Off the Kuff Rotating Header Image

Attorney General

We don’t know enough about what’s happening at nursing homes

We’ve talked before about two of the main coronavirus hotspot types in Texas, prisons and meat processing plants. Now we’re going to talk about that third type, nursing homes.

As the death toll grows at Texas nursing homes, so has the number of requests for information kept by state health officials that would reveal which long-term care facilities have suffered coronavirus outbreaks during the worst pandemic in generations.

But the Texas Health and Human Services Commission, which regulates nursing homes and assisted living facilities, is attempting to keep its records secret, despite calls for more transparency from open-government advocates, some Texas lawmakers and family members worried about vulnerable residents.

“The public is being left in the dark, and we’re losing control of our ability to oversee the operations of our government,” said Joe Larsen, a lawyer with the Freedom of Information Foundation of Texas, which published an open letter last month urging the health commission to release its records on nursing home infections.

In a May 4 letter to the Texas Attorney General’s Office, Carey Smith, a lawyer representing the health commission, said the agency has received more than two dozen public records requests for nursing home data about coronavirus infections, but that federal and state laws prohibit the release of the information because it might identify infected residents and violate their privacy.

However, Texas legislators who wrote one of the laws cited by Smith said it doesn’t prohibit officials from releasing statistical information about COVID-19 in nursing homes.

“The statute was not intended to create a blanket protection for all health-related information,” said former Sen. Kirk Watson, D-Austin, who authored the bill in the Texas Senate last year.

The sponsor of the bill in the Texas House, Rep. Giovanni Capriglione, R-Southlake, said releasing statistical data from nursing homes could benefit both consumers and government authorities. And, like Watson, he said the bill they passed doesn’t prevent state officials from releasing that information.

“So long as you can’t get personal identifying information I don’t see why the current rules and statutes that we have don’t already allow that information to be released,” Capriglione said.

[…]

After facing criticism from families and advocates of nursing home residents, Texas began releasing statewide statistics that show the total number of coronavirus deaths at nursing homes, which provide round-the-clock care, and assisted living facilities, which are less intensive.

As of [May 1], 478 COVID-19 deaths — nearly half of the 1,042 reported in Texas — were at nursing homes or assisted living centers, records show.

But state health officials haven’t disclosed infection rates for each location, which has stymied families trying to protect their relatives. The lack of information also leaves hospice workers and other contract caregivers in the dark.

That story was from early May. Since then, we have gotten more numbers from the state.

More than 3,000 Texas nursing home residents have tested positive for the new coronavirus, as well as nearly 400 assisted living facility residents, according to data released Friday by the Texas Department of State Health Services.

Among the reported 311 nursing homes with confirmed cases, 3,011 residents have tested positive and 490 have died. Another 494 residents have recovered, according to the data. At 112 assisted living facilities in Texas with at least one confirmed coronavirus case, 382 residents have tested positive for the virus, and 95 have died.

Statewide, 1,272 people have died, but it was unclear late Friday if all of the long-term care facility patients’ deaths were included in that larger figure.

The state had previously released only the number of nursing homes with confirmed cases and fatalities, not the number of people who have tested positive.

The state is still not releasing the names of nursing homes with COVID-19 cases. Many families remain in the dark about whether their loved ones in nursing homes are at risk of exposure.

There are a lot of reasons why we need more and better reporting of this data. For one, just so that the people who have family and friends that live or work at these places can know what’s going on with them. For two, to better identify the places that are not up to standard on health and safety. For three, so we can learn from the places that are doing well as well as the places that are doing poorly, so the overall level of safety and care can be improved. This is not hard to understand, and at least it looks like there’s bipartisan agreement that the existing laws need to be upgraded for the future. Put that on the ever-lengthening to do list for the 2021 Lege.

Supreme Court sticks its nose in

I suppose this was to be expected.

The Texas Supreme Court on Friday temporarily put on hold an expansion of voting by mail during the coronavirus pandemic.

Siding with Attorney General Ken Paxton, the Supreme Court blocked a state appeals court decision that allowed voters who lack immunity to the virus to qualify for absentee ballots by citing a disability. That appellate decision upheld a lower court’s order that would have allowed more people to qualify to vote by mail. The state’s Supreme Court has not weighed the merits of the case.

It’s the latest in an ongoing legal squabble that in the last three days has resulted in daily changes to who can qualify for a ballot they can fill out at home and mail in.

Federal and state courts are considering legal challenges to the state’s rules for voting by mail as Democrats and voting rights groups ask courts to clarify whether lack of immunity to the coronavirus is a valid reason for people to request absentee ballots. A resolution to that question is gaining more urgency every day as the state approaches the July primary runoff elections.

[…]

The court also set oral arguments for May 20 on Paxton’s request for it to weigh in on whether the appeals court erred and abused its discretion when it allowed Sulak’s order to go into effect.

See here and here for the background. I just want to remind everyone, early voting for the July primary runoffs begins on June 29, and mail ballots are already being sent to voters who requested them. People are going to have to start making decisions about how they’re going to vote. And whatever the state courts ultimately say, there are those federal lawsuits out there as well. This is going to be a whirlwind of uncertainty for some time. The Chron has more.

Appeals court upholds vote by mail order

Second round goes to the plaintiffs.

A state appeals court upheld a temporary order Thursday from a state district judge that could greatly expand the number of voters who qualify for mail-in ballots during the coronavirus pandemic, rebuffing Attorney General Ken Paxton’s effort to have the ruling put on hold while he appeals it.

In a 2-1 split along party lines, a panel of the 14th Court of Appeals of Texas said it would let stand state District Judge Tim Sulak’s ruling from last month that susceptibility to the coronavirus counts as a disability under state election law and is a legally valid reason for voters to request absentee ballots. Paxton has been fighting that ruling and had argued that his pending appeal meant the lower court’s ruling was not in effect.

[…]

“Eligible voters can vote by mail during this pandemic,” Chad Dunn, the Texas Democratic Party’s general counsel, said in a statement Thursday. “It is time for a few state officers to stop trying to force people to expose themselves to COVID-19 in order to vote.”

In response to the appeals court’s ruling, a spokesperson for Paxton said his office will “look forward to the Texas Supreme Court resolving this issue.”

See here, here, and here for the background. A copy of the court’s order is here, and of the dissent is here. If you believed that Paxton went to the Supreme Court even before the 14th Court ruled on this motion for the purpose of gaining political advantage, the 2-1 partisan split in this ruling is not going to dissuade you. The Supreme Court’s gonna do what the Supreme Court’s gonna do, but that seems to me to not be a great sign. Sorry to be a party pooper, but it’s hard to miss the symbolism of that. The Chron has more.

Speaking of the Supreme Court, they have requested a response from the counties named in Paxton’s writ of mandamus no later than 4 PM on Monday the 18th. I don’t think we’ll have to wait much longer to hear from them.

I should note that despite my pessimism in that first paragraph, there are some Republicans who are fine with pushing mail ballots to anyone who wants them. Like Kathaleen Wall, for example:

[Wall] has sent out mailers in recent weeks telling voters they have the “green light” to vote by mail and that the secretary of state has cleared them to do so if they are worried about contracting or spreading the virus by voting in person.

[…]

The controversy in the 22nd District has caught the attention of state officials. The secretary of state’s office says it “has been made aware of the mailings that have been sent out and have been in touch with representatives of the Wall campaign.”

“We have informed them that certain statements attributed to the Secretary of State’s office are categorically false, instructed them to update voters who have already been contacted, and to immediately cease further distribution,” a spokesman for the office, Stephen Chang, said in a statement.

Wall’s campaign says she is doing her best to keep voters up to date on the fast-changing developments around voting by mail, pointing to posts on her website and social media that have come in addition to the mailers. In a statement, the candidate defended sending out the vote-by-mail applications.

“I’ve distributed over 60,000 face masks to first responders and businesses in CD22 to make sure they have the tools they need to stay safe,” Wall said. “Sending out ballot by mail applications is the same thing. I’m making sure voters know they have options if they want to exercise it and meet the qualifications.”

However, Wall’s questionable vote-by-mail efforts go back to mid-April, when she sent out a mailer with the state seal telling the voters that they had received the “green light” to vote by mail and that their applications would be arriving soon. (Federal candidates are exempted from state law that prohibits the use of the state seal in political advertising.) The mailer also said, “Recently, the Texas Secretary of State ruled that voters’ concerns over contracting or spreading the COVID-19 virus and endangering their health by visiting a public polling place meet the election law requirements to be deemed eligible to vote absentee.”

Wall’s campaign used the same language in the subsequent mailer with the application, which featured the “Disability” box pre-checked.

As the story notes, that’s not exactly what the SOS said in that advisory, and indeed this is basically the Democratic plaintiffs’ position in the nine million current lawsuits that have been filed on the topic. Kathaleen Wall is an idiot who maybe doesn’t fully grasp the politics here. Or who knows, maybe this is a sincere statement of her beliefs, in which case all I can say is welcome aboard. I will admit, it’s still a little weird to me that this has become such a partisan issue, since one would think there are plenty of Republican voters who aren’t over 65 that might like to have this option as well. But here we are anyway, and now we have Kathaleen Wall on our side. Hooray?

Paxton tries a Supreme shortcut

They sure are keeping busy.

In a bit of judicial leapfrog, Texas Attorney General Ken Paxton is asking the Texas Supreme Court to weigh in on his interpretation of how voters can qualify for absentee ballots during the coronavirus pandemic.

Various lawsuits are pending over whether eligibility for mail-in ballots can be expanded to voters who risk contracting the virus by voting in person. Paxton believes it can’t, and Wednesday asked the state’s highest civil court to issue a relatively rare writ of mandamus preventing local election officials from doing so.

In a motion filed Wednesday, the Republican attorney general asked the Texas Supreme Court to order election officials in some of the biggest, largely Democratic counties in the state to follow his reading of existing eligibility requirements for absentee voting, arguing the court must step in quickly because those county officials intend to apply an “incorrect reading” of state law.

[…]

The election officials Paxton is targeting — county clerks or election administrators in Harris, Dallas, Travis, El Paso and Cameron counties — have generally indicated they will process mail-in ballots that cite a disability in accordance with the law and court rulings.

In his filing, Paxton argued that county election officials are refusing “to discharge” their duty to reject applications to vote by mail from voters who don’t qualify under the state’s existing eligibility criteria.

“They have instead determined that the coronavirus pandemic allows them to unilaterally expand the Legislature’s determination of who is eligible to vote by mail,” Paxton wrote. “To the local election officials of Travis, Harris, Cameron, Dallas, and El Paso Counties —all Respondents here —a ‘disability’ does not mean a ‘sickness or physical condition.’ Instead, it means a generalized fear common to all voters of contracting disease.”

It’s unclear how election officials would be able to reject applications from voters who use the disability category of eligibility as a result of the coronavirus pandemic.

Voters who cite a disability to receive a mail-in don’t have to provide any information beyond checking a box on the application form. Election officials can reject applications if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disability.

Paxton argued the election officials’ actions were “not only unlawful; they are also unnecessary” because the state is already making changes to the voting process during the pandemic. Earlier this week, Gov. Greg Abbott doubled the early voting period for the July 14 primary runoff.

