, and that’s because the judicial bypass process is even rarer than it was before the Lege passed that vigilante bounty hunter law. As the story notes, in the last month before that law was passed, 20 minors were able to obtain a bypass. In the first month after it passed, that number was two. I guarantee you, the need for this didn’t drop by ninety percent. Just the ability to get the care these girls need. The fact that it didn’t fall all the way to zero counts as a win these days.

Comptroller caves on phony “defunding” claim

In the end, he folded like a lawn chair.

Harris County is moving through the process of passing a fiscal 2023 budget with a 1 percent dip in the property tax rate, after the specter of the state blocking its approval eased in a Travis County courtroom Tuesday.

Prospects for approval of that $2.2 billion budget and the new tax rate next week remain unknown, however, hinging on whether enough members of Commissioners Court show up.

Texas Comptroller Glenn Hegar, despite recently threatening to block Harris County’s proposed budget over its alleged defunding of law enforcement, has not formally determined that the county violated state law or otherwise taken action to prevent county leaders from adopting a budget for the upcoming fiscal year, a state attorney said in court Tuesday.

The acknowledgment came as part of a county lawsuit challenging Hegar’s claims, including those from a letter last month in which the Republican comptroller told county officials they would need voter approval to pass their budget for the fiscal year starting Oct. 1.

Commissioners Court moved ahead with its budgeting process in the meantime, meeting Tuesday to consider the county’s property tax rate — a procedural step before the court can vote on next year’s budget. Officials first must propose the tax rate, the step taken Tuesday, then hold a public hearing, scheduled for Sept. 13. At that meeting, provided enough commissioners show up, the court can approve the rate and the budget.

On a 3-2 vote, the court on Tuesday proposed the overall tax rate for the county — comprising four rates covering county operations, the Harris Health system, the flood control district and the Port of Houston — at 57.5 cents per $100 of assessed value. That represents about a 1 percent decrease from the current rate of 58.1 cents per $100.

[…]

In an emergency hearing before Travis County state District Judge Lora Livingston, attorney Will Thompson of the Texas Attorney General’s Office — which is representing Hegar and Gov. Greg Abbott in the lawsuit by the county — said the dispute “may be a situation where there’s much ado about nothing and the parties are in more agreement than they realize.”

“The comptroller just has not made a final determination,” Thompson said. “He has not done anything that binds Harris County at this stage. Harris County remains free to adopt a budget, in its normal process, following its normal rules for having public meetings and things like that.”

Instead of ruling on Harris County’s request for a temporary order preventing Hegar from blocking Harris County’s budget, Livingston told attorneys for the county and state to, essentially, put Thompson’s comments in writing in a formal court filing. She gave the two sides until Wednesday afternoon to submit the document.

The statement from Thompson came a week after Harris County Administrator David Berry sent Hegar a letter asking him to clarify whether he had “made or issued a determination that Harris County’s proposed budget violates the law” or prevented the county from adopting a budget.

Hegar responded by encouraging Berry to resolve the issue with the Harris County constables who initially complained about their funding.

“I understand that you want assurances from my office, but only Harris County can resolve this issue and clear the path to adopt its budget,” Hegar wrote.

See here and here for the background. It’s very clear from the state’s response to the lawsuit is that they were bluffing the whole time and they knew it. This is why the lawsuit was the right response, despite the whining from Constables Heap and Herman. You don’t concede when you’re right. Kudos to Judge Hidalgo, Commissioners Ellis and Garcia, and County Attorney Menefee for properly fighting this.

The rest of the story is about whether the two Republican members of the Court will break quorum again in order to prevent the budget and property tax rate from being passed. I don’t feel like deciphering their eleven-dimensional chess strategy this time around, so let’s just wait and see what happens. If we get the election results we want, we won’t have to worry about these shenanigans again.

Of course the redistricting lawsuit trial will be delayed

All we ever get is delays.

The legal fight over the shape of Texas political representation for the next decade won’t be decided until next year after a federal panel agreed Tuesday to delay a trial over new political maps.

The federal three-judge panel hearing the case pushed the start of the trial, which was originally scheduled for Sept. 28, following a flurry of disputes over discovery that left both the state and the various plaintiff groups questioning whether they’d have enough time to prepare to make their cases in a federal court in El Paso.

The court said it would announce a new trial at a later time.

The maps passed by the Legislature in 2021 have already gone into effect and are being used for the first time in this year’s elections, but the litigation could decide whether those maps need to be changed to ensure that voters of color have a fair say in choosing their representatives in elections for years to come.

The state faces a broad catalog of challenges to its four political maps, including its congressional and statehouse maps, that could affect a litany of districts. The legal claims, stemming from nearly a dozen consolidated lawsuits, include allegations of intentional discrimination, vote dilution and racial gerrymandering. The Republican-drawn maps largely serve to bolster the party’s dominance, giving white voters greater control of political districts throughout the state.

At issue in the delay were ongoing fights to compel Gov. Greg Abbott, the Texas attorney general’s office and other Republican elected officials to turn over thousands of documents that the state has been fighting to keep concealed. With less than a month until the scheduled start of the trial, the state and the plaintiffs groups were also jostling over various depositions in which state lawmakers relied on asserting legislative privilege to avoid divulging information on how the maps were drafted.

Redistricting cases are complex, with plaintiffs carrying the burden of proving wrongdoing by the state. The release of the disputed documents, the plaintiffs argued, could reveal new facts that could require additional depositions.

“Were the September 28 trial setting to hold, the Court could rule in advance of the upcoming legislative session. This would have been a clear benefit to all parties. But a ruling on only partial evidence does justice for none,” some of the plaintiffs wrote in a joint advisory filed with the court last week.

But the delay is not without risk.

