Off the Kuff Rotating Header Image

Ken Paxton

Caught between a mandate and a madman

I have sympathy for the schools.

Many Texas universities — which collectively hold billions of dollars in federal contracts — are wrestling with how to navigate the Biden administration’s mandate that all federal contractors be vaccinated by Dec. 8 in a state that bans vaccine mandates.

While more public universities across the country are announcing that all employees must be vaccinated to comply with the federal requirement, several Texas public universities — all managed by Gov. Greg Abbott appointees — told The Texas Tribune they are still evaluating the executive order, which applies to new federal contracts of $250,000 or greater and awarded as of Nov. 14 or existing contracts that have been renewed as of Oct. 15.

“This is unprecedented,” said Michael LeRoy, a labor law expert at the University of Illinois College of Law. “There have been conflicts between the state and federal government, but not at this magnitude with this kind of money on the line.”

LeRoy believes the issue will be resolved in the courts because of the two conflicting issues at the center. State universities receive funding from the state and federal level but they are run by a board of regents appointed by the Texas governor.

While LeRoy said it’s unlikely the federal government will immediately terminate a grant if universities don’t comply, he said a university’s actions could impact future bids for federal grants. The federal government could begin to give notice to rescind a grant, he speculated, but that is a lengthy process. For now, universities are awaiting guidance from their own lawyers.

“… [T]he White House has been clear that noncompliance will not be excused, even in situations where state law contradicts the federal directive,” University of Houston spokesperson Shawn Lindsey told the Tribune in a statement. “It’s an extremely complicated situation that requires further analysis.”

Texas Tech University is working with its lawyers to determine if there are contracts that would trigger the vaccination requirement, school officials said in a statement. Texas Tech is also requesting guidance from the Texas attorney general’s office.

A Texas A&M University System spokesperson said they are also still evaluating the order. The A&M system has about 500 contracts with the federal government worth $2 billion, most of which are tied to the flagship university in College Station.

A statement from the University of Texas System revealed how universities are trying to appease both federal and state leaders.

“We will endeavor to comply with federal vaccine requirements for specific, covered individuals to protect these investments in our state,” spokesperson Karen Adler said in a statement. She then went on to say the system would provide exemptions for those with religious beliefs and “we will make every effort to accommodate employees’ personal situations.”

I think we can all guess what the AG’s office will say to Texas Tech, but the ritual must be observed. We’re all awaiting final guidance from OSHA, which is writing the rule that will implement that executive order. After that is when the lawsuits will fly. Not much else to say at this point, other than I do not envy any of these university officials the task they have before them.

SCOTUS will hear SB8 appeals

Both of them, on November 1. The law remains annoyingly in effect until then.

The U.S. Supreme Court has agreed to fast-track two Texas cases involving the state’s near-total ban on abortion, but refused to halt the law from being enforced.

The high court has scheduled oral arguments for Nov. 1.

The court will take up the cases brought forward by abortion providers and the U.S. Department of Justice against the ban, according to a court opinion from Justice Sonia Sotomayor on Friday. It will review the procedural merits of both cases, rather than the constitutionality of abortion, while enforcement of Senate Bill 8 remains in effect.

In her opinion, Sotomayor offered a partial dissent of the Supreme Court’s decision to keep the law in place while the court deliberates over the two cases.

“By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended,” Sotomayor wrote.

The court’s decision to expedite its involvement was a rare move, brought upon by a law that has garnered national attention because of its extensive limits on abortions and its particular mechanisms of enforcement: not by state officials but by private citizens who are empowered to sue those who may help someone receive an abortion after fetal cardiac activity is detected.

“The last time [the Supreme Court] moved this quickly was Bush v. Gore,” said Josh Blackman, a law professor at South Texas College of Law Houston whose expertise includes constitutional law.

[…]

Normally, the Supreme Court considers getting involved in a case only after an appeals court has had a chance to make a decision on it. But abortion providers filed a request called a “certiorari before judgment,” a rarely used procedure in which the high court immediately reviews a district court’s ruling without waiting on an appellate court to take action.

One of the abortion providers included in the challenge is Whole Woman’s Health, a provider with four clinics in Texas. Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said Friday’s decision will mean Texans will continue to be denied safe and accessible abortion care.

“The legal limbo is excruciating for both patients and our clinic staff,” Miller said in a statement. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come.”

See here. here, here, and here for some background. The 19th adds some details.

The court will not specifically examine the constitutionality of a six-week ban. Rather, the justices will be looking at the legality of Texas’ private enforcement setup, as well as whether the Justice Department has the right to challenge the law. But regardless of the specific questions at play, a decision in favor of Texas could still signal to other anti-abortion lawmakers that a ban like Texas’ is a viable path to pursue.

The law has virtually eliminated access to the procedure in Texas. Many clinics have stopped providing abortions altogether. Those who can afford the journey and are past six weeks of pregnancy are seeking abortions in surrounding states, including Oklahoma, New Mexico, Arkansas and Kansas. But many others — particularly those without the time off, financial resources or child care to travel out of state — may end up carrying unwanted pregnancies to term.

Abortions are now virtually unavailable for minors in Texas, who are required to either get parental consent or go through a special judicial approval process that makes it very difficult to meet the six-week deadline. Undocumented teens who are seeking abortions have been sent to immigration facilities in other states, because most of them already past six weeks when they discover they are pregnant.

And Slate tries to read some tea leaves.

The plaintiffs got half a loaf on Friday, or maybe less. SCOTUS will hear both cases, holding oral arguments in just 10 days. (With these orders, the court acted at breakneck speed, which is nearly unprecedented in modern times; the closest analogue is Bush v. Gore.) But SCOTUS restricted the scope of its review in a curious and confusing way. The court will not consider the Justice Department’s request to rule on the merits of S.B. 8. Instead, it will ask only whether the United States may sue the state of Texas, as well as all “state officials” and “private parties,” to “prohibit S.B. 8 from being enforced.” The abortion providers’ application likewise focuses on procedural issues, asking the court to decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to the public.

Neither of these questions squarely presents the constitutionality of a six-week abortion ban to the Supreme Court. The justices could interpret the abortion providers’ request as an invitation to consider the merits by declaring that the court must decide whether abortion is “a constitutional right” before determining “whether a state can insulate” S.B. 8 from review. (If there’s no right to abortion, there’s no clear constitutional flaw in S.B. 8.) But that seems unlikely; after all, the justices took pains to avoid confronting this question in the Justice Department’s case, where it is directly presented. They also ignored Texas’ request to recast these cases as a direct challenge to Roe. It appears, rather, that the court is committed to deciding only whether private plaintiffs or the federal government can sue a state when it makes an end run around the Constitution, as Texas did with S.B. 8.

Several aspects of the court’s orders suggest that at least one justice has not made up their mind about this question. If a majority believed Texas’ scheme is permissible and federal courts cannot stop it, why would it rush to hear these cases? It could have let them languish on the shadow docket, or decline to intervene at this early stage, just as it did last time around. Conversely, if a majority believed Texas’ scheme is impermissible and federal courts can stop it, why would it let S.B. 8 remain in effect? Why not halt the law while the court prepares a formal ruling?

Friday’s orders thus read like a compromise. But for whom? Chief Justice John Roberts and the three liberals have already said they want to pause the law. No one seriously argues that the overtly anti-Roe justices—Clarence Thomas, Sam Alito, or Neil Gorsuch—would lift a finger to stop S.B. 8. That leaves Justices Brett Kavanaugh and Amy Coney Barrett, who probably want to overturn Roe but may want to move slower than their hard-right colleagues. It appears either Kavanaugh, Barrett, or both aren’t yet sure which way they’ll vote in the Texas litigation. Now they’ve preserved every option.

I don’t have anything to add to that. Hold your breath and hope for the best.

Third Court rejects Paxton attempt to kill whistleblower lawsuit

Good.

Best mugshot ever

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

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

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

[…]

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

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

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

Texas takes its shot at Roe v Wade

We were always headed in this direction. It was just a matter of when we were going to get there.

Texas on Thursday asked the U.S. Supreme Court to keep in place a law that imposes a near-total ban on abortion and urged the justices that if they quickly take up a legal challenge brought by President Joe Biden’s administration they should overturn the landmark ruling that legalized the procedure nationwide.

Texas Attorney General Ken Paxton in a legal filing responded to the U.S. Justice Department’s request that the Supreme Court quickly block the Republican-backed state law while litigation over its legality goes forward.

The Justice Department on Monday suggested that the justices could bypass the lower courts already considering the matter and hear arguments in the case themselves. Paxton’s filing said that if the justices do that, they should overturn Supreme Court precedents including Roe v. Wade, the 1973 decision that recognized a woman’s right under the U.S. Constitution to terminate a pregnancy.

“Properly understood, the Constitution does not protect a right to elective abortion,” Paxton’s filing said, adding that the state law furthers “Texas’s interest in protecting unborn life, which exists from the outset of pregnancy.”

[…]

Paxton on Thursday also asked the Supreme Court to reject a bid by the abortion providers to have the justices immediately hear their case.

See here, here, and here for some background. The forced-birth fanatics on SCOTUS already have an opportunity to overturn or functionally eviscerate Roe in December with that Mississippi case, so this may at least tell us how screwed we all are. Just remember all this in 2022 when we get to vote out some of the zealots that got us here, starting with our felonious Attorney General. The Trib and CNBC have more.

Chick-Fil-A and the “heartbeat” lawsuits

I’d forgotten all about this.

A case that’s before the Texas Supreme Court this fall could have strong implications for the future of the state’s newly adopted abortion ban, the most prohibitive in the nation.

The suit relates to a 2019 law that, like the abortion law, was authored by state Sen. Bryan Hughes, R-Mineola.