This is of course in reference to the state lawsuit. As we know, Paxton had previously threatened county election officials who might be accommodating to people requesting mail ballots on the grounds that the original ruling only applied to Travis County and was stayed pending appeal. The TDP, the plaintiffs in the suit, filed a motion with the Third Court of Appeals opposing Paxton’s actions. I should note that this case has been transferred to the 14th Court of Appeals, which includes Harris County. The Trib story about the complaint filed against Paxton in Dallas County contains a reference to this. Here’s a copy of the briefing schedule for the 14th Court of Appeals, which looks to be set for a ruling in mid-June. Assuming the Supreme Court doesn’t take this out of their hands.

This is basically Paxton getting a second bite at the apple. It’s a writ of mandamus – you may remember, the thing that they acted on in 2015 when they ordered the city of Houston to allow the anti-HERO referendum to go forward – and not an appeal, since the appeals court hasn’t been heard from yet. They don’t have to do anything with this, they could just let the appellate court do its job. As the story notes, there’s no way for clerks to vet or verify anyone’s disability claim. I suppose either court could order clerks to shut up and not tell people that they have the right to ask for a mail ballot if they have a disability. I’m not exactly sure how that would work, but the law can be a funny thing. And of course, there are all those federal suits, over which the State Supreme Court has no jurisdiction. So who knows? I don’t know what else to say, we’ll just have to wait and see what they do. The Chron has more.

Criminal complaint filed against AG Ken Paxton

I should say “another criminal complaint”, this one over his bullying tactics about vote by mail.

MOAR MUG SHOTS

Two voting rights advocates have filed a complaint with the Dallas County district attorney, alleging Attorney General Ken Paxton committed voter fraud in each of the state’s 254 counties by contradicting a judge’s order expanding the availability of mail-in voting during the pandemic.

“Attorney General Ken Paxton’s letter intentionally misled Texas elections officials about eligibility to vote by mail,” said Kendall Scudder, one of the complainants. “Mail-in ballots aren’t where the election fraud is happening, it’s happening in the office of our indicted attorney general.”

Travis County District Judge Tim Sulak on April 17 issued a temporary injunction stating that any voter concerned about exposure to the coronavirus can avoid in-person voting and request a mail-in ballot by claiming a disability.

Paxton, a Republican who has argued disability claims should be reserved only for those who currently fall under that category, wrote in a filing that same day that Sulak’s order was automatically stayed when he filed an appeal.

[…]

Two attorneys reached by Hearst Newspapers agreed with Paxton’s assessment that the April 17 order was stayed when Paxton appealed.

Any appeal of an order that grants a temporary injunction or denies a plea to the jurisdiction, both of which occurred in this case, places an immediate stay on that order, said Dallas appellate lawyer Chad Ruback. On top of that, the Attorney General’s office noted in its appeal that governmental entities are entitled to automatic stays in this situation, under Texas law.

In the Dallas County case, complainants Scudder and Woot Lervisit, who live and vote in the county, say that under the Texas election code, their complaint should trigger a criminal investigation of Paxton’s conduct.

See here and here for the background. You can see the press release relating to this action here, a copy of the complaint here, and a copy of the tweets submitted as supporting evidence here. This is another one of those times when I don’t feel qualified to evaluate the action, but if as the lawyers quoted in the story indicate, Paxton was correct to assert that the order was stayed, then I don’t know what the case is for action against him. I presume the Dallas County DA is better positioned to answer that question, and we’ll know his answer by the action he takes. In the meantime, it’s at least fun to note the irony of Ken Paxton being tripped up by a voter fraud charge. I don’t expect to get any more out of this than that, but we’ll see.

UPDATE: The DMN notes that Dallas County DA John Creuzot declined comment on the complaint. It also reports that Paxton has asked one of the Houston-area appeals courts to vacate the Sulak ruling. I don’t understand the jurisdiction there, given that the lawsuit originated in Travis County, but that’s all the story says.

First hearing for TDP federal vote by mail lawsuit set for next week

Here we go.

U.S. District Judge Fred Biery has ordered a hearing on expanding vote-by-mail to all Texas voters in advance of the July 14 Democratic Party runoff election. The hearing, set for 9 a.m. May 15, will allow only one lawyer and one staff person from each side of the case, essentially the Texas Democratic Party (TDP) vs. the State of Texas, to make their arguments.

Also because of the novel coronavirus pandemic, the public will not be allowed to attend and the number of journalists will be limited, though Biery’s order states that “to give due respect to our tradition of open courts and the public’s right to know, the Court will try to provide audio live streaming through the Court’s website.”

[…]

Biery’s order acknowledges that instituting statewide universal mail-in balloting might not be effective, given the likelihood that appeals in the case might take the final decision past the July 2 deadline for requesting mail-in ballots for the runoff.

That’s the only story I’ve seen so far, so those are all the details you get. As a reminder, this is about the TDP’s federal lawsuit to allow more people to request absentee ballots, at least for the July 14 primary runoffs and SD14 special election. The state lawsuit filed by the TDP, which AG Ken Paxton is currently throwing a hissy fit over, and the federal age discrimination lawsuit filed by a group of young voters, are separate actions. The TDP had filed a request for a ruling by May 15 that orders the state to allow anyone who wants one to request a mail ballot. As this is a morning hearing, and I presume both sides have filed their briefs, we could very well get some kind of order by the end of the day. Mark your calendars for next Friday the 15th.

You got to dance with them what brung ya

Kenny Boy Paxton is looking out for you. If you are one of his rich donors.

Best mugshot ever

When a small county in the Colorado mountains banished everyone but locals to blunt the spread of the coronavirus, an unlikely outsider raised a fuss: Texas Attorney General Ken Paxton, who called it an affront to Texans who own property there and pressed health officials to soften the rules.

“The banishment of nonresident Texas homeowners is entirely unconstitutional and unacceptable,” Paxton said in a news release April 9, when his office sent a letter asking authorities in Gunnison County to reverse course.

An Associated Press review of county and campaign finance records shows Paxton’s actions stood to benefit an exclusive group of Texans, including a Dallas donor and college classmate who helped Paxton launch his run for attorney general and had spent five days trying to get a waiver to remain in his $4 million lakeside home. Robert McCarter’s neighbors in the wealthy Colorado enclave of Crested Butte are also Paxton campaign contributors, including a Texas oilman who has given Paxton and his wife, state Sen. Angela Paxton, more than $252,000.

Less than three hours after Paxton announced the letter, Gunnison County granted McCarter an exemption to stay, according to documents obtained by AP. The county says the timing was coincidental.

The depth of Paxton’s connections in the heart of the Rocky Mountains, which were not previously known publicly, raise questions about Texas’ top law enforcement officer using his office to lean on a secluded Colorado county as it scrambled to keep COVID-19 at bay. Paxton has at least nine donors in Texas who own property in Gunnison County, and who collectively have given him and his wife nearly $2 million in political contributions. He sent the letter even as his own state was requiring people arriving from New Orleans and New York to self-quarantine for 14 days.

Paxton spokesman Marc Rylander said in an email that “it is a normal practice for the attorney general to speak with multiple constituents from around Texas about issues pertinent to Texas residents.” Asked whether Paxton had spoken to McCarter or other donors before getting involved in Gunnison County, another spokeswoman, Kayleigh Date, said they could not reveal specific homeowners.

Here’s the thing: It doesn’t matter what Gunnison County did, or if this was a wrong that needed to be righted. The Attorney General, like all public officials, has a limited amount of time and resources to accomplish the things they want to accomplish. Do you think this was a good use of Ken Paxton’s time? Do you think it was an issue that was pertinent to the people of Texas? Lots of politicians do favors for friends. It’s the nature of politics and the nature of friendship. You can call it whatever you want, but the facts speak for themselves.

The fight over sick leave has to be at the state level

I get this, but it’s not going to work.

Mayor Sylvester Turner

The coronavirus outbreak is sparking a debate over paid sick leave in Houston, the largest U.S. city without a law requiring businesses to provide paid time off for workers who fall ill.

Labor leaders say the COVID-19 pandemic has bolstered their argument for a paid leave mandate, arguing such a policy would slow community spread of the disease here.

Mayor Sylvester Turner largely has ignored the push, making clear he will not take action on paid sick leave while the health and economic crisis continues to play out.

“Right now, the private sector is hurting, just like the public sector is hurting,” Turner said in an interview. “Businesses are taking it on the chin, and that’s been across the board: small, medium-sized, large. So, let’s get past this crisis, and then we’ll have an opportunity to have a robust discussion on the other side.”

As Houston and Harris County residents pass a month of stay-at-home restrictions to prevent local hospitals from becoming overwhelmed with patients, Turner and County Judge Lina Hidalgo are coming under intensifying pressure from business owners on the one hand who say they cannot survive more weeks of forced closures, and health officials on the other who say coronavirus testing remains too scarce to drop the restrictions.

Labor advocates and health experts have warned that many employees who lack paid sick leave will skirt federal guidelines and show up to work when they are ill because they cannot afford the lost wages from missing even a few days of work. Without a paid sick leave mandate, they say, “essential” Houston workers remain uncovered if their employers do not offer it and are exempted from a federal coronavirus paid leave package that contains broad loopholes.

“There is clear evidence from states and cities across the country that when workers have access to paid sick days, they’re more likely to stay home and take care of themselves,” said Vicki Shabo, a senior fellow for paid leave policy at the Washington, D.C., think tank New America.

[…]

Austin, Dallas and San Antonio have passed ordinances mandating paid sick leave, and each has been blocked or delayed by legal challenges that allege Texas’ minimum wage law preempts the ordinances.

Dallas’ paid sick leave policy, which would require employers to grant one hour of paid leave for every 30 hours an employee works, was halted by a federal judge March 30, two days before penalties for non-compliant businesses would have taken effect.

I’m sympathetic to the argument that now is a bad time for businesses to be asked to bear an extra expense. I’m even more sympathetic to the argument that now is a really really bad time to incentivize sick people to go to work. The problem is that as things stand now, there’s nothing the city of Houston can do about it. We could pass a sick leave ordinance, either by Council action or by referendum, and it would be immediately blocked by the courts, as it has been in those other cities. The only way forward is to change the state minimum wage law that is being interpreted by the courts as forbidding local sick leave measures. That’s not something that can be done in the short term. A Democratic-led House could pass such a bill next year, but as long as Greg Abbott and Dan Patrick and Ken Paxton are in office, it won’t go any farther than that.

So, as unsatisfying as it is to say, we have to win some more elections first before we can make this happen. The good news is that this is the best time imaginable to make the argument in favor of paid sick leave. The case for having sick workers stay home rather than infecting everyone they encounter has never been more clear, and likely will never be better received by the voters. Let the Republicans defend that position. There’s very much a fight to be had, and that’s where we need to have it.

Mask up

Time for the next step in virus mitigation.

Judge Lina Hidalgo

Harris County Judge Lina Hidalgo on Wednesday ordered residents to cover their faces in public, the latest effort by local governments to slow the spread of the novel coronavirus.