This is the joint lawsuit with multiple plaintiffs; the Justice Department lawsuit, which survived a motion to dismiss in June, is being heard separately. The plaintiffs in this lawsuit scored a couple of wins recently relating to documents that must be disclosed to them. Those rulings obviously weren’t the end of the dispute, and so we have delays. The risk mentioned is that a final ruling would not be made in time for the Lege to make any required adjustments to the maps for the 2024 election. Remember, unless the primaries get moved back, which would affect the Presidential races, we need maps by October or so, to accommodate filing season and any updates that county election officials need to make. That’s not a lot of time. We’ll see when the new trial date is scheduled, but keep that time frame in mind. Unless we want to wait until 2026 – which, as we know from previous decades’ experience, is hardly out of the norm – the clock is very much ticking.

“Scamilton” church apologizes

Missed this last week.

The Door McAllen church released a statement this morning apologizing for their production of ‘Hamilton’, in which they altered lyrics to fit Biblical teachings and included a sermon at the end of the show that contained anti-LGBTQIA+ rhetoric. In addition to their apology, the church promised to never perform the show again, to destroy all recordings of the show and pay damages to the ‘Hamilton’ team which will then be donate to an LGBTQIA+ support organization.

The church released the statement, assumedly prepared by senior pastor Roman Gutierrez, on their Instagram account.

[…]

This statement seemingly closes the door on a three-week saga that captured the attention of the theatre world. The church performed the unauthorized production on Aug 5 and streamed it to their YouTube channel where it was instantly noticed by theatre fans. The case was a perfect storm of copyright violations. The church did not have permission to perform the show, make changes to its lyrics, use its logo, use copyrighted music as a backing track, advertise the production, and stream it on YouTube.

It was also reported to me from multiple sources that merchandise such as t-shirts with the Hamilton logo were also sold during the event. However, I have not been able to obtain photos of that merchandise.

Following our report on the production, the church issued a statement that they had received a license to perform the show. However, the legal team at ‘Hamilton’ stated that permission was given to only perform on Aug 6, with strict rules. The team also reserved the right to discuss this further with the church.

It is likely that this specifically worded statement is a result of those discussions. It is not known at this time how much in damages the church has agreed to pay.

However, according to a statement from the team at ‘Hamilton’, all funds will be donated to an LGBTQIA+ support organization.

See here for the background. Honestly, this is a perfectly fine outcome. The church admitted they were wrong, they promised to stop doing this sort of thing again, they destroyed the bootleg media of their unauthorized performances, and they paid some damages that then got donated to a worthy and fitting cause. I have no notes. Rolling Stone has more.

Harris County approves the option of suing Comptroller over baloney “defunding” claim

Good.

Harris County Commissioners Court on Wednesday authorized a pair of private law firms to sue Texas Comptroller Glenn Hegar, who accused the county of defunding law enforcement last week, forcing a halt to consideration of its $2.2 billion budget.

The move, approved by a 3-1 vote, came a week after Hegar sent a letter to county officials saying the court could not approve its proposed fiscal 2023 budget without approval of voters because of a change in policy that he said would result in the county funding two constable offices at a lower level in violation of a new state law.

The constables — Precinct 4 Constable Mark Herman and Precinct 5 Constable Ted Heap — had complained to Gov. Greg Abbott last year after the county changed its policy to do away with “rollover” budgeting that had allowed departments to keep unspent funds and use them in future budget cycles. Hegar’s letter said the change would result in the county, under its proposed budget, cutting funding to the two constable offices by $3 million.

[…]

In a letter to Hegar on Tuesday, County Administrator David Berry asked the Comptroller’s Office to clarify its investigation and whether it prevents the county from adopting a tax rate and budget.

The comptroller responded Wednesday by modifying his claim, alleging the proposed budget would result in a cut in law enforcement spending for a different reason — by comparing the proposed spending plan to this year’s 2022 short fiscal year budget, when broken down by month.

In addition to eliminating rollover budgeting, the county is changing its fiscal year to begin Oct. 1 rather than March 1. To accomplish that, Commissioners Court planned to pass two budgets this year. The first, a shortened budget, was approved in February and runs through September. The second, beginning Oct. 1, will span a full year.

Berry criticized the comptroller for using “fuzzy math,” saying the short fiscal year budget covered 16 pay periods.

“There’s no other reasonable way to do it,” he said. “When you properly annualize the budget, it’s clearly higher in FY23 (the proposed budget).”

County Judge Lina Hidalgo said Hegar’s second letter suggests the Comptroller’s Office is walking back its original defunding claim.

“They’re beginning to realize that the allegations they made make little sense,” Hidalgo said. “They’re moving away from talking about the rollover. They know that that’s absolutely nonsensical and are trying to take a different tack that also doesn’t make sense.”

Berry also took issue with the comptroller’s assertion the county should work the issue out with the constables.

“We believe we’ve complied with the law,” Berry said. “If the comptroller doesn’t, they have to explain. All we’ve gotten so far is some fuzzy math.”

At Wednesday’s meeting, Commissioners Court hired two law firms to represent the county — Yetter Coleman LLP and Alexander Dubose & Jefferson LLP — in a split vote, with the court’s three Democrats in favor and Republican Precinct 4 Commissioner Jack Cagle opposed. Precinct 3 Commissioner Tom Ramsey was absent.

Hidalgo said she is willing to move forward through legal action or negotiation, but the county needs to be careful in how it responds to allegations of violating the new state law.

“I am pretty opposed to giving in to any kind of extortion,” Hidalgo said. “I don’t know what precedent that would set.”

See here for the background. This new explanation is even dumber and more insulting than the original one. Of course an eight-month budget is going to have less of pretty much everything in it than a 12-month budget. If the Comptroller had been at all serious about this, the matter could have been easily resolved. Instead, they charged ahead with this stupid allegation, which unfortunately comes with the power to prevent the county from passing a budget, a situation which as noted would result in an actual decrease in funding to the Sheriff and Constables. It’s like they looked around to make sure there was a rake in easy stepping distance before they moved forward.

The response from Harris County – minus Commissioner Cagle, of course – and Judge Hidalgo was entirely appropriate. The county cannot take lightly an accusation that it is violating the law. The fact that the accusation itself is completely specious is almost beside the point, but given that it is there are only two acceptable resolutions: The Comptroller retracts its claim and absolves Harris County of any alleged wrongdoing, so that it can pass its budget as planned, or we go to court and let them try to prove their foolish claims. No concessions, because there’s nothing to concede.