Known as the “Save Chick-fil-A” law, it allows anyone to sue when they believe a governmental entity has taken “adverse actions” against a person or company based on its support for a religious organization, as Republican lawmakers believed the city of San Antonio did when excluding the fast-food restaurant from its airport.

Civilian enforcement is also the key to the new state law that effectively bans abortion, Senate Bill 8 — a provision that has so far allowed it to survive a legal challenge based on Roe v. Wade, the 1973 Supreme Court case establishing women’s right to abortions. At issue in both cases: Can a state law grant private citizens standing to sue?

“The standing issue in the case is essentially the same,” said Jason Steed, a Dallas-based appellate lawyer and court watcher who is not involved in the case. “That’s what’s interesting about it is that the court could decide that standing issue and whatever they decide about that issue would have direct implications for SB 8.”

[…]

The city council’s decision to ban the restaurant had animated conservatives who saw it as discrimination against the company because its owner had given money to Christian groups that oppose same-sex marriage.

Gov. Greg Abbott, surrounded by Republican lawmakers, each with a Chick-fil-A styrofoam cup in hand, signed Hughes’ bill in July 2019, and celebrated it as a victory for religious freedom.

The suit before the Texas Supreme Court was brought on Sept. 5, 2019, by five Chick-fil-A supporters who said they were harmed because they would have been customers of the restaurant had it opened in the city-owned airport.

Still, they note in the suit that the law does not require them to prove damages and purports to give standing to anyone who alleges a violation. They are seeking a court order to stop the city from excluding the fast-foot chain from this project and potential ones with the city in the future.

It’s unclear whether the company wants into the airport. In September 2020, San Antonio was forced to offer Chick-Fil-A its spot back as part of an agreement with the Federal Aviation Administration’s Office of Civil Rights under the Trump administration. The settlement helped the airport avoid penalties that could have jeopardized millions of dollars in funding from the agency.

But Chick-Fil-A declined, and the city has since given the spot to Whataburger, which is slated to open by next spring.

In August of 2020, the Fourth Court of Appeals in San Antonio sided with the city and reversed a lower court’s decision, ruling that the city had sovereign immunity, a legal principle that protects governments and their agencies from lawsuits.

See here, here, and here for some background. Ken Paxton filed a lawsuit in July of 2019, before the five busybodies filed theirs. The easy way out for SCOTx is to uphold the Fourth Court’s ruling, which would allow them to not address the question of standing, which as noted is at the center of SB8. The city of San Antonio argued that the plaintiffs did not have standing, and as of today there’s no adjudication on that matter. Sooner or later, one way or another, we’ll get some kind of answer to that.

SCOTx puts San Antonio ISD’s vaccine mandate on pause

Ken Paxton finally gets what he wants.

The Texas Supreme Court temporarily halted San Antonio Independent School District’s staff vaccine mandate on Thursday, a day before the deadline for all employees to get vaccinated against COVID-19.

The ruling comes two weeks after a Bexar County judge denied the state’s request for a temporary injunction to stop the staff vaccine mandate. Texas Attorney General Ken Paxton’s office appealed that decision to the 4th Court of Appeals and also requested the court temporarily block the mandate while it considers Paxton’s appeal.

The 4th Court of Appeals denied the attorney general’s request to temporarily block the vaccine mandate. Paxton then requested the Texas Supreme Court step in and halt the mandate, which it did Thursday while stating the court’s decision is not a reflection “on the merits of the state’s claims.” The appeals court still has to rule on the state’s appeal of the temporary injunction that was denied by the Bexar County judge on Oct. 1.

[…]

While the Supreme Court’s ruling means SAISD must pause its vaccine mandate, the district said in a statement that it will continue to work with health care providers to offer vaccines to any employees, students, and families who want them.

“This is especially important as we anticipate the availability of the Pfizer vaccine for 5-11-year-old children in the next month. We remain committed to believing it’s the right thing to do,” the district said in the statement. “We are extremely proud of our efforts in providing abundant access to this life-saving protocol to all of our employees and the broader SAISD community. Based on the science, we continue to feel strongly that these vaccines help us keep our staff and students as healthy as possible and in the classroom, where learning happens best, and in giving our families stability.”

See here, here, and here for the background. Next up would be a hearing in district court on the merits of the state’s request for an injunction, followed by another round of appeals. The hope remains that in this time, whether the mandate is allowed to be enforced or not, some number of SAISD employees get vaccinated who wouldn’t have done so otherwise. If that happens, it was all worth it. The Trib has more.

The fate of the Paxton trial location is once again with the CCA

Best mugshot ever

As you recall, the very long-awaited securities fraud trail of Ken Paxton is ticketed to go back to Collin County after the First Court of Appeals denied a request for an en banc hearing to reconsider the court’s previous ruling that had upheld the Harris County district court judge’s ruling from last year (and was itself a confirmation of a previous ruling). Special prosecutor Brian Wice has argued that the reason for that ruling is in error, and as such has filed a petition for a writ of mandamus with the Court of Criminal Appeals to overturn the First Court and keep the trial in Harris County.

The main thrust of the petition is that the First Court erred in its ruling, and for a detailed explanation of why it erred can be found here. The TL;dr of that is basically that Team Paxton has been playing fast and loose with its arguments about the original judge’s appointment to the case – if you read that petition, you will see multiple uses of the word “sandbag” or “sandbagging” – and it makes heavy use of the dissenting judge’s opinion from that First Court case. The Court of Criminal Appeals is notoriously pro-prosecutor, except when it isn’t, so who knows what they’ll do and who knows how long it will take. But we are at a point in this ridiculously long and drawn-out saga where the next step will be for the question of where the trial should be is resolved, and we will presumably move on to fighting about the actual trial. (There are still questions about the pay for the special prosecutors, which is a whole ‘nother can of worms.)

Anyway. Since people like to make snarky comments on Facebook and Twitter about how long Ken Paxton has been under indictment without having gone to trial, the least I can do is update you on the legal bits and pieces as we wend our way every so slowly towards that day. You’re welcome.

One more lawsuit against Texas’ voter suppression law

From Mi Familia Vota:

Non-profit civic engagement organization Mi Familia Vota, along with individual voters, filed suit today in the United States District Court for the Western District of Texas in San Antonio seeking to block a new voter suppression law enacted by the Texas Legislature.

The lawsuit challenges Texas Senate Bill No. 1 (SB 1), a law designed to suppress votes from Texans of color and other marginalized communities through measures that include prohibiting drive-through voting, limiting voting hours, making it unlawful for counties to automatically mail eligible voters mail-in ballot applications; implementing stricter rules for voting by mail; allowing election officials to reject allegedly defective ballots without notice to the voter prior to the election; implementing monthly purges of voter rolls; limiting physical and language assistance at the polls; and enabling partisan poll watchers, which creates increased risk of voter intimidation.

The law was passed on the heels of the 2020 election, which saw enormous gains in the number of Black and Latino voters in Texas, in part driven by counties like Harris County, which took actions to make voting safe and accessible, including by offering drive-through and 24-hour voting options. “Texas’s new voter suppression law, 2021 Texas Senate Bill No. 1, 87th Legislature (“SB 1”), is a calculated effort to disenfranchise voters,” the complaint reads. “If allowed to stand, the bill will unconstitutionally burden qualified voters and inevitably prevent many voters from lawfully casting their ballots in future elections.”

The plaintiffs argue that these changes to voting law in Texas create an undue burden on voters, especially those who are Black or Latino, in violation of the First, Fourteenth, and Fifteenth Amendments to the Constitution and the Voting Rights Act of 1965. They cite a pattern of voter suppression legislation in Texas throughout the 19th, 20th, and 21st centuries, and they demonstrate as false Texas officials’ claim that the law is targeting “voter fraud.”

“Latinos and other voters of color came out to vote in big numbers in 2020,” said Angelica Razo, Texas State Director for Mi Familia Vota. “We saw places like Harris County come up with ways of making voting widely available and safe during the COVID-19 pandemic. Our state should empower voters to find safe and accessible voting options. Instead, our legislators chose to suppress voters, make it harder for us to vote, and subject us to voter intimidation. Voting is a constitutional, protected right, and we are proud to continue to advocate for the voting rights of our community, so that all eligible voters are able to exercise their right to vote.”

[…]

The defendants in this case are Texas Governor Greg Abbott, Texas Deputy Secretary of State Jose Esparza, and Texas Attorney General Ken Paxton.

The plaintiffs are represented by Free Speech For People, a nonpartisan legal advocacy nonprofit dedicated to defending our democracy; the law firm of Stoel Rives; and the law firm of Lyons & Lyons. Free Speech For People filed a federal lawsuit last month in Phoenix, on behalf of Mi Familia Vota, Arizona Coalition for Change, Living United for Change in Arizona, and Chispa Arizona, to block two new Arizona laws restricting voting rights.

”SB 1 creates unconstitutional burdens on the right of Texans to vote, in an effort to block voters–and specifically voters of color–from voting and having their votes counted,” said Courtney Hostetler, Senior Counsel for Free Speech For People. “It shuts down reasonable practices that counties have implemented to increase voters’ access to the polls. It makes voters and election officials vulnerable to intimidation. And it will force certain voters to jump through costly and time-consuming hoops to remain on the voter rolls. The law violates the First, Fourteenth, and Fifteenth Amendments to the US Constitution and the Voting Rights Act of 1965.”

A copy of the lawsuit is here. It’s lawsuit number 6 by my count – there were two federal lawsuits filed before SB1 was signed, then two more federal lawsuits plus a state lawsuit filed right after it was signed. I still haven’t really read any of them, but these are all people who have been down this road many times before. Their arguments may not work in the courts that we have now, but they will have merit regardless. I expect the federal suits to get combined, maybe not all of them into one but some of them. And it will surely take months before we get our first hearings and maybe rulings. Stay tuned, and do keep reminding our Democrats in Washington that it’s still not too late to pass a federal voting rights bill.