The new rules, which require residents 10 and older to cover their nose and mouth when outside the home, take effect Monday and last 30 days. Acceptable garments include a homemade mask, scarf, bandana or handkerchief. Medical masks or N-95 respirators are not recommended as they are most needed by first responders and health workers.

Under the order, the county’s 4.7 million residents must cover their faces at all times except when exercising, eating or drinking; the exemptions also include when individuals are alone in a separate single space, at home with roommates or family, or when wearing a mask poses a greater risk to security, mental or physical health. Violating the mask rules is punishable by a fine of up to $1,000, though Hidalgo urged police to use discretion.

Unlike previous restrictions announced by the city and county executives, Hidalgo’s mask order drew fierce, partisan rebuke, highlighting what has become a national political divide over coronavirus restrictions.

[…]

Employers at businesses deemed essential under Harris County’s stay-at-home order must provide face coverings and training to workers whose jobs require them to come into contact with colleagues or the public. Hidalgo has yet to determine whether to extend the stay-at-home rules, which expire April 30.

Hospitalization data suggests the curve of new cases is flattening here, Hidalgo said at a news conference Wednesday. The region still is susceptible to another wave of infections, she warned.

“If we get cocky, we get sloppy, we get right back to where we started, and all of the sacrifices people have been making have been in vain,” Hidalgo said while wearing a homemade mask. “Let’s not get complacent. Let’s remember that we still have work to do.”

Hidalgo said the mask rules were spurred by her team’s realization the outbreak would require a long-term health response that extends beyond the end of stay-home rules.

Houston Mayor Sylvester Turner endorsed Hidalgo’s plan. He thanked residents for their sacrifices to date and said he would announce a plan Thursday to distribute 70,000 masks to vulnerable residents.

Masks are a crucial tool to prevent a surge in cases as businesses and public spaces reopen, said Firas Zabaneh, an infectious disease expert at Houston Methodist. He said they also serve as a visual reminder to maintain social distancing.

“The public will be safer with masks on,” Zabaneh said. “As we ease the restrictions, more and more people are going to be interacting with each other.”

The Centers for Disease Control recommends wearing masks when social distancing is not possible, such as at a grocery store. Many people who have coronavirus do not show symptoms, and the disease can be spread through speaking, coughing or sneezing.

I omitted all the partisan criticism, which included a particularly whiny response from the police union president, because sniveling is pathetic and life is short. As the story notes, Laredo and Dallas and San Antonio have issued similar orders without any of the fuss; I’ll leave it to you to decide why the same thing from Judge Lina Hidalgo inspired such vitriol. The police guy went running to AG Ken Paxton to ask if she was allowed to do that, and he demurred, while reminding the cops that they do have the discretion to not issue citations.

Anyway, look. The way forward with this pandemic, certainly until we have an effective treatment regimen and eventually a vaccine, is going to include things like masks, plus continued social distancing and universal testing and a whole lot more hand sanitizer and bleach wipes. This is the new normal, whether we like it or not. It would be nice if everyone went along with this willingly, but we’ve already seen that a significant portion of the population doesn’t take any of this seriously. This is where we are.

Galveston and Montgomery Counties have not followed suit. For what it’s worth, they were behind the curve in issuing stay-at-home orders, too. With Greg Abbott’s forthcoming order to “reopen” the economy, it’s possible that Hidalgo’s order will be quite short-lived, since Abbott seems to have remembered that he doesn’t like letting local governments do things. As is so often the case lately, I have no idea what happens next. Buckle up, it’s gonna be bumpy. The Press has more.

Another view of the lawsuit over expanded voting by mail

From Ian Millhiser at Vox, who is decidedly more pessimistic about the plaintiffs’ chances. He starts by noting how restrictive Texas’ existing vote-by-mail law is.

The law only allows Texas voters to obtain an absentee ballot under a very limited list of circumstances. Voters may obtain an absentee ballot if they plan to be absent from their home county on Election Day, if they have a “sickness or physical condition” that prevents them from voting in person, if they are over the age of 65, or if they are jailed.

It is far from clear that a healthy person who remains at home to avoid contracting coronavirus may obtain an absentee ballot.

Texas Democratic Party v. Hughs, a lawsuit filed by the state Democratic Party, seeks to fix this law — or, at least, to interpret the law in a way that will ensure healthy people can still vote. But the lawsuit potentially faces an uphill battle in a state court system dominated by conservative judges.

All nine members of the state Supreme Court are Republicans, and Republican Attorney General Ken Paxton filed a motion seeking to intervene in the lawsuit — a sign that he intends to resist efforts to prevent this law from disenfranchising voters.

The stakes in this case are astoundingly high. As Texas Democrats note in their complaint, voters are “now heavily discouraged” from even leaving their homes “by various government orders and are being discouraged in an enormous public education campaign.”

Even if the pandemic were to end by July 14, when the state plans to hold several runoff elections, “certain populations will feel the need and/or be required to continue social distancing.” Millions of voters could potentially be forced to choose between losing their right to vote and risking contracting a deadly disease.

[…]

Whether these Texans can get an absentee ballot could end up depending on how the courts interpret the phrase “physical condition.”

On the one hand, the law explicitly labels this provision as an accommodation for people who have a “disability.” The words “physical condition” also appear in conjunction with the word “sickness,” which implies that those words should be interpreted to refer to some sort of disabling condition that only a subset of Texans possess. Often, when a law uses a general term in the context of other, more specific terms, courts will assume that the general term should be given a narrow reading — one similar to the specific terms.

On the other hand, the literal meaning of the words “physical condition” is much more expansive. As a team of civil rights lawyers, including several from the ACLU, argue in a motion suggesting that the state law should be read expansively, “everyone has a physical condition” that prevents them from appearing at their polling place during a pandemic — the physical condition of being susceptible to coronavirus.

Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate. One judge might argue that the words “physical condition” should be read expansively, because that is the ordinary meaning of those words. Another might argue that they must be read in context with words like “sickness.”

The problem facing the Texas Democratic Party is that, when a fair judge acting in good faith could legitimately read a law in two different ways, it is very easy for a partisan judge to choose the interpretation they prefer. And every one of the nine justices on the Texas Supreme Court is a Republican.

Because older voters tend to prefer the GOP, the Texas Republican Party has a clear interest in preserving a legal regime that allows voters over 65 to obtain an absentee ballot but makes it much harder for younger voters to do so.

That said, if Democrats lose this particular lawsuit, that does not necessarily mean millions of Texans will lose their right to vote. It’s possible a federal court could rescue Texas voters in a separate lawsuit — one that most likely has not even been filed yet — holding that the unique burden the coronavirus pandemic imposes on voters renders Texas’s strict absentee ballot law unconstitutional.

This was written before the TDP filed its federal lawsuit, so bear that in mind as you read. I appreciate the analysis, which is the first in-depth look at the crux of the issue that I’ve seen. It’s a little crazy that it all hangs on the interpretation of two words, but here we are. I agree that in normal times one could reasonably interpret this either way, but if there’s ever a time for a bit of leeway, this is it. It’s not terribly surprising to me that the AG’s office has petitioned to intervene in the case – this is standard procedure for when the state gets sued, though the SOS does have its own attorneys. I’m more keen to know what if anything Greg Abbott thinks – if there’s going to be some influence on the court, it’ll come from him. There are definitely plenty of Republican elected officials who are in denial about the situation, and that could lead to pressure on Abbott to take a line-in-the-sand stance. Hasn’t happened yet, but that doesn’t mean it can’t or it won’t.

It’s also possible that the delayed July 14 primary runoffs will go off without any problems and in-person voting is fine, thus leading to a sense of complacency for November. Or maybe things will still be bad, or at least bad in the more-Republican rural areas, and that might make some people more aware of the fact that everyone has something to lose if we don’t plan better. That recent SOS advisory leaves me with some hope for a settlement in the existing litigation. The real tell will be if and when the usual agitators on the right start whipping up a frenzy. Remember also that the Republicans are busy trying to register voters this year – they have a stake in getting whatever new voters they sign up to the polls, too. Like I said, I have hope for a settlement, but it’s too early to tell which way the wind will blow.

Still trying to do something about the coronavirus risk in the jail

Time is extremely limited for this.

A federal judge Friday asked lawyers to hammer out a plan for releasing about 1,000 indigent inmates detained on bonds of $10,000 or less amid fear of a COVID-19 outbreak at the third largest jail in the country. The judge indicated she would take up the fate of another 3,400 people in the Harris County Jail awaiting trial on higher bonds next week.

The instructions by Chief U.S. District Judge Lee H. Rosenthal came in response to an emergency request Friday by the team of lawyers who challenged the county’s bail policies. They argued that thousands of poor defendants trapped in the jail simply because they couldn’t afford bail should be granted immediate bail hearings or be released.

The pleading laid a grave situation at the hands of a judge who has made many tough decisions in the criminal justice realm.

“A public health catastrophe of historic proportion looms in the Harris County Jail. Only this Court can avert it,” the motion says. “With every passing hour, the risk of disaster increases. All eyes turn to this Court in this dire moment.”

The bail lawsuit motion for a temporary restraining order and preliminary injunction seeks release of about half the jail’s population of nearly 8,000 if they cannot be afforded immediate bail hearings. This would mean thousands of people charged with nonviolent offenses would be allowed to await trial on bond outside the facility, as they would otherwise be able to do if they could post cash bond.

Other local officials, including the sheriff, state district judges and top county official have been tackling the potential public health threat from different angles over the past two weeks, seeking compassionate releases of medically vulnerable inmates, bonds for those accused of nonviolent offenses, or some cross-section of the two groups.

But early Friday lawyers from Civil Rights Corps, the Texas Civil Rights Project and pro bono counsel from Susman Godfrey, stepped in with a constitutional approach to the jail problem that could allow much more drastic cuts in the population than the compassionate release plans outlined by the sheriff and the county judge.

Rosenthal asked the lawyers for indigent defendants and attorneys for the sheriff and the county to assemble by Monday a list of thousands of people who might qualify for release based on their bond amounts, charges, criminal histories and risk factors. In addition, the judge indicated she would move swiftly on a subset of the indigent defendants who can’t pay their bond. She asked for confirmation that 1,000 or so people being held on bonds of up to $10,000 were not subject to other holds or detainers.

The sheriff and county officials told the judge that they had no objection to this first group being released if they fit the judge’s criteria. According to a lawyer for the plaintiffs, the only agency that opposed the release of those facing $10,000 bonds was the Texas Attorney General’s Office.

Sheriff Gonzalez had been working on this for the past week, trying to get individual judges to allow some inmates to be released, but the process was slow. County Judge Lina Hidalgo had been working on an executive order that would have released a larger number of inmates, but she shelved it after objections from the Attorney General’s office; you can read that story for the details. And I know, we’re all going to be murdered in our sleep by a rampaging horde of pot smokers and check kiters, but let’s do pause for a moment and consider what the alternative might be:

In another effort to address the issue, Harris Health System leaders on Friday sent a letter asking for the release of defendants with nonviolent offenses.

The county medical system’s president and CEO stressed that an outbreak in the Harris County Jail is not a matter of if, but when.