Which brings me to this:

Herman and Heap said the court’s action on Wednesday took them by surprise. The two Republican constables said they had met with county officials late last week and Monday and thought they had come up with a solution.

The pair, Herman said, had agreed to write letters saying their concerns had been resolved. Hegar would have to write his own letter rescinding his previous communications with the county.

“Both sides were agreeing,” Herman said. “We agreed to put this thing to rest.”

Then, he said, he learned that Hidalgo had put an item on the agenda for Wednesday’s special meeting to pursue possible legal action against Hegar.

“It’s almost like a slap in the face,” he said. “We’re kind of disappointed. We’ll see what happens.”

Herman said if the county continues forward with a strategy of suing Hegar, he and Heap would request their own legal counsel to represent their interests in the broadening fight.

In a brief text message, Heap confirmed he had met with county officials in recent days and echoed Herman’s frustration.

“We have been in negotiations with the office of budget management for several days and I was very encouraged with the progress,” he texted. “However, the actions of Commissioners court today as well as some of their post on social media platforms disappoint me.”

You dudes started this fight. If you don’t like the way the Court is finishing it, that’s tough. Maybe don’t be such crybabies next time.

Abbott weasels on raising the minimum age to buy an assault weapon

Typical.

Gov. Greg Abbott said Wednesday that it would be unconstitutional to increase the minimum age to buy assault-style rifles from 18 to 21 years old — a key proposal Uvalde parents have called for after an 18-year-old gunned down their children’s school in May.

“It is clear that the gun control law that they are seeking in Uvalde — as much as they may want it — has already been ruled as unconstitutional,” Abbott said at a reelection campaign event in Allen.

The gunman in Uvalde bought two AR-15-style rifles days after he turned 18, the legal purchasing age in Texas, and used those weapons to kill 19 students and two teachers at Robb Elementary.

In the aftermath of the shooting, Texas Senate Democrats have asked for a special legislative session to increase the minimum age to purchase a semi-automatic rifle. Families of Uvalde victims and survivors also have pushed for a three-year increase to the legal purchasing age.

[…]

In the days after the shooting in Uvalde, Abbott was asked if he would consider banning assault-style weapons for 18-year-olds. The governor at the time appeared hesitant.

“Ever since Texas has been a state, an 18-year-old has had the ability to buy a long gun, a rifle. Since that time, it seems like it’s only been in the past decade or two that we’ve had school shootings. For a century and a half, 18-year-olds could buy rifles and we didn’t have school shootings. But we do,” Abbott said. “Maybe we’re focusing our attention on the wrong thing.”

Abbott that day was immediately interrupted by state Sen. Roland Gutierrez, D-San Antonio, who said, “Your own colleagues are telling me, calling me and telling me an 18-year-old shouldn’t have a gun. This is enough. Call us back, man.”

“Simply doing nothing is about as evil as it comes,” Gutierrez later said in June.

See here for the ruling Abbott refers to. I’ll get to the legal stuff in a minute, but first as you might imagine, not everyone cared for this response.

A video of Abbott making the claim circulated on social media, drawing reactions from Texas leaders and Uvalde parents. Brett Cross, father 8-year-old victim Uziyah Garcia’s father, tweeted a video in response to Abbott, noting the “parents matter” signs.

“What parents are you referring to actually? Because it’s not us in Uvalde,” Cross said. Cross also claimed that during a conversation he had in person with Abbott, the governor shut down any talks about changing gun laws because it wouldn’t have changed anything. Abbott allegedly pointed to the 17-year-old gunman from the Santa Fe High School shooting in 2018, Cross said.

“Except it would have,” Cross said. “You see that piece of s–t that murdered our children legally bought that damn gun. You could do something about it. You’re just too chicken s–t to do it. So don’t sit there and act like you’re for the people, that you’re for the parents, that you’re for the children, because you don’t give a damn.”

Cross continued: “But I implore you, make a liar out of me. Call a special session. Or don’t and prove me right. The choice is yours buddy.”

Abbott’s office did not immediately on Wednesday return a request for comment on his conversation with Cross.

The video also drew reactions from other Texas leaders. Austin Mayor Steve Adler tweeted in response: “Seven states have raised the minimum age to 21. It is possible.”

Abbott’s Democratic gubernatorial opponent Beto O’Rourke denied the governor’s claim, writing on Twitter: “Yes, it is. And thanks to the leadership of the families in Uvalde, we are going to do it.”

David Hogg, gun control activist and survivor of the Stoneman Douglass High School shooting tweeted: “Bulls–t we did it in Florida.”

The most obvious thing to point out here is that this ruling can be, and should be appealed. Indeed, the judge in question put his ruling on hold for 30 days pending appeal. That stay can be extended by the appeals court or SCOTUS, and at this point we don’t know what a final ruling will be. That ruling was about carrying handguns, and the demand here is about buying assault weapons, so even if the ruling in this case is eventually upheld, it doesn’t mean that a law raising the age to 21 for assault weapons would be illegal under it. Actual legal experts agree with me on these points!

At least seven states — California, Florida, Hawaii, Illinois, New York, Vermont and Washington — have passed legislation raising the legal purchase age for sales of long guns, and several are still cases regarding those laws are winding their way through the courts.

“It’s an unsettled question whether states can restrict guns to people under 21,” said Adam Winkler, a UCLA law professor who studies gun policy. “There are court cases going both ways … This is one of many issues the Supreme Court is going to have to take up in the coming years.”

[…]

David Pucino, deputy chief counsel for the Giffords Law Center to Prevent Gun Violence, said there is a well-grounded case to be made that age restrictions are lawful and in keeping with historical laws.

“There is really strong law and strong history to support the principle that you can have these restrictions,” Pucino said. “Historically, the age of 21 was the age of majority (legal adulthood); it’s only a far more recent development that it’s been lowered to the age of 18.”

Pucino added that the cases to which Abbott refers had to do with carrying of handguns, not purchasing of assault weapons.