More on the San Antonio ISD vaccination mandate litigation

I’m a little confused at this point, but I’ll cope.

Judge Mary Lou Alvarez of the 45th District Court denied the state of Texas’ request for a temporary injunction Friday, allowing the San Antonio Independent School District to continue requiring its employees to be vaccinated against the coronavirus.

Former SAISD Superintendent Pedro Martinez, who has since left the district to take a job in Chicago, issued the vaccine mandate on Aug. 16, requiring all staff members to be vaccinated by Oct. 15. SAISD board President Christina Martinez said Thursday that about 90% of SAISD staff has been vaccinated.

Alvarez’s decision came after a hearing on the state’s request for temporary relief against the vaccine mandate was delayed. Another state district judge denied the school district’s challenge on Sept. 23 that the state and Gov. Greg Abbott did not have jurisdiction to sue. SAISD then appealed that ruling, pushing back the original hearing for the state’s lawsuit; the appeal was dropped earlier this week.

After Alvarez’s ruling, the state’s legal team said they planned to appeal. A trial for the lawsuit is set for Jan. 19, 2022.

[…]

Attorney Steve Chiscano, who represented SAISD, dismissed the state’s lawsuit as a political ploy.

“We are sitting in an injunction hearing that the AG is hoping to win so he can spin off another press release on how proud he is that he beat up on this district,” Chiscano said. “It is so obvious and so clear that this is happening that I believe at the end of the day, you’ll see that what the governor is doing is not supported by any law.”

See here and here for the background. I’ve decided that we had a motion by SAISD to dismiss the lawsuit, which was denied, and then the state asked for a temporary restraining order against SAISD, which was also denied. The source of my initial confusion was the change in judges between the two, but I think that may just be how Bexar County rolls. In any event, true to form and as the story notes, Paxton – who was not present for the hearing – did indeed tweet about it and how he’s fighting for the freedom of people who want to get sick and die and take others with them. Ultimately, this judge did not buy the state’s argument that the Abbott executive order was enough on its own to prevent SAISD from responding to the pandemic in this fashion. A higher court may intervene before the hearing for an injunction, but in the meantime I sure hope that SAISD is making progress in getting shots into arms. That is what really matters. The Current has more.

Abbott and Patrick whine about State Bar complaint against Paxton

Poor, poor babies.

Best mugshot ever

The state’s top officials came to the defense of embattled Attorney General Ken Paxton, saying a state bar investigation into his professional conduct is “politically motivated” and raises questions about the state’s separation of powers.

On Friday, Paxton said he had filed an objection to a state bar investigation prompted by his decision to file a lawsuit challenging the results of the 2020 presidential elections in four battleground states. The U.S. Supreme Court dismissed the lawsuit saying Texas did not have standing to file it.

Paxton called the state bar investigation “partisan” and said it was “weaponizing” its regulatory power against the attorney general’s office.

[…]

Gov. Greg Abbott and Lt. Gov. Dan Patrick, also blasted the investigation into the fellow Republican. Abbott, a former attorney general, said said the issue presented a “threatened intrusion upon executive branch authority.”

“These allegations raise separation-of-powers questions under our Constitution,” Abbott said in a statement. “I am confident that the Supreme Court of Texas, to which the State Bar of Texas is ultimately accountable, will ensure that the judicial branch upholds the law.”

Patrick said the investigation “appears politically motivated.”

“It is clear the Investigatory Panel, stacked with Biden and Democrat donors and activists, has weaponized its state-granted power, intended to protect a fair and just practice of law, to instead launch an attack over political differences,” he said in a statement. “These actions undermine the integrity of the Investigatory Panel and the State Bar of Texas as a whole.”

See here, here, and here for the background. Note that there are two complaints against Paxton, so it’s not clear to me which one is being whined about or responded to. I’m picturing Paxton standing behind Abbott and Patrick, like a little brother who’s gotten in over his head with the neighborhood kids. He’s picked a fight he doesn’t think he can win, so he tries to scare off his antagonists. It’s like an episode of The Little Rascals, if Spanky or Alfalfa had been caught trying to overthrow the government. We live in such dumb times.

SAISD vaccine mandate update

Still in place for now, but clearly on shaky ground.

Best mugshot ever

San Antonio Independent School District can continue requiring its staff to get vaccinated against COVID-19, despite a judge ruling against the district Thursday in a case filed by the Texas attorney general.

Judge Angelica Jimenez of the 408th District Court denied SAISD’s plea on Thursday that state Attorney General Ken Paxton lacks the legal authority to enforce Gov. Greg Abbott’s Aug. 25 executive order, which banned public entities, such as school districts, from mandating COVID-19 vaccines. Steve Chiscano, the attorney representing SAISD, immediately appealed the ruling.

Appealing Jimenez’s jurisdiction ruling delayed a hearing requested by the state to stop SAISD’s vaccine mandate with a temporary restraining order. The school district and attorney general’s office will make their arguments again before the 4th Court of Appeals. Case information is due at the court Oct. 4, according to online court records. The lawyers will file briefs, and justices will make a decision at an undetermined date.

[…]

In a statement, the district said Jimenez’s ruling does not enforce Abbott’s executive order prohibiting vaccine mandates and that SAISD would continue its vaccine protocols.

“We do not believe the Governor and Attorney General have the legal authority to continue this lawsuit, and we respectfully disagree with the judge’s ruling,” the district said in the statement. “We know that following the executive order and not requiring vaccination of our employees is potentially deadly, and we will do what is necessary to protect the children and staff of the district.”

See here for the previous update. I’ve always thought that the vaccine mandate was a heavier lift than the mask mandates, so I won’t be surprised if Paxton eventually wins this one. But as long as that mandate remains in place, SAISD can move closer to a goal of maximizing the number of its employees who have been vaccinated. No matter the odds, that’s worth fighting for.

Trying again to get SCOTUS to stop SB8

Good luck.

A coalition of Texas abortion providers went back to the Supreme Court Thursday, asking the justices to expedite a review of the state law that bars abortions after six weeks of pregnancy.

The law has been in effect for 23 days, but the federal appeals court hearing the challenge has only set a tentative hearing schedule for December. The providers are asking the justices to — in effect — step in and decide a key issue in the case now, instead of waiting for a federal appeals court to rule on the issue.

The new court papers mark the latest furious attempt on behalf of providers to stop a law that bars most abortions before a woman even knows she is pregnant. The law, which challengers say was drafted with the specific intent to evade judicial review, is now being challenged by providers in federal and state courts, as well as by the Department of Justice.

In the new brief, the providers say the law is written in a way that makes it almost impossible to challenge because it bars Texas officials from enforcing it and instead allows private individuals to bring suit against anyone who may assist in helping a person obtain an abortion performed after six weeks. The clinics are asking the Supreme Court to decide “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

Separately, they have filed papers asking the court to put their request on a fast track. Under normal circumstances supporters of the law would have had about 30 days to respond, and the process could drag into the winter months. Instead, the clinics want the justices to consider the case October 29 and hear oral arguments in December.

That timing would coincide with the Supreme Court hearing another, completely separate challenge to a Mississippi law that bars most abortions after 15 weeks. Mississippi is asking the court to overturn Roe v. Wade and the court has set arguments for December 1.

If the court were to grant the request from the Texas providers, it could hear the two challenges in the same month.

[…]

In making the unusual request, the clinics noted that providers in neighboring states have reported increases of patients traveling across state lines and other states have begun to push copycat laws.

The clinics had previously asked the justices to block the law before it went into effect, but the high court declined to do so on September 1.

Back then, in an unsigned 5-4 order, the majority wrote that while the clinics had raised “serious questions regarding the constitutionality of the Texas law,” they had not met a burden that would allow the court to block it due to “complex” and “novel” procedural questions. Chief Justice John Roberts joined the three liberal justices in dissent.

Just as a reminder, as this is another one of those situations where there’s so many lawsuits it’s hard to keep track, these are the plaintiffs who had originally sued in July and had to appeal to SCOTUS in late August after some serious shenanigans from the Fifth Circuit. This time they’re asking the court to rule on constitutional grounds, not just allow for a temporary restraining order. I have no idea what their odds of success are, but it can hardly hurt. Maybe now that SCOTUS has seen the sharp downturn in the public’s opinion of them following their cretinous and cowardly refusal to block SB8 in the first place they’ll have a bit of a rethink. We’ll see. Reuters and The 19th have more.

Appeals court appears skeptical about Paxton’s whistleblower defense

As well they should be.

Best mugshot ever

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

Texas takes its potty obsession to court

Oh, brother.

Texas Attorney General Ken Paxton is suing the Biden administration over recent federal guidance issued to protect LGBTQ people in the workplace, including a directive that says employees should be allowed to use the bathrooms, locker rooms and showers that correspond with their gender identity.

The guidance also clarifies that misuse of a person’s preferred pronouns could be considered harassment in certain circumstances.

The lawsuit, filed Monday in the Northern District of Texas federal court, Paxton claims that the U.S. Equal Employment Opportunity Commission violated Title VII of the Civil Rights Act of 1964 when it issued a technical assistance document outlining the impact of a landmark U.S. Supreme Court ruling last year. That ruling prohibited employer discrimination on the basis of sexual orientation and gender identity. Title VII prohibits discrimination against employees on the basis of sex.

Defendants in the lawsuit include the EEOC, commission Chair Charlotte A. Burrows and U.S. Attorney General Merrick Garland.

The EEOC guidance, released on June 15, specifies that employers must not prohibit transgender employees from dressing in correspondence with their gender identity or using bathrooms, locker rooms or showers that are consistent with their gender identity.

In a statement, Paxton called the guidance “illegal” and an “unacceptable” attempt “to force businesses, including the State of Texas, to align with their beliefs.”

“If the Biden Administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change,” Paxton said.