“The Harris County Jail and other large correctional facilities pose a real and immediate danger to the health of the community,” Esmaeil Porsa said. “An even limited outbreak of COVID-19 in the Harris County Jail has the potential to overwhelm our already overburdened hospital system. If this happened — and the likelihood is high — it could leave many vulnerable people in our community without access to care.”

Porsa urged the county to consider prioritizing inmates over 60 with pre-existing conditions such as cancer, diabetes, asthma and chronic pulmonary disease, heart disease and HIV. Jails are known to have higher concentrations of people in the high-risk group, he said.

He added that social distancing is nearly impossible, with dorm settings holding between 20 and 60 people in a close space. And quarantine is also unfeasible when inmates are booked in and out of the jail on a daily basis.

We could just let them all die, I suppose. I’m sure Dan Patrick would approve. I would rather not do that.

UPDATE: And now Greg Abbott is involved, and I’m confused.

As the first Harris County inmate tested positive for COVID-19 Sunday, Gov. Greg Abbott issued an executive order blocking any release of inmates from jails and prisons accused or convicted of violent crime.

“Releasing dangerous criminals from jails into the streets is not the right solution and doing so is now prohibited by law by this declaration,” Abbott said at an afternoon briefing.

The news comes as federal, state and local government officials continued to squabble over details of what a jail release would look like as they attempted to prevent a catastrophic outbreak among the approximately 8,000 people incarcerated at the downtown facility.

The governor was referencing Attorney General Ken Paxton’s motion to prevent Harris County from releasing 4,000 people awaiting trial on felonies, saying such a move would “allow dangerous criminals to roam freely and commit more crimes during the ongoing COVID-19 pandemic.”

“Protecting Texans is one of my highest priorities. It is vital that we maintain the integrity of our criminal justice system and continue to enforce state law during this pandemic,” Paxton said. “My office will not stand for any action that threatens the health and safety of law-abiding citizens.”

Hours earlier a federal judge convened an emergency hearing to address plans that plaintiffs in a federal civil rights case had hammered out over the weekend with lawyers for the sheriff and the county judge to release inmates accused of some nonviolent offense.

An official from Paxton’s office appeared telephonically at that hearing and said the AG planned to appeal an order by the federal judge to the 5th U.S. Circuit if it called for any blanket releases.

The judge set a hearing for Tuesday to address a possible appeal.

There wasn’t anything in the previous story about people accused or convicted of violent crimes, hence my confusion. I assume there are still plenty of people in the Harris County jail for misdemeanor charges, so it’s not at all clear to me what the extent of the dispute is. Maybe later versions of the story will make that more clear.

UPDATE: There’s now a more detailed version of the Chron story and also a Trib story, but this post is too long already. I’ll be back with more tomorrow.

Of course he thinks that’s “essential”

Doesn’t get any more on-brand than this.

Best mugshot ever

Gun stores are essential business and should be allowed to remain open during the COVID-19 pandemic, Texas Attorney General Ken Paxton said Friday.

Paxton said in his nonbinding opinion that state law prevents cities and counties from “adopting regulations related to the transfer, possession, or ownership of firearms, or commerce in firearms.”

Rep. Dustin Burrows, R-Lubbock, on Tuesday requested that Paxton’s office weigh in on whether firearm sales can be listed as essential businesses by local officials, as businesses across the state have shuttered due to shelter-in-place orders designed to slow spread of the new coronavirus.

“Having access to tools of self-protection, hunting and for keeping your property safe and secure is always essential. It’s even more essential for access during times of uncertainty and emergency,” Burrows said in a written statement.

Many cities and counties had not designated gun retailers, ranges or manufacturers as essential businesses in their stay-at-home orders, Burrows said in his letter. However, San Antonio and Dallas County did exempt the fire arms businesses.

“It does not appear that cities or counties have the authority to restrict the transfer of firearms, even during a natural disaster,” Burrows wrote in his request.

The opinion comes less than 72 hours after the agency received Burrows’ request — a remarkably fast turnaround on a process that routinely takes weeks or months.

That’s because this process normally requires research and inquiry, and leave open the possibility of an answer that doesn’t conform to one’s initial inclinations. Couldn’t take any chances on that here, obviously. People need to be able to defend themselves against that virus. I recommend very small-caliber bullets.

AG opinions are not binding, of course, so a city or county could go ahead and impose a ban on gun stores anyway if they wanted to. That would leave it up to a court to decide; there’s a fight over this already happening in California, where gun stores were (also not surprisingly) not classified as “essential”. I rather doubt any Texas municipality would want to expend that kind of effort when there are more important things to do, but they could if they chose to. The whole thing is ridiculous, but here we are.

Ken Paxton does Ken Paxton thing

Film at 11.

Best mugshot ever

Texas Attorney General Ken Paxton’s office is not defending a state agency that is being sued for punishing a judge who refuses to officiate gay marriages.

It’s the most recent in a handful of cases in which Paxton, a Republican, has stepped away from one of the basic requirements of his job because the state’s actions conflict with his views of the Constitution.

Just days after the 2015 Supreme Court decision legalizing same-sex marriage, Paxton issued a legal opinion arguing that Texas clerks and judges with religious objections could not be forced to officiate those marriages or process the paperwork. In the nonbinding opinion, Paxton, also pledged to “be a public voice for those standing in defense of their rights.”

That argument will be tested in Texas courts for the first time after Justice of the Peace Dianne Hensley of Waco sued the Commission on Judicial Conduct for issuing her a warning last year. Since 2015, the general practice in Texas has been that judges either perform all types of marriages or none, if they have religious objections to same-sex marriages. But Hensley argued she could continue officiating straight marriages while referring same-sex couples to others because of the conflict with her religious beliefs.

The attorney general would have been expected to represent the commission as part of his charge to defend state agencies, putting Paxton in the awkward position of arguing against his 2015 opinion.

Instead, the attorney general’s office is not representing the agency.

“We believe judges retain their right to religious liberty when they take the bench,” spokesman Marc Rylander said in a statement.

Jacqueline Habersham, interim executive director of the Judicial Commission, has so far acted as counsel for the commission in the case. Habersham declined to comment.

See here and here for the background. The Trib notes another dimension to this.

Paxton declined to defend a different state agency, the Texas Ethics Commission, in a lawsuit filed years ago by Empower Texans, a hardline conservative group that has been an important political ally to him. And he has opted not to defend state laws, like the Texas Advance Directives Act, when they conflict with his interpretation of the Constitution.

Hensley is represented in the case by the First Liberty Institute, a high-profile Plano-based religious liberty law firm with deep ties to Paxton’s office that reach back to the earliest days of his political career. Hensley’s lawyer, Jonathan Mitchell, is a former solicitor general of Texas. And Paxton and the First Liberty Institute have often been allies in religious liberty fights in Texas, collaborating on a lawsuit against the city of San Antonio after it banned Chick-fil-A from opening a location in its airport. Jeff Mateer, now Paxton’s top aide, worked as the firm’s general counsel before joining the attorney general’s office.

Kelly Shackelford, the group’s president and CEO, has endorsed Paxton and contributed to a legal defense fund Paxton has used to fight off a four-year-old criminal indictment for securities fraud.

Nothing ol’ Kenny won’t do to help his buddies. In this sense, it’s just as well that he’s peaced out of the litigation, because literally any alternate arrangement for the State Commission on Judicial Conduct, whether they represent themselves or hire an outside firm, would be better than having an attorney that’s biased against you as your advocate. The solution here is the same as it’s ever been – we need a better AG. We tried in 2018, we’ll need to finish the job in 2022. He’s not going to change, we have to swap him out.

We’re not going to get an independent redistricting commission

Nice to think about, but the set of circumstances that might lead to it are exceedingly narrow.

Most of the seven states that have independent commissions adopted them by a citizens’ initiative. Since Texas doesn’t have that option, the only way it would happen would be if lawmakers voluntarily gave up their redistricting power.

Kathay Feng, national redistricting director of the progressive government watchdog group Common Cause, said that’s unlikely to happen in Texas, but not impossible.

“The reality is that when a legislature is looking at potentially split control or the changeover of control from one party to another, they’re the most likely to entertain the possibility of redistricting reform,” Feng said.

Rice University political science professor Mark Jones said it would take a unique set of circumstances.

“It would take us reaching a tipping point where Republicans are pessimistic about their prospects for retaining a majority, but Democrats are also pessimistic about their prospects for taking a majority as well,” Jones said.

I think Jones’ assessment is basically accurate, but it’s important to understand what Republican pessimism about retaining a majority means. We’re talking about them being afraid that they might face unified Democratic government in 2031, the next time redistricting will come around. And not only must they fear this thing that might happen ten years and three statewide elections from now, they must conclude that their best option now would be to curb that future theoretical Democratic hegemony via the creation of an independent redistricting commission. All this happens following a Democratic takeover of the State House, because otherwise Republicans can do what they’ve done before, which is draw whatever districts they want without fear. You see what I mean by exceedingly narrow?

Let’s keep one other thing in mind here. If we do get a Democratic State House, Republicans can still push for whatever maps they want for the SBOE, the State Senate, and the State House. That’s because if the two chambers can’t agree on maps for those three entities, the job gets thrown to the Legislative Redistricting Board, which is the Lite Governor, the Speaker, the AG, the Comptroller, and the Land Commissioner. In other words, a Board on which Republicans would have a 4-1 majority, and thus no trouble passing those Republican maps. The one map that would still be up in the air would be the Congressional map. If there is no map passed legislatively, it gets thrown to a federal court, over which neither side would have any control.

There is room in this scenario for some compromise. Republicans would prefer not to let a court do this work. Democrats would of course like to have some influence in the mapmaking process. You can imagine an agreement to draw maps for all four entities – Congress, SBOE, Senate, House – that leans towards incumbent protection rather than greatly advantaging or disadvantaging one party over the other. If that happens, you could also imagine them including an independent commission as a bonus Grand Bargain, but that seems a bridge too far. But compromise maps that mostly don’t make any incumbents’ lives too difficult, that I can see maybe getting done.

Maybe. The situation I’ve just described here is like what happened in 2001, which was the last time Dems controlled the House. The LRB drew the state maps, which led to the massive GOP takeover in the 2002 election, and a court drew the Congressional map. And then, once Republicans had control of the House, they went back and redid the Congressional map. That was the original, stated motivation when Tom DeLay pushed for re-redistricting in 2003: The Congressional map should be drawn by the legislators, not by a court. Obviously, they wanted a map that was much more favorable to Republicans, but that was the original reason they gave. It seems to me that this is a very plausible outcome in 2021 as well – the Republicans decide to let a court draw the map, which in all likelihood would be quite deferential to incumbents anyway, then take their chances on retaking the House in 2022 and doing a new Congressional map again. Hey, it worked once before, and now they have a more favorable Supreme Court to back them up.