“An important distinction is that handguns are recognized by the Supreme Court as being the quintessential weapon for self-defense, and that is absolutely not the case with assault weapons,” Pucino said. “These rifles in particular have offensive capabilities, and that’s their distinguishing feature is the fact that they can be used to inflict an incredible and horrifying amount of damage in a very short period of time.”

Greg Abbott is a lawyer and he knows these things perfectly well. He just doesn’t want to deal with them, and so he dodges the question. Oh, and did I mention that the state of Texas is the defendant in that handgun lawsuit? The state of Texas is the party that would be making the appeal of that ruling. If it chooses to, of course, which is also a thing Greg Abbott has a say in. Don’t believe his “we can’t do anything” baloney.

Another lawsuit over Uvalde public information

This all really is ridiculous.

The Texas Tribune, along with a group of other news organizations, filed a lawsuit Monday against the city of Uvalde, the Uvalde County Sheriff’s Office and the Uvalde Consolidated Independent School District asking a judge to order the release of records related to the May 24 shooting at Robb Elementary School.

The lawsuit states that the local entities have unlawfully withheld information detailing the actions of their dozens of law enforcement officers who responded to the massacre, which the news organizations requested under the Texas Public Information Act. These records include 911 calls, radio traffic, officer body camera footage, police reports, training materials and school surveillance footage.

“For more than three months, the City of Uvalde, Uvalde CISD and Uvalde Sheriff’s Office have resisted the community’s calls for transparency and accountability,” said Laura Lee Prather, a First Amendment lawyer at Haynes Boone who represents the plaintiffs. “Their obfuscation has only prolonged the pain and grief of this tragedy. Today we are asking the Uvalde District Court to heed the call of the community and recognize that the public is entitled to these records under Texas law. We ask that the court grant our petition so that the people of Uvalde can understand the truth about what happened that fateful day.”

[…]

The Tribune and other news organizations also previously filed suit against the Department of Public Safety over its refusal to release records related to the shooting. The agency’s director publicly pinned much of the blame for the flawed police response on the Uvalde school district police chief, though DPS has repeatedly declined to detail the actions of most of its 91 officers who were on the scene.

The city, county and school district have sought permission from the state’s attorney general to withhold information requested by the news organizations. Under the state’s public records law, documents can be exempted from public disclosure in certain circumstances. The lawsuit states that even after the attorney general informed the city of Uvalde that it could not withhold some documents sought by journalists, the city has yet to release them.

Other news outlets that joined Monday’s lawsuit include ProPublica, The New York Times Co., The Washington Post, Gannett, NBC News, ABC News, CBS News and Dow Jones & Co.

See here for some background on the previous lawsuit against DPS. That one was filed in Travis County, this one in Uvalde County. DPS had also been sued by State Sen. Roland Gutierrez, but it was dismissed for not having been filed correctly. I’m about as unsympathetic to the claims of whatever secrecy these entities have made, and even more so for their lack of action where they don’t even have that excuse. The public deserves to know, and these entities are just covering their asses. It’s long past time for us all to find out more about what happened.

Pension reform law reinstated by appeals court

A win for the city.

Mayor Sylvester Turner

A state appeals court on Tuesday tossed out a ruling that jeopardized part of Houston’s pension reform plan, reversing a victory the firefighters’ pension board had scored in late 2020.

The Houston Firefighters’ Relief and Retirement Fund had argued that legislation passed in 2017 as part of Mayor Sylvester Turner’s pension reform package prevented the board from determining “sound actuarial assumptions” — projections of future pension costs and benefits — by itself, which it said violated the Texas Constitution.

Texas’ 1st Court of Appeals ruled Tuesday that the Constitution does not give the board an exclusive right to determine those assumptions, upholding the law.

[…]

The dispute involves Turner’s landmark pension reform legislation passed in 2017. Among other things, the legislation affected how much money the city contributes to the police, fire and municipal pension funds each year. The changes to that part of the law dictated some of the actuarial assumptions that must be used in that calculation, including a 7 percent assumed rate of return on investments. It also set a process for determining the rate when the pension board and the city actuaries offered differing proposals.

The board, though, argued that the Texas Constitution gives it “exclusive authority” to choose actuarial assumptions, and therefore the new law violated the Constitution by giving the city a role in that process. The Constitution says pension systems “shall… select… an actuary and adopt sound actuarial assumptions to be used by the system or program.”

In Tuesday’s ruling, Justice Richard Hightower said that is not the case. The ruling marks the second time the challenged provision has been upheld by appeals courts.

“(T)he word ‘shall’ does not, by itself, mean or imply ‘exclusive authority,’” Hightower wrote. “The commonly understood meaning of ‘shall’ does not imply that the party with a duty to perform — who ‘shall’ perform — does so exclusively or that the duty cannot be regulated.”

See here for the previous update, and here for the opinion. Given that it apparently turns on the definition of “shall”, I did not read it, on the expectation that my eyes might permanently glaze over. The firefighters have vowed to appeal to the Supreme Court. Given that it took almost two years to get an opinion on the previous appeal, you can guess for yourself how long it will likely be before the next update.

Paxton still trying to intervene in the Genecis case

Never stop never stopping.

Best mugshot ever

Texas Attorney General Ken Paxton is attempting for the second time to intervene in a legal fight over gender-affirming medical care at two Dallas hospitals.

In an appeal filed this month, Paxton said that a lower court judge erred in ruling the state could not intervene in Dr. Ximena Lopez’s lawsuit against Children’s Medical Center of Dallas.

Lopez sued in March to reverse the decision to halt certain treatments for new patients and remove the branding at Genecis, a program for transgender youth that Children’s ran with the University of Texas Southwestern until November. While the program itself remains dismantled, a lower court judge ruled in May that Lopez could treat new patients using puberty blockers and hormone therapy while her case is being litigated.

In his appeal, Paxton said the state has an interest in the case because Lopez is challenging his interpretation of Texas law and has accused the governor of pressuring the hospitals to make changes at Genecis. He added the state acted “through” UT Southwestern, a public university, to discontinue certain treatments for new trans patients at Genecis.