In the lawsuit, Paxton also argued that the EEOC violated the First and Eleventh Amendments, as well as the Administrative Procedure Act, which specifies how government agencies issue regulations.

The EEOC said in an email on Monday that it does not comment on pending litigation, but that it will be represented by the Department of Justice, which declined to comment Monday.

For a variety of reasons, not the least of which being my searing contempt for the walking dirtbag that is Ken Paxton, it’s hard to take his nakedly political lawsuits seriously. We’ve certainly seen plenty of examples of shoddy lawyering on his part, not to mention him lying about court actions in a way that makes him look good to his knuckle-dragging base, and that always makes me think he’s in this more for the publicity (which he can get immediately) than the (often years-off) results. That said, if there’s one thing Ken Paxton is unquestionably good at, it’s picking federal judges who are likely to give him what he wants. As such, we have no choice but to take this seriously. Daily Kos has more.

Get ready for redistricting

The next special session starts Monday, and we should expect to see proposed redistricting maps. It’s going to be a rough few weeks, in part because the guardrails are gone, which will allow Republicans to run amuck.

The 2020 census captured a Texas that does not exist in its halls of power: a diverse state that is growing almost exclusively because of people of color and where the Hispanic and white populations are nearly equal in size.

But when the Texas Legislature convenes Monday to do the work of incorporating a decade’s worth of population growth into new political maps, the Republicans in charge — nearly all of whom are white — will have a freer hand to cement their power and try to shield themselves from the change that growth represents.

The 2021 redistricting cycle will mark the first time in nearly half a century that a Legislature with a lengthy record of discriminating against voters of color will be able to redraw political districts without federal oversight designed to keep harmful maps from immediately going into effect.

And now, once those maps are enacted, the voters of color and civil rights groups that for decades have fought discrimination in the courts may face a federal judiciary less willing to doubt lawmakers’ partisan motivations — even if they come at the expense of Hispanic and Black Texans.

“I hate to be an alarmist. I want to look for the silver lining, but I don’t see one,” said Jose Garza, a veteran civil rights attorney who has represented the Texas House’s Mexican American Legislative Caucus for a decade. ”I think that this is a time of great opportunity for the Republicans.”

You can read the rest – none of it is unfamiliar. Tensions are already high due to the quorum break plus the general unhinged racism from state leadership. The early word is that State Senators have already seen a draft map, which will be drawn to be 20-11 for the Republicans, a net loss of two seats for the Dems if it works out that way. The Cook Political Report expects the eventual Congressional map to add two Republican seats to the existing total. It’s going to be fun, just wait and see.

All this assumes that the Lege is allowed to draw non-Congressional maps, which remains a matter of dispute.

Texas Attorney General Ken Paxton has asked a federal judge to dismiss a lawsuit filed by two Democratic state senators against Gov. Greg Abbott over his plan to redraw political districts during an upcoming special session of the Legislature.

In a Wednesday motion, the attorney general’s office argued that the lawsuit is “wrong about Texas law” and is “inconsistent with past practice and judicial precedent.” It asks that the lawsuit be dismissed or suspended until after the redistricting process is concluded.

The lawsuit — filed Sept. 1 by Sens. Sarah Eckhardt, D-Austin, and Roland Gutierrez, D-San Antonio — argues that the state constitution explicitly requires political districts in the state to be redrawn during the first regular session after the publication of the U.S. census.

[…]

The lawsuit argues that a federal judge has the “exclusive obligation” to draw temporary maps to be used in the 2022 elections and that the legislative redistricting process should wait until 2023, when the next regular session is scheduled to occur.

The senators’ “theory — which seeks to exploit delays in the federal census caused by the COVID-19 pandemic — turns the Texas Constitution on its head,” reads the motion from the attorney general’s office. “That provision prescribes what the Legislature must do, but neither it nor any other provision prohibits the Legislature from redistricting at other times when circumstances call for it.”

See here for the background. I have to assume some kind of ruling is close at hand, if only to prevent future messes. I have not seen any indication of a hearing date, however, so who knows. In any event, enjoy your last weekend before new maps get drawn.

Galveston ISD mask mandate remains, Round Rock gets halted

Good.

A Galveston County judge Thursday denied an attempt by Attorney General Ken Paxton to stop Galveston ISD from requiring masks, according to a court document.

Judge Kerry Neves ruled against Texas’ request for a temporary restraining order on mask mandates in the district.

According to court documents, a hearing on the matter is set for Sept. 28.

See here for the background. That’s the whole Chron story – the Galveston County News covered this as well, but they’re behind a paywall so I can’t see it. Paxton scored an initial win against Paris ISD in his second round of lawsuits, though that happened without Paris ISD being in the courtroom. It would seem he used that same tactic in Round Rock.

A state district judge in Williamson County has temporarily blocked the Round Rock school district from enforcing its mask mandate, according to Texas Attorney General Ken Paxton, who sued the school district.

In a tweet Thursday night, Paxton’s office declared “Another WIN!” in its legal fight against school districts that have defied Gov. Greg Abbott’s executive orders banning schools from requiring masks. Paxton sued Round Rock along with Elgin and other school districts with mask mandates last Friday.

[…]

In a statement, Round Rock school district leaders said they had not been officially served or notified by Paxton’s office of the order. District officials also said they were not given the opportunity attend any court proceedings to oppose the order, but they said they would “comply with any lawfully issued court order.”

“We will also use all proper and available legal proceedings to challenge this order and vigorously defend its long-established lawful authority to provide a safe and healthy learning environment for Round Rock ISD students and staff, including during this pandemic,” the statement said. “The district continues to strongly encourage and recommend the use of masks in accordance with guidance from our local health authorities.”

I totally get Paxton playing dirty, but what is up with these judges letting it happen? Do they have no responsibility to at least inquire why there’s no opposing counsel? I’m puzzled, to say the least.

As for the other affected districts, I did a quick Google News search and didn’t see any news for them. I would assume there will be more rulings in the coming days, but for now as far as I can tell this is where we are.

Federal judge will fast-track mask mandate ban lawsuit

I’m ready.

Federal District Judge Lee Yeakel said Wednesday morning he intends to fast-track a lawsuit filed on behalf of 14 Texas schoolchildren with disabilities who allege that Gov. Greg Abbott’s ban on mask mandates breaks federal law by discriminating against them because they are particularly vulnerable to COVID-19.

In Wednesday’s hearing, Yeakel denied a request for a temporary restraining order that would have barred Texas from enforcing Abbott’s order until Oct. 6, when the case is scheduled for trial.

Yeakel said he needs more information about the case before he will be ready to make a ruling.

The delay will allow the judge to hear from witnesses and see other evidence in the case. No matter what his decision on the case, Yeakel said he expects it to be appealed to higher courts — possibly as far as the U.S. Supreme Court.

“I think the issues in this case are extremely important,” Yeakel said.

In legal filings and in court, lawyers for the 14 children argued that Texas’ mask mandate prevents school districts from making reasonable accommodations for children with disabilities, in violation of the federal Americans with Disabilities Act. They also said it preempts the federal American Rescue Plan, the COVID-19 relief package signed into law by the president earlier this year, which they said provides discretion for school districts to follow federal Centers for Disease Control and Prevention recommendations.

[…]

The lawsuit is against Attorney General Ken Paxton, Abbott and Abbott’s Texas Education Agency. The order was defended in court Wednesday by lawyers from Paxton’s office.

The crux of their defense was that the lawsuit was improper because none of the defendants are the right people to sue over Abbott’s mask order. They said the proper people to sue would be those who are enforcing the law, but no one is actually enforcing it, so there’s no one to sue.

“(Abbott’s order) doesn’t stop the plaintiffs from doing anything. They can say, think, do whatever they want. It does not regulate their conduct, it regulates the conduct of local officials,” said Todd Dickerson, an assistant attorney general, adding that there is “no credible threat of enforcement” from the local district attorneys who are supposed to enforce it.

See here and here for the background. The “you can’t sue me” dodge was a key component of Abbott’s claim/admission that he has no power to enforce the mask mandate ban, and has been a part of the defense that he and Ken Paxton have put forward in the various lawsuits against them over the ban. As such, it’s not a surprise to see it turn up here – this is becoming a foundational piece of their governance, which is that no one can hold them accountable for anything. But as the plaintiffs point out, for a guy who claims he can’t enforce Abbott’s mask mandate ban order, he sure is suing a lot of people to do just exactly that. So which one is true? We’ll see what the judge makes of it.

The Republican AG primary just got bigger

The more, the more miserable.

Rep. Matt Krause

Attorney General Ken Paxton just got another Republican primary challenger, but this time it is someone who has been close to him for years: state Rep. Matt Krause.

The Fort Worth lawmaker and founding member of the House Freedom Caucus says he is running as the “faithful conservative fighter,” hoping to bring a similar conservative ideology to the position that Paxton is known for — but without the legal troubles that have dogged him for most of his time in office.

“I think Texas needs — and wants — an attorney general who can give his or her full focus to the job,” Krause said in an interview with The Texas Tribune.

[…]

Krause is the third serious primary opponent to announce against Paxton. The field already includes Land Commissioner George P. Bush and Eva Guzman, the former justice on the Texas Supreme Court.

Krause said he is “not sure either one of them could win a primary.”

But the most remarkable aspect of his candidacy may be that unlike Bush and Guzman, Krause has been a friend of Paxton and political ally. They served in the Legislature together from 2013-15, and Krause endorsed Paxton early in the 2014 primary for attorney general.