Honestly, this may be the single most likely scenario – the LRB draws the state maps, a court draws the Congressional map, and everything hinges on the 2022 election. Maybe Dems keep the State House. Maybe we manage to elect a Democratic Governor, who could then veto any new Congressional map. Maybe Republicans win and do their thing. Heck, even in the Great Map Compromise scenario, who’s to say that Republicans wouldn’t tear it all up and start over in the event they retake the House and retain the Governor’s Mansion? I’d put money on that before I placed a bet on a redistricting commission. 2031 is a long, long way away. It’s not at all irrational to prioritize the now over what maybe could possibly happen if everything goes wrong.

Who sues first?

It matters whether Harris County or the state of Texas is first to the courthouse against an industrial polluter.

As chemical plant explosions and fires have disrupted lives and raised air-quality concerns in the Houston area this year, the state and its most populous county have been jockeying to take the lead in penalizing polluters.

The state’s more active role has aroused suspicions among some local officials and environmentalists, who believe state leaders with a record of pro-business actions may be trying to take control to soften the blow of any court rulings against major corporations.

“It’s obvious there’s been an attempt to limit Harris County legal office from pursuing these cases,” said Neil Carman, a former air inspector with the Texas Commission on Environmental Quality who now works with the Sierra Club’s Lone Star chapter.

The legal maneuvering reflects growing public concern about environmental disasters in the Houston area and the ongoing tug of war between the Republican-led state government and officials in major metro areas over the setting of policy.

Who sues first dictates not only where the case will be heard, but also where the money will go if there are civil penalties. If Harris County leads with the state being a party to its lawsuit, the money is split between both parties. But if the state sues without the local government’s involvement, it goes back to the state’s general revenue

County officials say they have to sue to have a role in the process and to make sure companies are held accountable for the damage they cause. State lawmakers say that such suits are redundant and that there needs to be a statewide approach; the Legislature has passed bills restricting local governments in such cases.

“It’s not efficient, and it’s not a good way to function,” said Rock Owens, special assistant Harris County attorney for environmental matters. “If you have an emergency that requires immediate attention, that’s a reason to move quickly. But I just have to move quickly to make sure Harris County keeps a seat at the table, and that’s an unnecessary use of resources.”

In the end, he added, “everybody loses.”

See here and here for some background. There’s no question that the state is doing this to block Harris County from taking stronger action against the big offenders. The track record could not be more clear. Harris County has done pretty well regardless, and if you listened to my interviews with the County Attorney candidates you should feel confident that that will continue, at least until such time as the Lege clips the county’s wings further. We all know what we need to do to keep that from happening.

Anti-gay Waco JP sues for the right to be an anti-gay JP

Ugh.

A Waco judge who received a public warning last month for refusing to officiate same-sex marriages filed a lawsuit against the state agency that issued the warning, claiming the governmental body violated state law by punishing her for actions taken in accordance with her faith.

The First Liberty Institute, a high-profile Plano-based religious liberty law firm closely aligned with the Texas Attorney General’s Office, will represent the judge, Dianne Hensley, in the lawsuit filed Tuesday in McLennan County District Court.

Shortly after the U.S. Supreme Court asserted the constitutional right for same-sex couples to marry in the landmark 2015 Obergefell decision, Hensley refused to officiate any weddings. But in August 2016, she decided to resume officiating weddings between men and women, and said she would “politely refer” same-sex couples who sought her services to others in the area.

“For providing a solution to meet a need in my community while remaining faithful to my religious beliefs, I received a ‘Public Warning.’ No one should be punished for that,” Hensley said in a statement.

Hensley, who claims the state violated the Texas Religious Freedom Restoration Act, is seeking a declaratory judgment from the court decreeing that any justice of the peace may refuse to officiate a same-sex wedding “if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.”

[…]

Ricardo Martinez, Equality Texas CEO, said in a statement that as a justice of the peace, Hensley took an oath “to serve all Texans.”

“These elected officials continue to waste taxpayer money in an obsession to discriminate against gay and transgender Texans. This is not what Texans want or expect from elected officials,” Martinez said. “Discrimination of any kind is unacceptable. Their actions are mean spirited, futile, a waste of taxpayer money and most importantly, it’s wrong.”

See here for the background. Look, if Judge Hensley had “politely referred” mixed-race couples to other JPs because her religious beliefs were that only people of the same race should get married, no one would take her seriously. If she were a clerk at the DMV who refused to process drivers license applications from women because her religious beliefs were that women should not drive, she’d be fired on the spot. As a public servant, she serves the whole public, not just the public she approves of. That means she can perform weddings for anyone who comes before her, she can perform no weddings as she had originally chosen, or she can find another line of work. It’s that simple.

This was filed in a state court, as the allegation is that the “public warning” violated a state law. I feel like this will eventually wind up as a federal case, especially if she wins. It’s an open question at this point whether the AG’s office will represent the defense, or the State Commission (which is authorized to defend itself) will do it. All things considered, I’d prefer the latter. This case is going to be a hot mess, so buckle up for it. The Waco Tribune has more.

Last bail lawsuit hearing

At least I assume it’s the last one. I’ve been thinking this was all over but for the formality for months now, so what do I know?

Dianna Williams has witnessed the “collateral damage” of jailing on the fabric of a family. The 61-year-old criminal justice advocate told a federal judge Monday that for generations, her relatives lived paycheck to paycheck and could not afford cash bail when her father and then her brother and her son were held pretrial on low level drug charges.

Mary Nan Huffman offered an opposing take to the judge presiding over a deal upending Harris County money bail for low level offenses. She recounted how her friend was walking with her 3-month-old when a man in a red truck trailed her and later showed up in her yard, masturbating with a knife in his hand. Under the new bail deal, the man would never see a judge and no one would hear that he was a three-time felon who’d been to prison for rape, indecent exposure or kidnapping, said Huffman, a spokesperson for Houston Police Officers’ Union.

Ultimately, the sheriff who oversees the third largest jail in the country sought to assuage fears of constituents on both sides of this contentious issue, telling Chief U.S. District Judge Lee H. Rosenthal the consent decree approved last summer provides fundamental guarantees of justice enshrined in American law and warning against the inclination to let scary scenarios involving particular cases be the foundation of a bail system.

“I don’t think it’s effective for us to develop public policy on outliers,” Sheriff Ed Gonzalez said during the court gathering known as a fairness hearing. “We have to rely on research and facts.”

The hearing attended by six misdemeanor judges who support the historic settlement and three commissioners court members, two of whom oppose it, and about 100 stakeholders lasted three hours, with the judge saying she would consider the input and issue an order soon.

[…]

In a typical class action, a fairness hearing offers class members a chance to express concerns with a settlement. The hearing Monday was unique in that nearly all the speakers were not parties in the lawsuit.

Here’s a preview story of the hearing. I think we all know the basic outline at this point, so all I really care about is when we’ll get the final order from Judge Rosenthal. And then we can relitigate everything in the 2020 elections.

Abbott and Paxton threaten transgender child

I’m utterly speechless.

Top Texas Republicans have directed the state’s child welfare agency to investigate whether a mother who supports her 7-year-old child’s gender transition is committing “child abuse” — a move that has alarmed an already fearful community of parents of transgender children.

Gov. Greg Abbott declared via tweet Wednesday that two state agencies, the Department of Family and Protective Services and the Texas Attorney General’s Office, are looking into a dispute between divorced North Texas parents who disagree on whether their child should continue the process of transitioning from male to female, a path that could culminate, when the child is years older, in medical interventions.

In a letter Thursday to the state’s child welfare agency, First Assistant Attorney General Jeff Mateer declared that the child — who identifies as a girl, according to testimony from a counselor and pediatrician — is “in immediate and irrevocable danger.”

“We ask that you open an investigation into this matter as soon as possible and act pursuant to your emergency powers to protect the boy in question [from] permanent and potentially irreversible harm by his mother,” Mateer wrote, repeatedly referring to the 7-year-old as a boy. Mateer’s nomination to the federal bench was withdrawn in 2017 after revelations that he had called transgender children part of “Satan’s plan.”

A spokesman for DFPS said the agency’s “review of the allegations is already underway.”

The case’s path to public discourse began with the child’s father, Jeff Younger, whose blog has generated a maelstrom of right-wing outrage, including from U.S. Sen. Ted Cruz, R-Texas, who called the child “a pawn in a left-wing political agenda.” Younger, who also appeared at a rally at the Capitol this spring, does not agree with his ex-wife that his child is transgender. In blog posts, he has claimed his child could face “chemical castration.”

In reality, experts say, the transition process for prepubescent children does not involve medical intervention; instead, it consists of social affirmations like allowing children to wear the clothes they like, employ the names and pronouns they prefer, and paint their nails if they choose. During puberty, a transgender child might, with the consultation of a doctor, begin to take puberty blockers, reversible drugs that can stop puberty and the gender markers that come with it, like a deepening voice, the development of breasts or starting a period. Later on, experts say, transgender young adults might explore the option of surgery.

In a court ruling Thursday that granted the parents joint custody, Dallas Judge Kim Cooks noted that there was never a court order for the child to undergo medical treatment, according to The Dallas Morning News. Indeed, the mother, Anne Georgulas, had requested that Cooks require mutual consent before the child underwent any treatment, the Morning News reported.

So yes, this is Greg Abbott and Ken Paxton and Ted Cruz and the rest getting involved in a marital dispute. Am I the only one who remembers when Republicans claimed to be about getting government out of people’s lives? However true that may have been once, it sure isn’t the case now.

This is nothing short of an authoritarian move by Abbott. The governor appoints the head of the Department of Family and Protective Services. How much faith are you going to have in the outcome of that investigation? Or the investigation by the AG’s office, under Jeff “transgender people are satan’s spawn” Mateer, for that matter? Oh, and I haven’t even mentioned yet that they made the child’s name public, so everyone who agrees with them can force their own opinion on her as well. How lovely.

And all because they disagree with this child’s mother about what the child is allowed to wear, and they had the power to stick their noses in. They won’t stop this child from being transgender, any more than they could stop her from being left-handed or allergic to peanuts. They will cause a lot of damage trying, though. We cannot vote them out of office soon enough.

One thing our state loves spending money on

Defending unconstitutional anti-abortion laws in the courts.

As Texas defends abortion laws in federal court that mandate fetal burials and seek to outlaw certain medical procedures, the state has been ordered to pay pro-abortion attorneys $2.5 million — fortifying women’s reproductive rights groups that have repeatedly sued over restrictions passed by the state Legislature.

The August order from a federal judge in Austin is seemingly the final decision in a high-profile battle over a 2013 Texas abortion law the U.S. Supreme Court eventually struck down as medically unnecessary and thus unconstitutional. The law, which was in effect for three years, required abortion providers to comply with all the regulations for ambulatory surgical centers, forcing many to undergo expensive renovations, and required their physicians to obtain admitting privileges at a nearby hospital.

The judge’s order brings the state’s total cost for defending those now-defunct pieces of the law to an estimated $3.6 million.

“Passing regulations that are blatantly unconstitutional, and then wasting people’s resources to fight them, costs money and precious resources and time. And people are harmed in the process,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, an abortion provider and lead plaintiff in the case who notes that half of the state’s abortion clinics closed before the Supreme Court’s 2016 ruling. “That is a precious resource of Texans’ dollars being used toward that.”