See here and here for the background. I got this from the Daily Kos pundit roundup on Saturday, so that’s all I’ve got. In May, the district court judge in Dallas County gave Dr. Lopez and Genecis an injunction through April of 2023 to continue their work. Paxton had petitioned to intervene in the case, since the Children’s Medical Center of Dallas did not pursue an appeal, and we denied at the district court. He’s now appealing to the Fifth Court of Appeals – the state appeals court, not the federal one – with the goal (I presume) to put a hold on the injunction as the litigation proceeds. That’s about all I can glean from this excerpt, so we’ll see what that court has to say. I would expect Paxton to continue on to SCOTx if he loses again.

Libertarians will remain on the ballot

Too bad, Republicans.

The Texas Supreme Court on Friday rejected a Republican effort to remove a host of Libertarian candidates from the November ballot, saying the GOP did not bring their challenge soon enough.

In a unanimous opinion, the all-GOP court did not weigh in on the merits of the challenge but said the challenge came too late in the election cycle. The Libertarian Party nominated the candidates in April, the court said, and the GOP waited until earlier this month to challenge their candidacies.

On Aug. 8, a group of Republican candidates asked the Supreme Court to remove 23 Libertarians from the ballot, saying they did not meet eligibility requirements. The Republicans included Lt. Gov. Dan Patrick and others in congressional and state legislative races.

State law requires Libertarian candidates to pay filing fees or gather petition signatures, the amount of each depending on the office sought. The Libertarian Party has been challenging that law in federal court, arguing it is unfair because the fees do not go toward their nomination process like they do for Democrats and Republicans.

Republicans also tried and failed to kick a group of Libertarian candidates off the ballot in 2020. In that case, the state Supreme Court said the GOP waited until after the deadline to challenge candidate eligibility. This time, the Republicans filed their challenge before that deadline but apparently still did not satisfy the court’s preference to deal with election challenges as soon as the alleged issues arise.

In its opinion Friday, the court suggested the “emergency timeframe” argued by the GOP “is entirely the product of avoidable delay in bringing the matter to the courts.”

See here for the background, and here for the Court’s opinion. Basically, SCOTx is saying that the GOP should have filed their challenge in or closer to April, when the Libertarians nominated their no-fee-paying candidates, and that claiming something is an emergency doesn’t make it one. They did not rule on the merits, as noted, so the question of whether this kind of challenge could be successful – so far, we haven’t seen a successful challenge, but in the prior cases that was due to timing and technical matters, so there’s still no precedent – remains unanswered. Maybe in 2024, if the federal lawsuit the Ls have filed doesn’t make it moot. The Chron has more.

More on the Uvalde class action lawsuit

A few more details, anyway.

Charles Bonner served the Uvalde Consolidated Independent School District with the multibillion-dollar claim Monday, requesting compensation for the victims. Bonner told The Texas Tribune he intended to serve Uvalde city leaders on Tuesday evening at a City Council meeting.

As evidence of the school district’s responsibility, the claim pointed to a Texas House committee’s report that investigated the shooting as well as law enforcement’s response. The report, which was published a month ago, found that “systemic failures and egregious poor decision making” contributed to the gunman’s ability to get inside a classroom and law enforcement’s delayed response in confronting him.

[…]

The claim, which could become a precursor to a class-action lawsuit, puts the would-be defendants of a potential suit on notice. Bonner said he hopes to reach a settlement ahead of the class-action suit, but if those parties don’t come to the negotiating table, he plans to file the federal lawsuit in September.

Bonner said the claim seeks to establish a medical monitoring fund to pay for counseling for those affected by the incident and further compensation for the victims of the shooting, their families and the other people in the school on the day of the tragedy.

As it stands, the class named in the prospective lawsuit covers nine families of shooting victims, but Bonner said he expects that more people impacted by the shooting will sign on moving forward.

“The theme of this invitation to negotiate is accountability, responsibility and justice, and that’s what we want for everyone in that class. We will leave no victim behind,” Bonner said.

See here for some background on the lawsuit, and here for more on that House committee report. I don’t know what might qualify this as a class action lawsuit – I know that having multiple plaintiffs isn’t enough for that. I do know that $27 billion could pay for a lot of counseling and still provide for significant “further compensation”. I don’t expect there to be a settlement, though one presumes with an opening bid of $27 billion there’s plenty of room to negotiate, so we’ll see what the filing looks like next month. Any lawyers want to comment on this? ABC News and the Express News have more.

Paxton finds a new way to be two-faced

I mean, what were we supposed to believe?

Best mugshot ever

Texas Attorney General Ken Paxton stunned election administrators across the state last week when he released an opinion that, in theory, would allow anyone to access ballots almost immediately after they were counted.

Records show that, as recently as five days before the office released that opinion, it was providing the exact opposite guidance to counties.

“The information at issue is confidential for at least 22 months after election day,” a public records opinion from the office, dated Aug. 12, reads. “Accordingly, the district attorney’s office must withhold the information at issue.”

Then, five days later, Paxton released his new opinion. “Members of the public” the new guidance read, are welcome to inspect “voted ballots during the 22-month preservation period.”

“What a difference five days makes,” said Chris Davis, elections administrator in Williamson County.

The record shows that Tarrant County did not receive the opinion telling it not to release the ballots until Aug. 22 — five days after Paxton issued his new opinion. This left the county unsure of how to proceed, and by that time, it had already challenged the new opinion in court. Paxton’s office did not respond to questions about what, if anything, changed in the five day period between the contradictory opinions.

[…]

Tarrant County’s court challenge to Paxton’s new opinion was filed as part of an ongoing records dispute. Citing yet another opinion issued to the office this summer, this one dated July 26 and also instructing the county not to release ballots, attorneys for the county’s election department asked the judge to find Paxton’s new opinion “erroneous.”

“On August 17, 2022, the Attorney General issued a formal opinion concluding for the first time in almost 40 years that voted ballots are not confidential,” they wrote. “The Attorney General’s most recent interpretation is erroneous, and the Court should not follow it.”

In addition to the opinions issued to Tarrant County and dated July 26 and Aug. 12, records provided to Votebeat show Paxton’s office provided identical advice in opinions dated June 16 and Aug. 1.