Whatever. Krause is the most Paxton-like of the other candidates, but as a State Rep he will have the least name recognition among them, and if you don’t think that matters in a statewide primary, you haven’t been paying attention to recent primaries. Krause doesn’t have much money – the Trib story says he had about $100K on hand in his July filing – and that’s the fastest route to getting voters to know who you are. He’s giving up a seat he won by nine points in 2020 – it was eight points in 2018, and 20 points in 2020, before Tarrant County took its big step towards Democrats – which makes me wonder if he’s not confident about his future post-redistricting. He may also just think he’s the only one that can beat Paxton, and that in turn may be a reflection of the belief that Paxton is a weak link for the Republicans.

Along those lines, and coincidentally just before Krause’s announcement, the Chron profiles the two Dems who seek to oust Paxton, or whoever does that in the Republican primary.

Two candidates are so far vying for the Democratic nomination: Joe Jaworski, 59, a mediator and former Galveston mayor, and Lee Merritt, 38, a nationally recognized civil rights attorney.

Both of the Democrats have emphasized the need to bring integrity back to the attorney general’s office. It’s a line of attack that Paxton’s Republicans challengers are putting front and center, as well.

“Of course, I was saying that before George Bush was, but I welcome his perspective,” Jaworski said. “I mean, of all offices, for Christ’s sake, the attorney general’s office needs to be above reproach.”

[…]

If elected, Jaworski said he plans to push for policies that increase voter access to the polls, support the Affordable Care Act, expand Medicaid and legalize cannabis. Jaworski, like Merritt, says the attorney general’s office is wasting tax dollars on investigating rare voter fraud cases.

“We don’t have a voter fraud problem; we have a Ken Paxton problem,” he said. “He is using this as an ideological pivot for his base and to justify whatever few prosecutions he can muster.” Jaworski said Paxton should instead be doing more to address gun violence, adding “people are actually dying in those instances.”

Both Merritt and Jaworski have said they would create a civil rights division within the office.

Merritt, though he entered the race this summer, almost a full year later than Jaworski, has wasted no time fundraising. In the last reporting period that spanned July 7 to Aug. 6, Merritt raised more than $285,000, more than any Republican in the race, including Paxton.

Over the same period, Jaworski raised about $30,000, while Bush raised about $158,000 and Guzman raised $193,000. Paxton raised about $39,000, but the incumbent maintained the most cash-on-hand by millions at last count.

Merritt rose to prominence in recent years for taking on high-profile police accountability cases and representing families of Black Americans killed by police, including George Floyd, Ahmaud Arbery, Atatiana Jefferson and Botham Jean. If elected, he would be the state’s first Black attorney general.

In 2017, online magazine The Root named Merritt the eighth-most-influential African-American between ages 18 and 45 in the U.S, three spots ahead of Beyoncé.

Having worked on criminal justice reform issues with attorneys general in other states, even Republicans such as Chris Carr of Georgia, Merritt said he could see a stark contrast between the work they were doing and what little Paxton has done.

For instance, Carr in May signed a law repealing the “citizen’s arrest” that was used as a defense in the fatal shooting of Arbery. Meanwhile, Merritt said, he sees Paxton’s office regularly allowing law enforcement to keep video evidence of police abuse of force outside of public view.

“It was that frustration of: The most basic responsibility of the attorney general is to uphold the constitution and protect life, liberty and property,” he said about his decision to jump in the race. “And we have an attorney general who has been completely asleep at the wheel, and people are dying.”

There’s more in the story about Jaworski, but he’s familiar to me, so I included more about Merritt. Both would be a vast improvement, and not just over Paxton. Who I still think is the favorite to emerge on the GOP side, almost certainly in a runoff. We’ll see what the next campaign finance reports look like.

Paxton sues more school districts

Another rampage by the morally bankrupt felon in the AG’s office.

Best mugshot ever

Texas Attorney General Ken Paxton has unleashed another wave of lawsuits against school districts over their masking policies — but one of them says it doesn’t even require face coverings.

Midway Independent School District is a Waco-area district that sits on a list compiled by the attorney general’s office of school districts and counties that have flouted Gov. Greg Abbott’s ban and put in place their own mask-wearing orders.

The hitch? Midway ISD doesn’t mandate that students, teachers, school staff or visitors don masks while on school premises, a district spokesperson said Wednesday. Midway officials have tried to convince the attorney general’s office the district doesn’t have a mandate — but to no avail.

“We have not received information of why or how we are considered out of compliance or considered for a lawsuit,” district spokesperson Traci Marlin said in an email.

The Midway school district is among nine that Paxton announced on Tuesday that he is suing for allegedly defying Abbott’s executive order banning public schools and local governments from enacting local mask mandates.

Under Midway’s virus protocol, campuses can issue 10-day “mask directives” that encourage mask-wearing on the premises if virus transmission reaches a certain level — but doesn’t require it. The attorney general’s office pointed to that protocol as the basis of its lawsuit against the district but declined to answer other questions from The Texas Tribune.

Those directives are not the same as mandates, Marlin said — and in one case, such a directive successfully cut down the number of active cases on a campus.

“Directives are not enforced,” she said. “There are no punishments or repercussions.”

McGregor Independent School District, another district near Waco, did require mask-wearing if virus transmission became too severe but, at Paxton’s request, did not enforce the mandate, Superintendent James Lenamon said in a statement.

Nonetheless, Paxton sued the district.

“The district is disappointed that the AG has decided to sue anyway,” Lenamon said.

[…]

In addition to McGregor and Midway, Paxton announced lawsuits against seven other districts Tuesday: Diboll, Honey Grove, La Vega, Longview, Lufkin, Paris and Waco school districts.

See here for the previous story. The fact that neither Ken Paxton nor Greg Abbott has the power to enforce the mask mandate ban isn’t stopping him. Given that, we should not be surprised that he isn’t particularly concerned about the details in these districts. This is all about throwing his weight around. And by the way, for anyone who might have thought that P Bush or Eva Guzman would present a more moderate, less “burn the witch!” alternative to Paxton in the Republican primary, I’m not seeing any statements from them in which they question the wisdom of this effort. I’m just saying. (There is one candidate who has spoken about it.)

Ironically, the one win Paxton has chalked up so far has come against the one school district that appeared to have found a silver bullet.

Paris schools announced Tuesday they are no longer requiring masks on campus. This comes a month after the Texas Attorney General Ken Paxton sent the district a cease and desist letter telling them to stop requiring masks. Paxton listed Paris ISD, the school board and the superintendent in a lawsuit over the same mandate.

According to a temporary restraining order signed by a Lamar County district judge Monday, Paris Independent School District is no longer able to enforce their mask mandate and, they backed down. But despite the order Paris ISD says they will continue to strongly encourage everyone on campus to wear one.

“It was a rather cowardly act on the Attorney Generals office’s part,” said General Counsel for the district, Dennis Eichelbaum.

[…]

In August, the district included masks as a part of their dress code citing Chapter 11 of Texas Education Code, which states the school board has the right to set the dress code.

“There’s absolutely no reason why if we want to have a dress code, there’s no justification for the government office without having suspended the laws that give us the authority to run the district, to allow us to do our job,” said Eichelbaum.

According to court documents, a district judge signed a temporary restraining order against the district on Monday making it against the law for them to require masks on campus.

“We are still encouraging everyone to wear masks even if it’s not mandated, Paris ISD has seen a significant drop compared to other communities in the area with regard to children being sent home for COVID-19. we believe there’s a connection with the mask mandate., and we encourage everyone to continue to wear a mask to keep everyone safe,” Eichelbaum said. “We’re now set for a hearing next week in district court, and at that time, we will be defending our board policy which permits mask mandates.”

Eichelbaum says they will be defending the district’s right to enforce safety measures during the COVID-19 pandemic.

A hearing is set for Tuesday, September 21. This will determine whether the temporary restraining order will be overturned.

See here and here for the background. You got a raw deal, Paris. I’m rooting for you at the hearing. KVUE has more.

UPDATE: Wait, this detail wasn’t in that last story for some reason.

Dennis Eichelbaum, lawyer for Paris ISD, said Paxton’s office — despite the fact Paxton had sent multiple letters threatening lawsuits beforehand — didn’t notify the district of the lawsuit until after the hearing was over, and the restraining order had been granted. Paris ISD didn’t get to make its case against the restraining order as a result, Eichelbaum said, describing it as “a cowardly move” from Paxton.

“First, it’s against the rules of civil procedure. So he doesn’t care about the law when it applies to him,” Eichelbaum said. “He’s very brave to go to court when you’re not there to defend yourselves.”

“A lot of times attorneys will get sanctioned for it if they do something like this,” he added, saying he will ask the district’s trustees if they want to pursue the matter with the judge.

Emphasis mine, and wow. What a sniveling coward Ken Paxton is. Please, please, pursue this matter with the judge.

Paxton sues again over SAISD’s vaccine mandate

Yes, vaccine mandate. For teachers and staff.

Best mugshot ever

For the second time in a month, Texas Attorney General Ken Paxton sued San Antonio Independent School District and Superintendent Pedro Martinez for requiring all staff to be vaccinated against COVID-19.

Martinez issued a staff vaccine mandate and mask mandate Aug. 16 for everyone inside school buildings. Three days later, Paxton sued Martinez and SAISD over both mandates, stating in the lawsuit that the superintendent and the district were “deliberately violating state law,” as a July executive order from Gov. Greg Abbott prohibits any entity that receives public funds from mandating COVID-19 vaccines that had received only emergency approval from the federal government.

But the federal Food and Drug Administration granted full approval for the Pfizer COVID-19 vaccine on Aug. 23, and the lawsuit was dropped. Two days later, Abbott issued a new executive order, banning governmental entities from requiring any COVID-19 vaccine, regardless of FDA approval status.

Paxton filed the second lawsuit against SAISD in Bexar County on Sept. 9, seeking a temporary restraining order barring the school district from mandating vaccines. In the petition, Paxton claims SAISD and Martinez are again violating state law by “flouting” the August executive order.