Because the state lost the case, U.S. District Judge Lee Yeakel ruled it must pay the plaintiffs $2,297,860 attorney’s fees, $170,142 in nontaxable expenses and $95,873 in other costs. The amount represents nearly half of the $4.7 million in costs the plaintiffs say they incurred preparing and trying the case. The Texas attorney general’s office did not contest the judge’s ruling.

The award for the opposing attorneys is more than double the nearly $1.1 million the attorney general’s office reported spending on its own attorney’s salary, overhead, travel expenses and other costs associated with defending the law, according to open records obtained by the Texas Tribune in 2016.

Hardly the first time – that 2016 SCOTUS ruling cost the state even more – and until we get a different government, hardly the last time. The AG’s office declined to comment for the story, but we both know that Ken Paxton would gladly spend down the entire Rainy Day Fund in defense of these laws. It’s not really a cost, as far as they’re concerned. It’s an investment.

On a related note:

[Joe Pojman, executive director of the Texas Alliance for Life which advocates for stiffer abortion regulations,] said anti-abortion advocates need to think long-term if they want to overturn Roe v. Wade, which established legal precedent protecting a woman’s right to an abortion. The long-time activist said he is not confident the makeup of the U.S. Supreme Court is favorable to overturning Roe v. Wade — but it could be in a few years.

“We are telling our people that they need to stay focused on re-electing President Donald Trump because he has a track record of nominating justices who are possibly willing to take an honest look at Roe v. Wade,” said Pojman.

I’ve lost count of the number of times that people who voted for Ralph Nader in 2000 and people who voted for Jill Stein in 2016 have ridiculed the notion of judicial appointments as an electoral issue. Joe Pojman would like to thank them for their dedication to their principles.

Red flag

This seems like maybe it’s a problem.

A report out Wednesday by the San Antonio Express-News found that a gun owner in Texas had sent more than 100 pages of racist and violent letters to the Texas Attorney General’s office threatening to kill undocumented immigrants over the course of a year and a half, and that nothing was done to stop him or to communicate the threat to local authorities.

“We will open fire on these thugs,” the white man who allegedly sent the messages wrote in an email to the office. “It will be a bloodbath.”

Over the same period, local officers in San Antonio responded to 911 calls made by and about the man, and visited his house, on at least 35 occasions. However, because he had never seemingly committed a crime, police did not arrest him or take legal action. Nearby neighbors told the Express-News that the man’s home is covered in security cameras and that he often emerged holding a shotgun.

When alerted by a reporter at the Express-News of the threats made to the Attorney General’s Office, the police force did respond. “Since you’ve made us aware of those threats, our fusion center and our mental health unit have reached out to the AG’s office and are trying to work something to make a case against [the alleged suspect Ralph] Pulliam,” Sargent Michelle Ramos told the paper. “They’re going to investigate that.”

The threats and lack of communication by Republican Texas Attorney General Ken Paxton to local police takes on a new light in the wake of two mass shootings in Odessa and El Paso. The El Paso shooter had long written about his hatred for immigrants and his mother had reportedly called the police before the shooting because she did not think her son should own a gun.

“These messages are clearly threats of deadly force against San Antonians based solely on the color of their skin,” wrote State Representative Trey Martinez Fischer in a letter to Paxton. “It is deeply alarming to me that despite the large volume and explicit nature of the messages from Mr. Pulliam, the Office of Attorney General has taken so long to cooperate with local law enforcement.”

The story was published in the print edition of the Sunday Chronicle, but there’s no link for it yet on the Chron site and the E-N story is behind the paywall, so this is the best I can do. Do bear in mind that Ken Paxton has been actively encouraging people like this to report their complaints to his office, so it’s no wonder he’s being tight lipped about this. Dude’s one of his best customers. In the meantime, while we hope this guy doesn’t follow through on any of the many threats of violence he has made, let’s see if any of our Republican leaders, who have been trying to convince us that they might actually Do Something this time, will at least voice support for disarming this guy. I’m not going to hold my breath.

Here come the Rangers

I don’t know where this is going to go, but it sure will be fun getting there.

Rep. Dennis Bonnen

The Texas House General Investigating Committee voted Monday to request that the Texas Rangers look into allegations against House Speaker Dennis Bonnen and one of his top lieutenants in the lower chamber.

The committee vote, which was unanimous, followed roughly an hour of closed-door deliberations among the five House members who serve on the panel. At issue is whether Bonnen, an Angleton Republican, and state Rep. Dustin Burrows, R-Lubbock, offered hardline conservative activist Michael Quinn Sullivan media credentials for his organization in exchange for politically targeting a list of fellow GOP members in the 2020 primaries.

[…]

State Rep. Morgan Meyer, a Dallas Republican who chairs the House committee, said Monday that the Texas Ranger’s Public Integrity Unit “will conduct an investigation into the facts and circumstances surrounding” that meeting between Sullivan, Bonnen and Burrows. Meyer also requested that the Texas Rangers provide a copy of its final investigative report to the committee at the end of its investigation.

See here for the background. What might happen next could get complicated.

Aside from the quid pro quo aspect of the scandal, exchanging money in the Capitol or directing expenditures from a Capitol office has been a Class A misdemeanor ever since the Legislature reacted to a 1989 public outcry over the late chicken producer Lonnie “Bo” Pilgrim handing out $10,000 checks to nine senators in the Senate chamber during a hearing on workers compensation reform.

Besides the issue of whether there was bribery involved, there are also potential election law crimes, including not disclosing the source of campaign contributions directed by Bonnen. The Texas Democratic Party filed a lawsuit against Sullivan on Thursday, alleging nine different potential criminal violations of the Texas Election Code, each a Class A misdemeanor. The lawsuit seeks to preserve evidence and damages of $100,000.

Given the potential for criminal wrongdoing, what happens next?

First, consider the dramatic changes that the Texas Legislature made to how public corruption cases are handled in Texas. Under a state law passed in 2015, the Travis County public integrity unit no longer has jurisdiction over elected officials at the Capitol. Potential criminal cases must be investigated first by the Texas Rangers. As of Thursday, the Rangers had not been asked to investigate the Bonnen/Sullivan controversy, nor had they initiated an investigation on their own, according to a Texas Department of Public Safety spokesperson.

If the Rangers do investigate and decide further action is warranted, the case is referred to the home county of the public official. That means any corruption charges against Bonnen would have to be brought by the Brazoria County DA. For Burrows, it would be the Lubbock County DA. Travis County would retain jurisdiction only over Sullivan. In cases of multiple jurisdiction, the Texas attorney general’s office can take charge.

Funnily enough, Attorney General Ken Paxton is under indictment on securities fraud charges in his home territory of Collin County. Paxton is accused of failing to register as a securities agent as part of his private law practice. He claims he is innocent and that the case is politically motivated. Paxton counts among his allies the funders of Empower Texans. (The plot always seems to thicken in this scandal.)

You know what this would mean: Special prosecutors would be needed. Nothing could possibly go wrong with that approach. It’s almost as if abolishing the prosecutorial power of the Public Integrity Unit was a bad idea with all kinds of potentially unwanted consequences. We are getting way ahead of ourselves here, so let’s reel it in a bit and say we can’t wait to see what happens next. Ross Ramsey has more.

Lawsuit filed over mail ballot practices

We haven’t had a good voting rights lawsuit in a few months.

In a federal lawsuit filed Wednesday in San Antonio, [two] voters — George Richardson of Brazos County and Rosalie Weisfeld of McAllen — alleged that the state law that allows “untrained local election officials to arbitrarily and subjectively” reject mail-in ballots based on mismatching signatures violates the Fourteenth Amendment, the Americans with Disabilities Act and the Rehabilitation Act of 1973.

Joined by groups that represent Texans with disabilities, veterans and young voters, they are asking a federal judge to either block election officials from rejecting mail-in ballots over signature doubts or require Texas to notify voters about an alleged mismatch in time for them to “cure” their ballot.

“Even though Texas’ mail in-ballot process should make voting easier for voters from these underrepresented groups, the current flawed process leads to the unlawful disenfranchisement of these Texas voters,” the lawsuit says.

Like other states, Texas offers voting by mail to various kinds of voters — people with disabilities, Texans who are 65 and older, voters who will be outside of the county during an election, such as college students, and those in jail during an election.

Before they are counted, a committee of local election officials reviews mail-in ballots to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.

But because the state election code does not establish any standards for review, the plaintiffs argued that law is applied unequally with each county “necessarily” developing “its own idiosyncratic, arbitrary, and ad hoc procedure to determine that a ballot should be rejected” with no requirement to notify voters about the rejections until 10 days after Election Day.

The lawsuit claims at least 1,873 mail-in ballots were rejected on the basis of mismatched signatures during the 2018 general election; at least 1,567 were rejected in 2016.

See here for the TCRP press release, which contains a link to the lawsuit and a video explaining things. Ideally, this should lead to a settlement. Both parties make use of mail ballots, so it’s not a partisan issue the way voter ID is. And objectively, the standard being applied, such as it is, is ridiculously arbitrary. I can tell you that my signature has changed over the years, from something that was readable as my full name to a basically meaningless scrawl. I noticed it as it was happening, but it happened anyway. I doubt I could replicate one of my older signatures even if I tried. It’s still my hand scrawling it, and it makes no sense that some bureaucrat could decide that it didn’t represent me. I don’t think Ken Paxton’s office knows how to settle lawsuits like this, though, so I expect it to be fought out in the courts. I’ll be keeping an eye on it.

The Harris County bail lawsuit effect on Dallas County

The Trib looks to see if the recent Harris County bail lawsuit settlement might affect the bail lawsuit in Dallas County.

“Anytime one county settles, it could possibly provide a roadmap for another county, but I can’t say that it will,” said Dallas County District Attorney John Creuzot, whose county’s bail practices have also been slammed by a federal judge. “The landscape of this lawsuit is different.”

A big piece of that is because Dallas’ lawsuit, like another in Harris and one in Galveston, targets bail practices not only for misdemeanor defendants, but for felony cases, too.

[…]

“I’ve been studying very closely what’s happening in Harris County, and I think that it’s a step in the right direction and something that we should … modify or use as a blueprint for felony cases,” said State District Court Judge Brandon Birmingham, a Democrat and defendant in Dallas’ lawsuit. He was especially interested in the idea of an open-hours court.

Adding felonies to the lawsuit against bail practices in Dallas brought a new complication, however. The judges work for the state, not the county, and are being represented by the Texas attorney general’s office, which claims they have no jurisdiction over early bail decisions. County officials, who are largely Democratic, have said the attorney general’s office, run by Republican Ken Paxton, has stalled settlement talks and reform efforts.

“The fact that felony judges are part of the lawsuit complicates resolution,” said Dallas County Judge Clay Jenkins, a Democrat. “The AG office’s public positions on criminal justice reform and bail reform are not the same as the Commissioners Court or most of our elected judges.”

The attorney general’s office did not immediately respond to a request for comment.

In a court filing last month, Texas Solicitor General Kyle Hawkins wrote that the Dallas lawsuit goes too far by including felony judges. He said bail decisions are set by county judicial officers before felony judges assume jurisdiction over criminal matters.