“We have two documents coming from the same office saying opposite things,” Tarrant County Elections Administrator Heider Garcia told Votebeat. “We’ve got to figure out what’s the path we’re going to walk to do our job.”

Garcia has clear reason to be concerned about the ruling. Earlier this year, after the 22 month window for the March 2020 primary lapsed, a group of activists spent weeks inside his office examining the 300,000 ballots cast by Tarrant County voters. The request took Garcia weeks to fulfill, and then required a dedicated room with videotaped surveillance and a staffer’s supervision.

“You want it as safeguarded as possible in case you actually do have a criminal investigation or some sort of proceeding where [ballots] become evidence,” Garcia said. “Ballots are really easy to alter. You just grab a Sharpie and draw a line on them and now how do you know if it’s been altered or not? Having absolute protection on the physical document, to me, is extremely important.”

See here for the background. I cannot think of a good reason for the sudden turnaround, not to mention the chaos caused by the out-of-order delivery of the contradicting opinions in Fort Worth. The simplest explanation is sheer incompetence. Which would be a surprise given that office’s track record – they’re evil, but they’ve been pretty effective at it. If you have a better idea, by all means say so.

I trust that the irony of Heider Garcia’s words in that last paragraph aren’t lost on anyone. The single biggest threat to the security of the ballots is the idiots that demand to “audit” them, who have to be watched like hawks to ensure they don’t accidentally or deliberately spoil them. I hope that the madness this all represents is helping to drive home the message that Republicans are a clear threat to democracy, as the January 6 hearings and confidential-document-theft-a-palooza have been doing. There are plenty of other things to be talking about as well, from guns to abortion to LGBTQ rights to climate change and renewable energy, but we can’t lose sight of this one. Whatever it’s going to take to convince people they can’t trust the Republican Party as it now exists, we need to be doing it.

Judge rules Texas cannot ban handgun sales to 18-to-20-year olds

WTAF?

A federal court in Fort Worth on Thursday struck down a Texas prohibition that limited adults under 21 from carrying handguns.

Texas law bars most 18- to 20-year-olds in the state from obtaining a license to carry a handgun or carrying a handgun for self-defense outside their homes. Two plaintiffs, who fall within that age range, and the Firearms Policy Coalition Inc., filed a lawsuit against the state to challenge the statute. The suit says the Texas law prevented the plaintiffs from traveling with a handgun between Parker, Fannin and Grayson counties, where they lived, worked and went to school.

U.S. District Judge Mark Pittman wrote that the Second Amendment does not specify an age limit and protects adults under 21 years old.

“Based on the Second Amendment’s text, as informed by Founding-Era history and tradition, the Court concludes that the Second Amendment protects against this prohibition,” Pittman wrote in the ruling.

The order will not go into immediate effect. Pittman stayed the ruling for 30 days pending appeal.

I didn’t know this lawsuit existed; it was filed last November, apparently. The under-21 law is nothing new, I guess it was just a matter of someone deciding that now was the time to sue. I find the reasoning specious – if there’s no age limit in the constitution, then why allow the restriction for anyone under 18 as well? Sure, there are plenty of laws restricting other things that minors may want to buy, but if we are talking about Our Sacred God-Given Unalienable Right To Own Guns, then who cares about that? Eighteen is just as arbitrary as 21 when you get right down to it.

The ruling is on hold pending appeal, and I have questions about whether it actually will get appealed. Do you expect Greg Abbott and Ken Paxton to want to appeal this, and to have their hearts in it if they do? Color me suspicious. We’ll see what happens next.

Paxton issues deranged opinion on access to ballots

This is utterly chaotic. And completely out of the blue.

Best mugshot ever

A legal opinion released by Texas Attorney General Ken Paxton last week will almost certainly throw county elections offices into chaos after November, experts say, exposing election clerks to possible criminal charges and materially reducing the security of every ballot cast in the state.

Federal and state law require that ballots be kept secure for 22 months after an election to allow for recounts and challenges — a time frame Texas counties have had set in place for decades. Paxton’s opinion, which doesn’t stem from any change to state law, theoretically permits anyone — an aggrieved voter, activist or out-of-state entity — to request access to ballots as soon as the day after they are counted. Such requests have been used by activists all over the country as a way to “audit” election results.

The opinion from Paxton doesn’t carry the force of law, but experts say it will almost certainly serve as the basis for a lawsuit by right-wing activists. The opinion has already impacted elections administrators across the state, who told Votebeat that they’ve seen an onslaught of requests since Paxton released it.

“[Paxton’s office wants] to throw a monkey wrench into the operations of vote counting, especially if they think they might lose, and Paxton is in a close race as far as I can tell,” said Linda Eads, a professor at Southern Methodist University’s Dedman School of Law and a former deputy attorney general for litigation for the state of Texas. She said she was “shocked” by the opinion.

[…]

Paxton’s office sought input from the secretary of state’s office prior to issuing the decision, which was requested by state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans. In no uncertain terms, the secretary of state’s office  — which is run by a Republican appointed by Gov. Greg Abbott — recommended keeping the current waiting period.

“The voted ballots are the core of the election process and the prohibition on disturbing the ballots (except in limited circumstances as permitted by the Election Code) preserves the integrity of the election itself,” wrote Adam Bitter, general counsel for the office, in a letter obtained by Votebeat through a public records request. “Handling of the voted ballots themselves opens up the possibility of accidental or intentional damage or misplacement that could call into question the election after the fact.”

Paxton’s office did not respond to specific questions about why he disagreed with Bitter’s conclusion, nor did he respond to requests for comment.

For months, election administrators in Texas and across the country have been fielding records requests from activists intent on re-examining every ballot cast in every election since November 2020 — or, in some cases, even earlier. In Tarrant County, volunteers with a conservative group occupied a room in the elections office for weeks this summer, examining 300,000 ballots from the March 2020 primary, which were made available by the county 22 months after the election.