“The decision to openly violate state law and devote district resources to defending Superintendent Martinez’s unlawful actions is irresponsible,” Paxton said in a statement. “But if school districts decide to use their limited funding to try to get away with breaking the law, my office will oppose them and uphold the rule of law in Texas.”

See here and here for some background. My reaction when Paxton filed the first lawsuit was that he was likely to prevail, and despite the FDA approval and Biden mandate (which has been announced but not yet fully implemented), I don’t see any reason why that would change. I will of course be happy to be wrong, and if it is the case that some people have gotten vaccinated as a result of the SAISD mandate then it’s a win no matter what happens in court. The main thing to remember here is that Ken Paxton, like Greg Abbott, is objectively pro-COVID, and we need to make them pay at the ballot box for it.

Once again with the religious objection to a Texas anti-abortion law

Stepping up again.

The Satanic Temple has joined the legal wrangling to block or overturn Texas’ severe new abortion law. That law, which the U.S. Supreme Court refused to block this week, bans the medical procedure after six weeks, including in cases of rape and incest.

The Salem, Massachusetts-based Temple filed a letter with the U.S. Food and Drug Administration arguing that its Texas members should have legal access to abortion pills. The group’s attorneys contend that its status as a non-theistic religious organization should ensure access to abortion as a faith-based right.

In the letter, the Temple argues that abortion pills Misoprostol and Mifepristone should be available for its use through the the Religious Freedom Restoration Act, which protects Native Americans’ use of peyote in religious rituals. The Temple says those the same rights should apply to the drugs it uses for its own rituals.

“I am sure Texas Attorney General Ken Paxton — who famously spends a good deal of his time composing press releases about Religious Liberty issues in other states — will be proud to see that Texas’s robust Religious Liberty laws, which he so vociferously champions, will prevent future Abortion Rituals from being interrupted by superfluous government restrictions meant only to shame and harass those seeking an abortion,” said Lucien Greaves, the Temple’s spokesman and co-founder, in an emailed statement.

“The battle for abortion rights is largely a battle of competing religious viewpoints, and our viewpoint that the nonviable fetus is part of the impregnated host is fortunately protected under Religous Liberty laws,” Greaves added.

The U.S. Supreme Court last year declined to hear a case brought by the the Temple to overturn Missouri abortion laws.

I can’t find a copy of the letter, so it’s not clear to me if this is an attempt to challenge SB8, the so-called “heartbeat” bill, or the bill restricting access to medical abortion that was passed during the second special session. The Temple’s own website has some general language about its actions, but not much more than that. They had previously objected to the “fetal remains” law, though I don’t know if they took any legal action about it, and earlier this year they filed a lawsuit over the sonogram law; you can see their statement about that here. I think it’s an overbid to call this the last hope to stop SB8, and I don’t know of any past successes by the Temple in stopping anti-abortion laws, but I applaud their efforts.

Paxton sues several school districts over mask mandates

Whatever, dude.

Best mugshot ever

Texas Attorney General Ken Paxton announced Friday that he filed a lawsuit against Richardson ISD, following through on his pledge to sue school districts who mandate masks.

The district defied Gov. Greg Abbott’s executive order prohibiting local entities from requiring masks. The RISD trustees voted last week to affirm Superintendent Jeannie Stone’s decision to require face coverings, after they were forced to close an elementary school because of a spike in COVID-19 cases and a sixth grader was admitted into the intensive care unit.

Paxton noted in a release that the office anticipates filing additional lawsuits against the districts flouting the governor’s order. This could include Dallas ISD — the first to openly defy Abbott.

“Not only are superintendents across Texas openly violating state law, but they are using district resources—that ought to be used for teacher merit raises or other educational benefits—to defend their unlawful political maneuvering,” Paxton said in a statement.

[…]

Richardson is among the first Texas districts to be sued by Paxton. Friday he also filed suit against the Galveston, Elgin, Spring and Sherman school districts, according to his office.

He has railed against the dozens of school districts and counties who stood firm on mask mandates, repeatedly posting on social media that he would sue them all. Paxton’s office maintains an ever-evolving list of local entities that are mandating masks.

Meanwhile, Abbott’s order is tied up in both state and federal courts as districts and advocates push for mask mandates to be local decisions.

Dallas County Judge Clay Jenkins is locked in a legal fight with the state over his decision to impose a local mask mandate for businesses and schools.

Disability Rights Texas recently escalated the legal battle, filing a federal lawsuit against Abbott, alleging his order unfairly harms children with disabilities.

Richardson trustees also recently voted to join an existing multi-district lawsuit challenging Abbott’s ban, which argues the governor’s executive order exceeds his authority and infringes on local control.

Paxton’s move could have federal implications, as well. The U.S. Department of Education’s Office for Civil Rights recently opened investigations into five states that prohibit mask mandates, saying such bans may violate the federal law meant to protect students with disabilities.

Department officials indicated they had not opened an investigation into Texas because its ban isn’t currently being enforced because of court orders.

Again, neither Ken Paxton nor Greg Abbott has the power to enforce mask mandate bans. Even if Paxton gets a judge to rule in his favor – the score so far is tilted pretty heavily against him – local DAs can and should thumb their noses at him. It’s not clear to me where these lawsuits have been filed – in this press release he said there were three of them, but didn’t get more specific than that. There may be more coming, so eventually we’ll sort it all out. In the meantime, Paxton can go pound sand. The Chron, Reform Austin, and KXAN have more.

UPDATE: Here’s the Trib story, which notes that the lawsuit against Galveston ISD was brought in Galveston County, as one might expect. That’s probably true of the others, each filed in their home county, but it would still be nice to have that confirmed.

First Court denies en banc hearing for Paxton trial move

We’re at a point in the Ken Paxton criminal case where it’s hard to adequately summarize the most recent development in a headline-sized bite.

Best mugshot ever

Attorney General Ken Paxton’s securities fraud case can be tried in his home county in North Texas, an appeals court affirmed Thursday when it denied the prosecution’s plea to reconsider the decision.

The 1st Court of Appeals in Houston denied a motion by prosecutors to hold a hearing of the full nine-justice court to review the decision made by a three-justice panel of the court in May to move the case from Harris County back to Collin County, where Paxton lives. The order could have avoided further delays in the six-year-old criminal case against the sitting attorney general and returned the case to what is seen as a friendlier venue to the two-term Republican incumbent. But on Thursday, the prosecution said it would continue its appeals.

“Because we agree with the dissenting justices that there are critical errors in the majority’s decision, we will seek further review of it in the Court of Criminal Appeals,” special prosecutor Brian Wice said in a statement.

Justices Gordon Goodman and Amparo Guerra dissented to the court’s majority opinion and Justice April Farris did not participate. Goodman, who was part of the three-justice panel that sent the case back to Collin, had dissented in part to the original decision.

[…]

In May, the panel of three Democratic justices allowed the case to return to Collin County on a vote of 2-1, ruling that the presiding judge who moved the case out of Collin County in March 2017 had no longer been assigned to the judicial region handling Paxton’s case. The ruling was a major victory for Paxton, who had asked the courts to be tried in his home county, a staunchly Republican area of the state where he and his wife, state Sen. Angela Paxton, R-McKinney, are well-known political figures.

But prosecutors had accused Paxton’s legal team of “sandbagging” the courts, by withholding information about the judge’s expired assignment so they could later raise the issue in an attempt to move the case back to Collin County. Wice argued that Paxton’s legal team had waited until the presiding judge, Gallagher, of Tarrant County, had moved the case out of Collin County to bring up his expired term with the appeals court. Wice asked the full appeals court to reconsider the panel’s decision and determine whether Paxton’s legal team knew of Gallagher’s expired term earlier in the case.

The court’s majority denied that request.

See here, here, here, and here for the background. I had previously said that the First Court had granted the request for an en banc hearing, but all they had done at the time was ask for a response from Team Paxton to that request. I’ve always said I was not a lawyer, now you know why. Now we wait once again for the CCA process to play out.

Mayor Turner orders unvaxxed city employees to get tested twice a week

So maybe get vaccinated, and avoid all the hassle.

Mayor Sylvester Turner

Unvaccinated city workers must get tested for COVID-19 twice a month and report their results to the human resources department, Mayor Sylvester Turner announced Wednesday.

Turner signed an executive order implementing the policy,which takes effect Oct 8. It will allow some exemptions for religious and medical reasons.

The plans come as the city regularly has had more than 300 active cases of the virus among its workforce, Turner said. The latest numbers showed 342 workers with the virus, including 129 police, 161 municipal and 52 fire department employees.

Those cases hamper city operations, the mayor said.

“When you have 129 police officers with COVID, they’re not able to perform their jobs. Same thing with municipal workers, and, for example, permitting, that slows things down,” Turner said. “Simply don’t want them to get sick and don’t want anybody, anybody to die.”

[…]

The policy will apply to all police, fire and municipal staff who have not been fully vaccinated. It will not apply to elected officials or appointed members to the city’s boards and commissions.

The fire, police and municipal workers unions did not respond to requests for comment on Turner’s plan.

Turner said staff will face disciplinary action if they do not comply.

“It could even cost you your job,” the mayor said.

The mayor in recent weeks had teased a policy to encourage vaccinations, saying many city workers have not gotten their shots.

Mayor Turner implemented a mask mandate for city employees in early August. As far as I know, that executive order has not been involved in any of the lawsuits over mandates and Greg Abbott’s ban on them. This is a step up from that – it’s not a vaccine mandate per se, but it’s pretty close and I doubt Greg Abbott or Ken Paxton will split hairs. (They already have a reason to be whipped into a frenzy about this.) Whether or not cities can issue vaccine mandates is on the agenda for the next special session. What I’m saying is, I don’t know how long I expect this policy to last. And that’s before we hear of the inevitable resistance from the police and firefighter unions – police unions around the country have been staunch resisters of vaccine mandates, and we know how well the Mayor and the HPFFA get along. I support what the Mayor is doing here – if anything, I’d want to see the testing be more frequent – I just doubt he’ll be able to fully implement it. I’ll be happy to be proven wrong.