“Despite tens of thousands of words spilled in this case so far, [the plaintiff] has yet to articulate just what she expects the felony judges to do, going forward, to remedy her alleged harm,” Hawkins wrote.

But things appear to be moving toward resolution. Two district judges, including Birmingham, recently began conducting their own bail hearings every morning and hired a lawyer to represent them instead of the attorney general. Jenkins and Creuzot confirmed that the parties are now headed to mediation to hopefully come up with a settlement proposal or consent decree.

See here for more on the second Harris County lawsuit, the one involving felony cases. It was filed in January and I haven’t seen any updates as yet, nor do I know if the AG’s office has gotten involved. Be that as it may, it seems to me that the underlying principle is the same, and should be viewed through a similar lens by the federal court. This time, Harris will follow behind Dallas, so we’ll see where they lead us.

David Temple convicted again

New trial, same result.

A Harris County jury on Tuesday convicted David Temple of murder in the 1999 death of his pregnant wife, opening the door for the former Katy-area football coach to be sent back to prison several years after an appeals court reversed his original guilty verdict because of prosecutorial misconduct.

The panel of seven men and five women handed down the decision following almost eight hours of deliberation and 18 days of witness testimony, including evidence prosecutors withheld during the initial trial and which led to the reversal. In the end, jurors convicted David Temple of murder for a second time, rejecting the defense attorneys’ claim that an alternate suspect, a teenage neighbor, fatally shot Belinda Temple.

As state District Judge Kelli Johnson read the verdict, Temple cast his face downward, sweating and suppressing tears while his family members, including his adult son, burst into a chorus of sobs.

Just feet away, siblings and friends of Belinda Temple let out audible sighs of relief, comforted that the man they have long believed killed her could be locked up once more.

[…]

Testimony in the retrial revolved around two competing timelines of events on Jan. 11, 1999, the day Belinda was found shot to death in her master bedroom closet. David Temple told authorities that he came home from a trip to the park and store with his 3-year-old son and found his wife dead amid an apparent burglary.

Prosecutors argued that the husband — who was in the throes of a secret relationship with a coworker — had executed Belinda with a close-contact shotgun wound shortly after she arrived home from a work and a trip to pick up soup for her sick child. He washed his hands, changed his clothes, and left for the store, before returning home and staging a crime scene, state attorneys said. At some point during his shopping trip, prosecutors said, he ditched the murder weapon, which was never located.

Temple’s defense lawyers contended that their client didn’t have time to murder his wife, given a “narrow window” of opportunity when they were both home alone. They argued that the killing occurred while Temple was at the store, and was carried out by a 16-year-old neighbor who had a bone to pick with Belinda, who was also his teacher at Katy High School.

The neighbor testified during the retrial, telling jurors that he skipped the last class period of the day on Jan. 11, 1999. He said that he spent much of the afternoon on a mostly fruitless quest to find marijuana, and several of his high school friends corroborated parts of his story.

See here and here for the background, and here for the rest of my blogging about this. The re-trial was due to Temple’s attorneys successfully arguing that he had not received a fair trial in 1999 because of misconduct by then-Assistant DA Kelly Siegler. Current District Attorney Kim Ogg recused her office from the do-over, with prosecutors from the Attorney General’s office handling the case. In the end, it seems the jury didn’t buy Temple’s defense. Sentencing is still to come, but I imagine he’ll be spending some more time in prison.

David Temple re-trial is now underway

I continue to be fascinated by this.

It’s 1999 in Katy, Texas.

A seemingly perfect couple is falling apart at the seams. David Temple, a high school football coach, is having an affair with a beautiful teacher on campus. His wife, a beloved special education instructor, is becoming anxious. She’s also eight months pregnant.

It was an act of disloyalty, David Temple’s attorneys conceded with opposing state prosecutors. The legal parties disagree, however, on the events of Jan. 11, when Belinda Temple was found shot to death in the closet of her master bedroom.

Lawyers began to reconstruct the murder of Belinda Temple for Harris County jurors on Monday, launching testimony for her husband’s second criminal trial in 12 years. Unlike the first trial, when jurors found David Temple guilty in the killing – a decision that was later overturned by an appeals court – attorneys were tasked with making the panel understand a story from another era.

“We’re going to go back in time,” David Temple’s attorney, Stanley Schneider, began his opening argument on Monday. “We’re going to hear a story of betrayal, two betrayals.”

The lawyer told jurors that while the defendant was unfaithful to his wife, law enforcement also betrayed citizens by operating with “tunnel vision” in the case, which rocked the Katy area in the early 2000s and has maintained a hold in the county ever since.

[…]

“There was only one person on this Earth who had the motive, the means and the opportunity to cause her death,” said Lisa Tanner, a state prosecutor re-trying the case in lieu of the Harris County District Attorney’s Office, which recused itself after the initial verdict was reversed. Investigators didn’t charge anyone with the crime at first but had questions about Temple’s account, Tanner said. The family’s dog was aggressive and made it difficult for police officers to even gain entry into the yard, making them wonder how a burglar could have made it past. The break-in also seemed staged, Tanner said, as evidenced by the location of broken glass on the floor.

Surveillance videos located Temple being where he said he was on two instances, but the videos are separated by a nearly 45-minute gap, Tanner said.

See here for the background and here for all posts. Again, I don’t have anything to add. We just don’t see many re-trials like this, especially in cases where the original prosecutors had been found to have withheld possibly exculpatory evidence. We’ll never know the answer to the questiof what might have happened if they had played by the rules back then, but we’ll see what happens now that this evidence is known to all. I’ll be keeping an eye on this.

David Temple re-trial starts

The beginning of the next chapter in a long story.

For the second time in 12 years, a former Katy-area football coach is standing trial in the murder of his pregnant wife, seeking exoneration after prosecutorial misconduct caused his first conviction to be reversed.

David Temple’s return to court takes place almost 20 years after his wife’s death, which he has insisted was the result of a botched break-in at their home. The murder and trial in 2007 became drew national attention and the case has remained controversial ever since.

Jury selection began Thursday and will continue this week, with testimony due to begin next month. State District Judge Kelli Johnson, special prosecutors from the Texas Attorney General’s Office and defense attorneys are choosing from a pool of 240 potential jurors.

The amount of time that has lapsed usually benefits the defense, said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston. It remains to be seen what evidence withheld from the first trial will be presented.

“We probably shouldn’t expect any surprises,” she said. “The question is how much the prosecutors’ case has degraded over time.”

See here for all the background I have on this. The case is being prosecuted by a lawyer from the Attorney General’s office, as DA Kim Ogg recused her office due to the allegations of misconduct against the office from the past. Suffice it to say that this case is a hot potato, and people have strong feelings about it and about David Temple. I’m just interested in seeing how it plays out this time around.

It’s not an apology that’s needed

This may make for good rhetoric, but it’s not what the goal should be.

Still the only voter ID anyone should need

Congressmen Joaquin Castro and Lloyd Doggett on Friday demanded Gov. Greg Abbott apologize to Texas voters for attempting to purge as many as 95,000 people from Texas voter rolls and said Congress should sue for state records that could show how the plan unfolded if state officials continue to stonewall.

The Texas Democrats said Congress should use every tool at its disposal to investigate the purge they said would have suppressed Latino voter turnout in hopes it will prevent a repeat before the 2020 elections.

“I want them to really put the screws on the governor’s office that it looks like has coordinated an attack on our democracy,” said Castro of San Antonio. “It’s important that we make sure this doesn’t happen again, because if they feel like they got away or they got away with it, then I think they’ll do it again.”

[…]

Castro said he expects the congressional committee to request documents from Texas state lawmakers who may have received some relevant records and signed non-disclosure agreements. After exhausting those and other options, he said he would urge the committee to take Texas to court for records.

“If they have nothing to hide, why wouldn’t they turn those documents over? If we don’t get it, then we should sue,” Castro said.

Doggett, whose district stretches from San Antonio to Austin, said “no tools will be off the table. We’re going to take whatever steps are necessary.”

[…]

Agencies have largely declined to release internal communications that could show how the attempted voter purge was conceived or how the error-ridden list of suspected non-citizens was vetted before its release. In declining to release its own emails, the governor’s office has cited broad exemptions, including attorney client privilege and deliberative process.

Joe Larsen, a first amendment attorney with Houston-based Gregor Cassidy, PLLC, said the governor’s office should have to provide those answers.

“There’s a vital public interest in the disclosure of this information,” he said.

The state also has not released the list of more than 95,000 registered voters that were flagged as potential non-citizens.

That’s a departure from 2012, when the state made public the records used to create an erroneous list of dead people it tried to purge from the voter rolls. Then, the Houston Chronicle found the state had mistakenly matched living voters with deceased strangers from across the country.

See here for some background. I’m mostly interested in the “urge the committee to take Texas to court for records”, because I think the only way to get these records is going to be via court order. There’s just no way Abbott et al will give them up voluntarily. They don’t think they need to, and they don’t see themselves as being answerable to Democratic politicians. Taking this to the courts, and voting these unaccountable princelings out of office at the next opportunity are the answers.

Paxton still holding on to bogus voter purge data

It’s all about secrecy. He doesn’t want you to know what he’s up to.

Best mugshot ever

More than a month after a legal settlement was reached to scrap the review, Paxton’s office has indicated it is keeping open the criminal investigation file it initiated based on the secretary of state’s referral. That’s even after the list was discredited when state officials realized they had mistakenly included 25,000 people who were naturalized citizens and admitted that many more could have been caught up in the review.

Paxton’s office made that indication in a letter this week denying The Texas Tribune’s request for a copy of the list of flagged voters.

The Tribune originally requested the list soon after Whitley announced the review. But the attorney general — whose office also serves as the arbiter of disputes over public records — decided that the list could remain secret under an exemption to Texas public information law that allows a state agency to withhold records if releasing them “would interfere with the detection, investigation, or prosecution of crime.” The office separately confirmed that it had opened a “law enforcement investigation file.”

Following the settlement in late April — and after the secretary of state’s office rescinded the advisory that launched the review — the Tribune re-upped its request with both the secretary of state and the attorney general’s office. But the secretary of state’s office in late May and the attorney general’s office this week asserted they would still withhold the list based on the law enforcement exemption.

“As the law, facts, and circumstances on which that ruling was based have not changed, we will continue to rely on that ruling and withhold the information at issue,” Lauren Downey, an assistant attorney general, told the Tribune in an email.

[…]

“It’s very troubling that the attorney general would base an investigation on a debunked list that we know contains tens of thousands of naturalized citizens,” said Nina Perales, vice president of litigation of the Mexican American Legal Defense Fund, which sued the state on behalf of several naturalized citizens. “If the only basis of the investigation is that voters are naturalized U.S. citizens, then that’s discriminatory and unconstitutional.”

See here for the background. Lord only knows what there might be to investigate, since the list in question was based on useless data, but that sort of trivia doesn’t stop Ken Paxton. Is there some kind of legal action people could take to force Paxton to fish or cut bait? If there is, I hope they pursue it. If not, I guess we just have to wait.

Paxton sues San Antonio over Chick-fil-A records

We really do live in strange times.