Ballots are kept in secure lock boxes for 60 days, and then transferred to another secure facility for the remainder of the waiting period in order to comply with the Civil Rights Act of 1960, a federal law which, in part, requires ballots be securely stored for 22 months. In 2017, the Republican-dominated Texas Legislature even amended state law to specify “22 months,” updating state standards to mirror federal requirements.

In the letter to the attorney general’s office, Bitter, the general counsel for the secretary of state’s office, wrote that an election clerk may effectively have to break state law in order to comply with a request for ballots so soon after an election.

Texas law says that if the ballots’ legal custodian, typically a local election official, “makes unauthorized entry into the secure container containing the voting ballots during the preservation period, or fails to prevent another person from making an unauthorized entry, the custodian has committed a Class A misdemeanor,” Bitter wrote.

Paxton’s opinion, experts say, does not appropriately address the potential criminal exposure.

Matthew Masterson, who previously served as the Trump administration’s top election security official and now is Microsoft’s director of information integrity, said that Paxton’s opinion will make it impossible for election administrators to appropriately ensure that ballots are kept secure. The security controls exist for a good reason, he said, and undermining them has serious implications.

“If you open up the floodgates and give anyone access to the ballots throughout that process, you have broken that chain of custody to the point where you would not be able to prove that this was the ballot a given voter cast,” Masterson said.

The opinion itself provides little guidance as to how long or for what reasons election administrators can block access to such ballots, leaving administrators across the state concerned about their ability to appropriately comply.

“If I read this literally as a layman, I think I’m required to provide ballots the day after an election before the results have even been canvassed,” said Chris Davis, elections director in Williamson County, who said such a release would make it impossible for counties to confidently conduct recounts that would stand up to legal scrutiny.

“I don’t know if the drafters of this opinion have a firm grasp on how ballot security and ballot processing is done at the county level,” he said.

There’s more, go read the whole thing, and add on this tweet thread from story author Jessica Huseman. There’s absolutely no justification for this – state and federal law are clear, and nothing has changed about them. It’s just chaos intended to give a boost to Big Lie enthusiasts, and as the story notes later on, it’s potentially a conflict of interest for Paxton since he himself is on the ballot this year, and everyone agrees it’s likely to be a close race.

County election officials around the state are already reporting getting a bunch of requests, some of which appear to be part of a coordinated effort. I think Harris County has the right response here.

Harris County Attorney Christian Menefee says the county is not releasing the ballots, arguing the opinion Paxton issued in the name of election integrity last week runs afoul of the law.

“Attorney General Ken Paxton is distorting the law to fuel conspiracy theories, encouraging reckless behavior that erodes public trust in our democratic process,” Menefee said in a statement. “The law is clear that these voted ballots are confidential and it’s a crime for anyone to access them unless authorized by law.”

Menefee said Harris County had received more than three dozen requests to inspect ballots since Paxton issued his opinion. The county attorney’s office did not respond to a request for more information about the requests, including who submitted them.

[…]

Federal and state laws requires ballots be securely stored for 22 months after an election, in part to preserve them for recounts or challenges to election results. Menefee said Paxton’s opinion “directly contradicts” a separate opinion his office issued last month, as well as an opinion issued by the AG’s office more than 30 years ago, which both concluded that ballots are confidential for 22 months following an election.

“Our election workers should not have to fear being criminally prosecuted because the attorney general wants to play politics and try to rewrite laws,” Menefee said. “Everyone who has closely read the law agrees the ballots are confidential: the Secretary of State’s Office, counties across the state, and his own office just a month ago. Harris County will continue to follow Texas law, not the Attorney General’s ‘opinion.’”

That’s what I, a non-lawyer who has no responsibilities in these matters, would have done. It is highly likely that a lawsuit will result. No one wants that, but sometimes having the fight is the most straightforward way to resolve the dispute. If that’s what we have to do, then so be it.

A different EMTALA ruling in Idaho

As expected. You know where this goes from here.

A federal judge on Wednesday blocked Idaho from enforcing a ban on abortions when pregnant women require emergency care, a day after a judge in Texas ruled against President Joe Biden’s administration on the same issue.

The conflicting rulings came in two of the first lawsuits over Biden’s attempts to keep abortion legal after the conservative majority U.S. Supreme Court in June overturned the 1973 Roe v. Wade decision that legalized the procedure nationwide.

Legal experts said the dueling rulings in Idaho and Texas could, if upheld on appeal, force the Supreme Court to wade back into the debate.

[…]

In Idaho, U.S. District Judge B. Lynn Winmill agreed with the U.S. Department of Justice that the abortion ban taking effect Thursday conflicts with a federal law that ensures patients can receive emergency “stabilizing care.”

Winmill, who was appointed to the court by former Democratic President Bill Clinton, issued a preliminary injunction blocking Idaho from enforcing its ban to the extent it conflicts with federal law, citing the threat to patients.

“One cannot imagine the anxiety and fear (a pregnant woman) will experience if her doctors feel hobbled by an Idaho law that does not allow them to provide the medical care necessary to preserve her health and life,” Winmill wrote.

The Justice Department has said the federal Emergency Medical Treatment and Labor Act requires abortion care in emergency situations.

“Today’s decision by the District Court for the District of Idaho ensures that women in the State of Idaho can obtain the emergency medical treatment to which they are entitled under federal law,” U.S. Attorney General Merrick Garland said in a written statement.

“The Department of Justice will continue to use every tool at its disposal to defend the reproductive rights protected by federal law,” Garland said. The DOJ has said that it disagrees with the Texas ruling and is considering next legal steps.

See here for the background. TPM goes deeper into the two rulings and also provides copies of them, but the bottom line is that the Texas judge said that the federal guidance went too far, didn’t go through the formal rule-change process (even though it was guidance on an existing rule and not a change), didn’t take the rights of the fetus into account, and could only apply when the mother’s life was in danger, not just when her health was threatened. The Idaho judge didn’t do any of that.