Just a reminder, no one is enforcing Abbott’s mask mandate ban

In case you had forgotten.

While Republican Gov. Greg Abbott is speaking out against mask mandates in schools and suing to stop some Texas school districts from enacting them, in reality his order banning such mandates has gone largely unenforced — so much so that the federal government doesn’t consider it active.

Abbott threatened $1,000 fines for officials who try to impose mask mandates, although no such fines have been handed down. And if he wanted to, Abbott could send state troopers or deputize the Texas National Guard to enforce his order, as he has done on the border, but he hasn’t. Texas Attorney General Ken Paxton, meanwhile, has a published list of 71 non complying cities, counties and school districts; is fighting in court with at least six of them and sent letters threatening more legal action to others.

But in the court filings from the lawsuits, Paxton has acknowledged that neither he nor Abbott will directly enforce the ban on mask mandates, instead leaving it to local district attorneys, some of whom are already on-record saying that they don’t intend to prosecute.

Abbott’s own Texas Education Agency on Aug. 19 said that the ban on mask mandates would not be enforced until the courts have resolved legal challenges to his authority to do it. And the federal Department of Education chose Monday not to open an investigation into the matter in Texas, even as it launched probes of five other states with active bans.

[…]

The five largest counties in the state are Harris, Dallas, Tarrant, Bexar and Travis. The district attorneys for Harris and Bexar counties have already announced they don’t intend to prosecute school districts over mask rules, and a prosecutor with Travis County said the office would remain focused on violent crime, although they would evaluate the situation on a case-by-case basis.

Tarrant County did not respond to a request for comment, and a spokeswoman for Dallas County said: “This issue is working its way through the civil courts. At this point in time — until that’s concluded and depending on how that’s concluded — there’s no reason to consider a position on that.”

On Monday at a House Public Education Committee hearing, Rep. Steve Allison, a San Antonio-area Republican, acknowledged there’s “an appearance of dysfunction” in government right now over the mask orders and Abbott’s ban.

See here and here for the background. I’m not sure why the Travis and Dallas DAs are being so equivocal, but it doesn’t really matter. There’s no way they’ll prosecute anyone over this, not if they want to avoid having their asses handed to them in the next primary election. We all know this is about Greg Abbott trying to look macho for the Republican primary voters. There’s no need to help him with that in any way.

First two lawsuits filed against the voter suppression bill

No time wasted.

The top elections official in Harris County and a host of organizations that serve Texans of color and Texans with disabilities have fired the opening salvos in what’s expected to be an extensive legal battle over Texas’ new voting rules.

In separate federal lawsuits filed in Austin and San Antonio, the coalition of groups and Harris County sued the state over Senate Bill 1 before it was even signed into law, arguing it creates new hurdles and restrictions that will suppress voters and unconstitutionally discourage public officials and organizations from helping Texans exercise their right to vote.

The lawsuits claim the legislation violates a broad range of federal laws — the Voting Rights Act, the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 — and the First, Fourteenth and Fifteenth Amendments.

“Egregiously, SB 1 takes particular aim at voters with disabilities, voters with limited English proficiency — who, in Texas, are also overwhelmingly voters of color — and the organizations that represent, assist, and support these voters,” the plaintiffs in the Austin lawsuit wrote in their complaint.

The plaintiffs in the San Antonio lawsuit,, which includes Harris County, also raise claims that lawmakers intentionally discriminated against voters of color in pushing the legislation.

[…]

The plaintiffs attack head on the lack of evidence that fraud is a widespread problem in Texas elections.

In the San Antonio lawsuit, they argue SB 1’s “additional burdens and restrictions” cannot be justified by invoking “unspecified and unproven voter fraud” when there is no proof that it occurs “beyond the very few examples already identified through Texas’s pre-existing processes and procedures.”

“Rather … SB1 is a reaction to Texas’s changing electorate, which is now more racially diverse and younger than ever before,” they wrote in their complaint.

The claims raised collectively in both lawsuits are as expansive as the legislation is far-ranging.

They include claims on SB 1’s new restrictions on voter assistance, including the help voters with disabilities and those with limited English proficiency are entitled to receive. The plaintiffs point to the reworked oath that a person assisting a voter must recite, now under penalty of perjury, that no longer explicitly includes answering the voter’s questions. Instead, they must pledge to limit their assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.”

As part of its claims of intentional discrimination, the lawsuit that includes Harris County as a plaintiff also calls out SB 1’s prohibition on the drive-thru and 24-hour voting initiatives used by the diverse, Democratic county in the 2020 election — both of which county officials said were disproportionately used by voters of color.

SB1 also makes it a state jail felony for local election officials to send unsolicited applications to request a mail-in ballot. Several counties proactively sent applications to voters 65 and older who automatically qualify to vote by mail, but Harris County attempted to send them to all 2.4 million registered voters last year with specific instructions on how to determine if they were eligible.

In outlawing those voting initiatives, Republican lawmakers made it clear they were targeting the state’s most populous county, even though other counties employed similar voting methods.

“My first and only priority is to educate and help voters to lawfully cast their ballots,” Harris County Elections Administrator Isabel Longoria said in a statement. “Voting by mail is not simply another method to vote — for many senior voters and voters with disabilities, it’s their only option to vote. SB1 makes it a crime for me to encourage those who are eligible to vote by mail to do so, effectively making it impossible to fulfill my sworn duty as Elections Administrator.”

Both lawsuits also argue the constitutionality of a section of SB 1 that creates new a “vote harvesting” criminal offense, which it defines as in-person interactions with voters “in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure.” The lawsuits argue the language in that section — and the criminal penalties attached to it — are unconstitutionally overbroad and vague and could serve to quash legitimate voter turnout initiatives.

The lawsuits also challenge provisions of SB1 that bolster protections for partisan poll watchers inside polling places, and new ID requirements for voting by mail.

You can see copies of the lawsuits here for Austin and here for San Antonio. I note that Isabel Longoria, the Harris County elections administrator, is a defendant in her official capacity in the Austin lawsuit and a plaintiff in the San Antonio lawsuit. I assume there’s a technical reason why a county elections administrator is named as a defendant in these actions, but I have no idea what algorithm is used to decide which county and administrator. (The Austin lawsuit also includes Dana DeBeauvoir from the Travis County elections office as a defendant, while the San Antonio lawsuit picks the Medina County admin. Go figure.)

I’m not going to speculate on the merits or chances of these lawsuits, which I assume will eventually get combined into a single action. I expect that they have a strong case, and we know from past performance that the Republicans in the Lege tend to be shoddy and indifferent in their work when they pass bills like these, but none of that really matters. What matters is what if anything the Fifth Circuit and SCOTUS deign to find objectionable. For obvious reasons, I’m not going to get my hopes up. I expect the Justice Department to get involved on the side of the plaintiffs, and there’s always the specter of passing the John Lewis Act and making this way easier on everyone. In the meantime, settle in for the long haul, because we know this will take years to come to a resolution. Look to see what happens when (I feel confident saying “when” and not “if”) a temporary restraining order is granted.

Matthew Dowd

Not sure what to make of this.

Matthew Dowd

A little more than a week after the January 6 attack on the Capitol, Matthew Dowd announced he was leaving his job as chief political analyst with ABC News after thirteen years with the network. Freed from his talking-head obligations, Dowd could now speak out even more pointedly about what he believes to be the threat to democracy posed by Trump and his imitators. This summer, in tweets and cable interviews, the Democrat turned Republican turned Democrat has excoriated Governor Greg Abbott for a response to COVID-19 that has cost Texans lives. In a June appearance on MSNBC, Dowd said that democracy is in peril and “the only fix to this is Republicans have to lose, and lose badly, in a series of elections, and I’m willing to do whatever I can, on any day I can, to make sure that happens.”

[…]

TM: In early August you retweeted a message from University of Texas political psychologist Bethany Albertson: “It seems like TX could use a gubernatorial candidate who can stand up for voting rights and science. ASAP.” A week later you tweeted, “I will do whatever I can to defeat the GOP up and down the ballot in Texas in 2022. Literally, our values and our lives depend on it.” Are you thinking about challenging Abbott?

MD: So, here’s the best way to answer that for me. I will do whatever I can to defeat the GOP leadership and that begins with Greg Abbott, but doesn’t end with Greg Abbott. I describe Greg Abbott and Dan Patrick and Ken Paxton as craven, cruel, and crook. One’s craven. One’s cruel. And one’s a crook. And they need to go. I wish they had the gumption or wish they had the strength to resign after how much they failed the state. They won’t. So I’ll do whatever I can, in any way I can, to help in that.

I am not going to run for governor, though that doesn’t mean that I wouldn’t run for something in 2022. But I haven’t made any decision about that. I’m just trying to figure out how best I can help do this and assist the Democrats in any way I can. And I’m going to speak out for sure, and whether or not that includes running for office, we’ll see. But it wouldn’t be for governor.

TM: Explain why you’d be willing to run for another statewide office but not for governor.

MD: I think there’s people positioned that would carry that mantle better. And the other thing is, I don’t want to get in a debate in a governor’s race, which would become exceedingly high intensity, about “the former Bush guy,” “the former Republican” running.

TM: That leaves Patrick and Paxton as potential targets.

MD: I don’t want to say any more, but I’m also not a lawyer so you can take it from there.

TM: Mike Collier, who came within five points of Patrick in 2018, is seeking a rematch.

MD: Yeah, he ran last time and he ran for comptroller in 2014 and lost [to Glenn Hegar by nearly 21 percentage points]. He seems like a nice guy. That’s up to him to make the right decision and the Democratic party to make the right decision of who they want to nominate.