Best mugshot ever

It’s a red-meat issue, but it feeds on chicken.

San Antonio’s decision to exclude Chick-fil-A from its airport continues to resound in political circles. Legislators passed a religious freedom bill that gained steam after it was rebranded as the ‘Save Chick-fil-A bill.’ Gov. Greg Abbott beamed over its success on Twitter.

And Attorney General Ken Paxton, declining to wait for his own department to rule on a public records request, on Monday filed suit against the city to force it to hand over records he wants for his office’s investigation.

[…]

According to the suit filed in Travis County district court on Monday, Paxton’s office requested records on April 11 — including calendars, communications and records of meetings among City Council members, city employees and third parties — related to the city’s decision to remove the restaurant from its airport concessions contract. Paxton’s suit seeks to compel the city to release the records.

“The City of San Antonio claims that it can hide documents because it anticipates being sued,” Paxton said in a statement. “But we’ve simply opened an investigation using the Public Information Act. If a mere investigation is enough to excuse the City of San Antonio from its obligation to be transparent with the people of Texas, then the Public Information Act is a dead letter.”

Nirenberg said in a statement Monday that the city had asked Paxton for clarification on the request but never received a response.

“The fact that he went straight to filing a lawsuit instead of simply answering our questions proves this is all staged political theater,” Nirenberg said.

The deputy city attorney, Edward Guzman, responded to Paxton’s request April 24 saying the city was seeking to withhold some records based on 63 exceptions to the state’s public information act, according to the suit. In a May 2 letter, the city also argued the information is exempt because of litigation that was likely to come from Paxton.

State law exempts the release of information related to “pending or reasonably anticipated” litigation.

San Antonio City Attorney Andy Segovia said in a statement Monday that the city provided nearly 250 pages of documents for review by the Attorney General’s Open Records Division and is still waiting for a decision.

Segovia said the city will comply with any Open Records Division ruling. He also shed doubt on the motivation behind Paxton’s investigation.

“The State Attorney General’s office has not specified the legislative authority they are relying on to investigate the airport contract,” Segovia said. “Furthermore, it is clear from the strident comments in his press release that any ‘investigation’ would be a pretense to justify his own conclusions.”

See here, here, and here for some background. Any resemblance of the arguments in this case to those in the dispute between Paxton’s office and the House Oversight Committee are, I’m sure, totally coincidental. Whatever else happens in this ridiculous case, the Chick-fil-A follies have provided the wingnuts with the grievance they needed to get their “religious liberties” bill through the Lege, so in that sense Paxton et al have already won. The Rivard Report has more.

“Laggards”

You can do something about that, you know.

Best mugshot ever

The Maryland congressman leading an investigation into the error-filled effort to purge suspected noncitizens from Texas voter rolls referred to Texas officials as “laggards” who are taking a “minimalist approach” to satisfying demands on Capitol Hill for emails that could show the origin and motivation for the program.

Jamie Raskin, a Democrat who chairs the Oversight Subcommittee on Civil Rights and Civil Liberties, says his panel will continue to aggressively press Texas for documents despite the resignation last week of Secretary of State David Whitley after scrutiny of the botched effort. Whitley’s five-month tenure in the job ended after state Senate Democrats blocked his appointment.

Raskin said that Georgia, another state under investigation, has sent hundreds of thousands of pages of materials to Washington. But Texas, he said, is cooperating “minimally” and treating the congressional demand as “some kind of unlawful imposition.”

“We’re going to continue to press for meaningful disclosure,” he said. “The sudden departure of the Texas secretary of state only makes us that much more determined to get all the information we sought.”

[…]

A spokesman for the Texas secretary of state’s office said 3,600 pages have been turned over to the panel. In a letter to Raskin and Cummings on May 29, Adam Bitter, the office general counsel, wrote that barring a ruling from Paxton “we do not anticipate producing additional documents in response to your request.”

Raskin observed that his panel has subpoena power, albeit not yet invoked. The back-and-forth suggests an impasse that could wind up in the courts – a likely destination of other disputes simmering at present between Congress and the White House.

See here, here, and here for the background. I mean, this is one of those times where I do believe what Paxton’s office has to say. The only way the committee, and by extension the public, is going to get any more information out of them is by forcing them to cough it up. That starts with a subpoena, and ends with a court order. Seems to me there’s no reason not to get that process started now.

Appeals court affirms pension bond lawsuit

Hope this is now over.

Mayor Sylvester Turner

The Texas 1st Court of Appeals has struck down an appeal from a Houston businessman who contested the city’s 2017 pension bond referendum, appearing to end the legal challenge that began almost a year and a half ago.

Mayor Sylvester Turner’s office had denied former housing director James Noteware’s allegation that the mayor misled voters into approving the $1 billion bond sale with a “materially misleading ballot description.”

Noteware claimed that the election authorized the city to pay off the bonds by levying a tax that exceeds its voter-imposed revenue cap.

A state district judge last year dismissed Noteware’s claim without ruling on his motion for summary judgment in the case.

In the ruling, the judge agreed with the city’s argument that the court lacked jurisdiction because Texas Attorney General Ken Paxton had issued an opinion approving and validating the bonds, while Noteware’s claim “depends on contingent or hypothetical facts.”

See here, here, and here for the background, and here for the ruling. Noteware’s claims are summarized in the Chron story, while the city countered that 1) the Attorney General certified the bonds as being in compliance with the revenue cap; 2) the election was held, the bonds were sold, and the taxes to pay for them were levied, so there’s no action for the court to take; and 3) any claim that payment of the bond may violate the revenue cap in the future cannot be litigated now. The court accepted the city’s arguments and the appeals court upheld the ruling. Based on this ruling, it’s theoretically possible there could be future litigation over that last point, but if so it will most likely be someone else’s problem.

The Lege versus scam callers

I appreciate the effort, but it’s highly unlikely to make any difference.

Rep. Ben Leman

The Texas House gave an initial stamp of approval Wednesday to a bill that aims to prohibit telemarketers or businesses from falsifying their phone numbers.

The measure, House Bill 1992, would prohibit caller ID spoofing — when a caller tampers with information transmitted to people’s caller IDs to disguise their identity.

Under the proposal by Republican state Rep. Ben Leman of Anderson, telemarketers using a third-party source to make calls to the public must ensure the number that appears on people’s caller ID matches the number of the third party, or the number of the entity that has contracted with the third party.

“House Bill 1992 aims to prevent telemarketers from using predatory and annoying tactics by prohibiting them from replicating numbers and misrepresenting the origin of the call,” Leman told other representatives Wednesday.

The measure needs one more vote from the House before it can head to the Senate.

Federal law already mandates that telemarketers must transmit a telephone number and, when possible, a name that matches the telemarketer or business on caller ID. A spokesman from Leman’s office said the bill clarifies that the Texas attorney general may prosecute telemarketing companies that display misleading information on caller ID.

This story is from last week – sorry, sometimes I like a story but wind up prioritizing other stories – and HB1992 has since passed both chambers and is enrolled. I’m fine with passing this law, but there’s a zero percent chance it will make any difference. There just won’t be anyone for the AG to sue. Basically, we are with robocalls and spoofed caller ID now where we were with email spam ten or fifteen years ago. At some point, defensive technology will catch up and allow for better identification and redirection of junk calls. Until then, screen all the calls from numbers you don’t recognize.

SB9 clears House committee

Let the stalling tactics begin!

Still the only voter ID anyone should need

The House Elections Committee voted Friday to advance a controversial election bill, setting up a race to get it onto the full chamber’s agenda ahead of bill-killing deadlines that start this weekend.

The committee approved Senate Bill 9 by Republican state Sen. Bryan Hughes on a 5-4 party-line vote during a short meeting on the House floor called two days after the panel heard hours of public testimony — a vast majority in opposition of the bill — during a marathon hearing that ran past midnight.

SB 9 is a wide-ranging bill that makes more than two dozen changes to election practices. Among the provisions are one to make it a felony for Texans who vote when they’re ineligible — even if they do so unknowingly — and another to allow partisan poll watchers or election officials to be present at a voting station if a voter is getting help from someone who isn’t a relative. Those individuals would then be allowed to examine the voter’s ballot before it’s submitted to determine whether it was filled out “in accordance with the voter’s wishes.”

The legislation also grants the state attorney general direct access to the voter rolls and essentially allows Texas to participate in a controversial, Kansas-based voter verification program that has proved to be unreliable and riddled with cybersecurity weaknesses.

[…]

The bill now heads to the House Calendars Committee, which sets the full chamber’s agenda. If it makes it onto the House calendar, the chamber will need to approve it before a midnight deadline Tuesday. Already running against the clock, the House Elections Committee delayed a vote on the bill twice, canceling a Thursday vote when too few Republicans would be in the room to get it out of committee.

See here for the background. AT this point, there are two main questions. First, can the Democrats do enough to delay this bill from getting to the House floor? (Assuming it gets on the calendar, which I figure it will.) And second, if the Dems manage to delay it to death, does Greg Abbott call a special session to revive it? My best guesses are Yes for the first, and Too Soon To Tell for the second. Let’s take it one step at a time and see where we go. In the meantime, keep calling your legislators to let them know that SB9 is a bad bill. The Observer has more.

Paxton again refuses to comply with House Oversight Committee

It’s like he has no interest in oversight, or something.

Best mugshot ever

Texas Attorney General Ken Paxton’s office this week again denied a request for a records by a U.S. House panel seeking to investigate the state’s botched voter purge program.

[…]

While the Attorney General’s office has refused to release documents, Secretary of State David Whitley’s office said Tuesday it has released more than 1,000 pages of documents in response to the request and plans to produce more by the end of the week now that the federal lawsuit has been settled.

Whitley’s office continues to withhold other documents it says are exempt from disclosure because of attorney-client privilege.

First Assistant Attorney General Jeff Mateer in a letter Monday reiterated his claim that the House committee lacks the authority to force the secretary of state to produce documents.

Rep. Jamie Raskin, D-Md., chairman of the Oversight Subcommittee on Civil Rights and Civil Liberties, has rejected that claim but last month stopped short of threatening a subpoena if the Texas officials don’t hand over the documents requested — including emails with Gov. Greg Abbott and Trump administration officials about the attempted voter purge.

In the letter Monday, Mateer said the ability of Congress to pass laws to protect voter rights does not “override the inherent and reserved power” of the state to maintain its own voter rolls.

“Granting Congress the power to exercise ‘oversight’ over the constitutional officers of a state engaged in the lawful exercise of that state’s core authority would undermine the fabric of our system of dual sovereignty,” Mateer wrote. “In this case, that risk would be made particularly acute by the committee’s attempt to force the constitutionally-designated attorney for the State of Texas to divulge privileged and confidential communications with a client concerning the client’s enforcement of Texas law.”

Mateer added that the committee lacked a “valid legislative purpose” for the investigation, which the committee has disputed.

See here and here for the background. Note the similarity in the responses by Jeff Mateer and Donald Trump’s attorneys. It’s not an accident or a coincidence. I say it’s time to break out the subpoenas, and to go to court as needed to enforce them. If this is how they want to play this, then let’s quit fooling around and cut to the chase.