Both rulings will be appealed, and as Idaho is in the more liberal Ninth Circuit, there’s a very good chance that this ruling will be upheld. The same is true for Texas, where the radical and lawless Fifth Circuit will get its paws on it. While it is usually the case that a split in the appellate courts means that SCOTUS will weigh in, it seems possible to me that they will duck the issue, perhaps on the grounds that this is really a dispute over state laws, and since the Texas case applies only to Texas, there’s no need for them to step in. I’m just guessing, I could easily be wrong. We’ll know soon enough. DAily Kos has more.

Paxton’s State Bar disciplinary hearing

We are slowly moving towards finally having some kind of result in this saga.

Best mugshot ever

Lawyers for Texas Attorney General Ken Paxton argued Wednesday that a Kaufman County judge should toss a lawsuit alleging he acted unethically in a legal challenge that sought to overturn the 2020 presidential election.

The first public hearing in the case inside a near-empty Kaufman County courtroom was not to determine the merit of the lawsuit lodged by a disciplinary commission of the state bar, but whether the group can seek sanctions against Texas’ top lawyer.

Paxton’s lawyers said the case, which could threaten his law license, is an unconstitutional attempt to control his office’s work and could have a chilling effect on future attorneys general. But an attorney for the commission countered that all lawyers should be subject to the same rules of professional conduct, no matter their position.

Judge Casey Blair, a Republican, did not issue a decision from the bench Wednesday. The outcome could establish the limits of the commission’s power to sanction lawyers who serve in high-ranking elected positions.

Any ruling will likely be appealed, meaning it could be months before the bar’s complaint over Paxton’s 2020 election lawsuit is heard in court, if ever.

[…]

In the hearing Wednesday, Christopher Hilton, a state attorney representing Paxton, argued that if the court allows the lawsuit to go forward, then “every future attorney general will have to fear for their law license rather than represent the state of Texas to the best of their ability and the way their voters expect that they would do.

“They would be hamstrung on unelected bureaucrats,” he said.

Royce LeMoine, a lawyer for the commission, said Paxton is being sued for his actions as a lawyer, not as the state’s attorney general, and that this is not a “select prosecution.”

“The commission’s disciplinary rules do not violate the respondent’s ability to advocate for his clients and the state of Texas,” LeMoine told the judge.

See here, here, and here for the previous updates. The Chron had a preview story on Tuesday.

“I hope it proceeds,” said Jim Harrington, one of the Texas lawyers who filed the State Bar complaint. “I hope [the judge] bites the bullet and denies the plea because it’s the right thing to do.”

[…]

In seeking to dismiss the disciplinary case, Paxton’s lawyers argue that it would violate the separation of powers doctrine for the Texas courts to “police” what they say was an executive branch decision. They also claim Paxton is protected by sovereign immunity, the legal principle that generally shields public officials from lawsuits.

In a separate motion, the attorney general’s office is asking the judge to allow the agency to intervene in the case on Paxton’s behalf.

The 2020 suit was not “dishonest, fraudulent, or deceitful,” they write in filings, and the State Bar’s issues with it essentially amount to a “political disagreement.”

“If Texans disapprove of the how the Attorney General exercises his authority, the remedy is to vote him out of office,” Paxton’s attorneys write. “The bar has no veto over how the Attorney General exercises his constitutional authority.”

Paxton was not the first attorney general to be asked to spearhead the case, and lawyers in his own office, including then-Solicitor General Kyle Hawkins, had argued against it, according to the New York Times. Hawkins, who would normally represent the state in such litigation, had no involvement in the case when it was filed and resigned within a month.

Top lawyers at the Florida attorney general’s office ridiculed the suit as “bats—t insane,” emails revealed.

Recent polls have shown the attorney general’s race is highly competitive between Paxton and his Democratic opponent Rochelle Garza, a former ACLU attorney. Garza, who has portrayed herself as the candidate who will bring integrity to the attorney general’s office, isn’t buying Paxton’s legal argument in this case.

“Political disagreements have to do with policies, not facts,” Garza said in a statement. “Even first-year law students know that legal accusations of wrongdoing require evidence, yet two years later, Paxton continues peddling his baseless lies about the 2020 election. Texans deserve an attorney general who believes in the rule of law and ethically uses the power of the office to serve Texans, not for their own political ends.”

Any decision in the case could foreshadow the result of a suit filed against Paxton’s First Assistant Attorney General Brent Webster by the Texas Bar for his involvement in the 2020 Supreme Court petition. Webster is also seeking to dismiss his case, and a hearing will be held Sept. 6 in Williamson County.

Paxton and Webster are being represented by lawyers from the attorney general’s office, as well as outside counsel. The office has not responded to questions about why they need both. The cost to taxpayers so far is over $46,000, and that’s before today’s initial proceedings.

The attorney general’s office has said the four in-house attorneys working on the case are not keeping track of their billable hours. The office did not explain why no timekeeping was done, despite its policy of doing so for other types of cases.

“To me, it’s really outrageous they’re using taxpayer money,” Harrington said. “This has nothing to do with his role as attorney general, absolutely nothing. It’s only his role as an attorney. Even if the State Bar disbars him, it has no effect on him being attorney general.”

You will not be surprised to know that I am on the State Bar’s side in this dispute. Paxton’s argument has merit to the point that elected officials should not be held accountable for political decisions by non-political offices like the State Bar. Where that falls apart is that he was also acting as a lawyer, and in doing so was violating the ethical and professional rules that lawyers are supposed to abide by. The evidence for that is overwhelming, from the sheer brazen falsity of the the claims he was making to the way similar lawsuits had been routinely batted aside by a myriad of courts to the fact that his own Solicitor General, whose job it is to make these arguments in court, refused to participate. If he can’t be held accountable for that then he has a blank check to do anything. That cannot be the right answer.

Anyway. If Paxton is found guilty, he will be subject to discipline from the State Bar, which could be anything from a scolding to being disbarred. While the latter seems unlikely to me – from what I have observed, it’s usually lawyers that do things like misappropriate clients’ money that get the boot – I don’t think it would be inappropriate given the seriousness of the issue. If that did happen, Paxton would still be able to hold the office of Attorney General. We’re not getting rid of him that easily. I don’t know what to expect and I don’t know how long it might take. With Paxton, we’re used to waiting on these things. Reform Austin has more.