Dowd had briefly flirted with the idea of running for Senate in 2018 against Ted Cruz, which the interview touches on. I like Mike Collier and think he’s a pretty good foil for Dan Patrick, but if Dowd thinks he can do better – in particular, if he thinks he can raise more money and get more attention for that race – then come on in and we’ll sort it out in the primary. The main thing here is that he has the right attitude. We could use a lot more of that. Campos, who had an inkling this was coming, has more.

More injunctions against the mask mandate bans

Keep ’em coming.

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

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

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

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

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

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

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

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

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

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

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

Abbott admits he can’t enforce his mask mandate ban

So what are we even doing here? Just make your mandate and move on.

Gov. Greg Abbott has been embroiled in court battles with Texas cities, counties and public schools that have defied his ban on local mask mandates. But in the urban areas where those battles are being waged, the local officials Abbott needs to enforce his ban aren’t playing ball.

Even as Abbott and Attorney General Ken Paxton vow to punish local government and school district officials who flout the governor’s executive order, they conceded in court documents that they actually have no power to enforce the ban.

“Neither Governor Abbott nor Attorney General Paxton will be enforcing” the order, Paxton argued in a Monday court filing in Dallas.

Since the pandemic began, Abbott has issued a flurry of executive orders, the most prominent of which have limited cities and counties from enacting measures intended to slow the spread of COVID-19, like mask mandates and occupancy restrictions on businesses like restaurants and retailers.

Cities, counties and school districts in the state’s major urban areas have responded with a flood of lawsuits challenging Abbott’s executive order prohibiting them from enacting mask mandates amid a surge of COVID-19 cases and hospitalizations.

In a bid to convince judges to toss out those legal challenges, Abbott and Paxton claim in recent court filings that they’re not the right target because it’s up to local prosecutors to enforce Abbott’s orders.

“The Governor’s executive orders, having the full force and effect of law, are enforceable by state and local law enforcement,” spokesperson Renae Eze said in a statement.

But in the state’s urban counties, those district attorneys are mostly Democrats who are unlikely to sue fellow local officials for violating Abbott’s order banning mask mandates.

“[Abbott is] saying, ‘Well, it’s not enforceable, only the DA can do it,” said Randall Erben, an adjunct law professor at the University of Texas at Austin. “Well, the DAs in Travis, Harris and Dallas are not going to prosecute anybody for violation of the executive order.”

In the state’s most populous county, Harris County District Attorney Kim Ogg doesn’t anticipate enforcing Abbott’s executive order because it’s not a criminal matter, a spokesperson said.

Abbott’s legal argument — tucked into court documents in at least five lawsuits challenging his order — has prompted some lawyers representing local governments and public schools to call out the governor and Paxton for saying one thing in public and another in the courtroom.

Yeah, Harris County Attorney Christian Menefee was one of those people. This is, as the article notes later on, one hundred percent Abbott and Paxton beating their chests for the rubes. Again, never believe a word Ken Paxton says.

Two points to consider. One is that while those of us fortunate enough to live in a sufficiently enlightened county can now put whatever pressure we want on our mayors and county judges and school boards to move forward with their mask mandates, since there won’t be any criminal consequences for them and in that sense all of the ongoing litigation doesn’t really matter. But if your city or school district is not in such a place, then you really do care about what the Supreme Court will ultimately say, because your Mayor or Superintendent will be in the crosshairs otherwise. Even with a favorable SCOTx ruling, Abbott has ratcheted up the political pressure enough that it may not be worth it to them regardless. The harm they’re doing for the sake of winning the support of a depraved bunch of Republican primary voters is incalculable.

And two, this is now another example of Abbott and Paxton making “you can’t sue me” a key point of their governance. The “heartbeat” abortion ban atrocity is perhaps the highest-profile example, but Paxton’s claims that he’s exempt from the state’s whistleblower laws because he’s not a “public employee” are another, and it’s just as pernicious. It’s all about wielding power without responsibility or constraint. If trends hold to form, look for bills introduced by Republicans in the next Lege to include clauses about why the state can’t be sued by anyone who claims to have been harmed. At least, that will be the case until we have Democrats in the executive offices. At that point, it will be game on for limiting what they can do. But for now, we’re not supposed to sue them for anything because…well, just because.

January 6 committee seeks answers from Paxton

Good. Play hardball and do not let him get away with anything.

Best mugshot ever

The U.S. House committee investigating the Jan. 6 attack on the Capitol has requested communications between Texas Attorney General Ken Paxton and Trump White House officials in the months leading up to the insurrection.

The request was issued this week as a part of a series of letters seeking materials from the National Archives and Records Administration, the Federal Bureau of Investigation, the Department of Homeland Security and other executive agencies.

Committee chair Rep. Bennie Thompson, D-Mississippi, demanded that the National Archives hand over “all documents and communications referring or relating to the 2020 election results between White House officials and officials of State Governments.” The document then listed Paxton specifically, along with seven officials from other states.

In the letter, Thompson emphasized the urgency of the request and gave a deadline of no later than Sept. 9 to comply.

“This is our first request for materials, and we anticipate additional requests as our investigation continues,” Thompson wrote.

This demand comes after Paxton spoke at the pro-Trump rally in Washington, D.C., before the insurrection began, touting his unsuccessful legal effort to overturn the 2020 election.

“We will not quit fighting. We’re Texans, we’re Americans, and the fight will go on,” Paxton told the crowd.

As others have documented, the January 6 committee is asking for a lot, and they’re not fooling around. Paxton was there in DC inciting the crowd, he filed the kind of seditious lawsuit to overturn the election that recently got the Kraken lawyers sanctioned and for which there have been two complaints filed against him, and he’s generally been a remora on Trump’s shark from the beginning. If he doesn’t have something to hide, that will be an upset. All I want from the committee is to not take any bullshit from him. Hit him hard, hit him with subpoenas, and do not let up until you’ve gotten everything there is to be gotten from him.

Bexar mask mandate put on hold again

SCOTx has entered the chat, again.

The Texas Supreme Court has temporarily blocked San Antonio and Bexar County’s mask mandate, marking the latest update in a flurry of court battles over mask requirements statewide.

The decision comes after an appellate court earlier this month allowed the local mask mandate to stand, despite Gov. Greg Abbott’s executive order barring public entities from instituting such requirements. The new ruling is a win for the governor and Attorney General Ken Paxton, who had asked the high court earlier this week to step in and stop local officials.

[…]

In the order, the high court noted that the lawsuit does not consider whether people should wear masks or whether government officials should compel them to do so. Rather, the justices said, the case concerns which levels of government can make those decisions.

“The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels,” they wrote. “That status quo should remain in place while the court of appeals, and potentially this court, examine the parties’ merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.”

The court has yet to make a final decision on the matter, which could take weeks or months. Several similar but separate lawsuits, including two in Dallas and Houston, are also currently being litigated.

See here, here, and here for some background. This only affects the Bexar County case – the litigation in Harris and Dallas and other places have not yet been taken to the Supreme Court. It seems likely that they would go the same way, but as noted so far SCOTx is not inclined to let Abbott and Paxton jump the line on this, so they have to go through the process first. Also, this is a stay of the temporary restraining order, which means that if and when the judge in Bexar County issues a temporary injunction, as the judge in Dallas County just did, the SCOTx stay will become moot and Abbott and Paxton will have to go through the process again, to get another stay while that ruling is appealed. Isn’t this fun?

Also, as a friendly reminder, never believe a thing Ken Paxton says:

I know you didn’t need to be told that, but it never hurts to say. The Trib and the Current have more.

Dallas County gets its injunction

Another big win.

Clay Jenkins

A district court judge has sided with Dallas County Judge Clay Jenkins in his dispute with Gov. Greg Abbott over the county’s mask mandate, allowing the mandate to stay in place.

Judge Tonya Parker issued a temporary injunction Wednesday on Abbott’s order that public entities such as cities, counties and schools can’t issue mask requirements or mandates. The injunction allows Jenkins’ mask order — and the mask requirements of local school districts — to continue, for now.

Parker in her ruling said that Jenkins has shown that Dallas County residents “will suffer probable imminent and irreparable injury through County Judge Jenkins being precluded from exercising his authority” to require masks in public.

The judge noted that the highly transmissible delta variant threatens to overwhelm the healthcare system and has increased hospitalizations and death in Dallas County.

“Each of these bases for probable imminent and irreparable injury independently supports the issuance of the requested temporary injunction,” the ruling said.

The temporary injunction will return Jenkins to “the position he was in” before Abbott’s executive order that barred face mask requirements, the ruling said.

Parker set a hearing for Jan. 10 to review the temporary injunction, though attorneys for the state could file an appeal to Parker’s ruling sooner than that.

See here for the background. A copy of the ruling is here, and you can see Judge Jenkins doing a media call about this here. This will be appealed, of course – one presumes that Paxton and Abbott have learned their lesson and will go through the appellate courts first – and we’ll see how long that takes. It may be that at the least SCOTx is less inclined to grant emergency relief. We’ll know when it gets to them. For now, a win for the good guys.

On a related note, Harris County Attorney Christian Menefee sent out an interesting press release that notes some differences between what Ken Paxton says in public about mask mandate bans and what he’s been saying in court about them.

In GA-38, the Governor banned school districts and local officials from mandating masks, and stated local officials who issue such safety measures would be subject to a “fine up to $1,000.” In response to recent mask mandates imposed by local officials, Attorney General Ken Paxton has stated publicly—and repeatedly—that his office will enforce Governor Abbott’s mask mandate ban. He and Governor Abbott joined together in stating that “any school district, public university, or local government official that decides to defy [the Governor’s mask mandate ban] will be taken to court.”[1] His office has compiled a list of “government entities unlawfully imposing mask mandates,” designed to intimidate those entities into compliance.[2] He has sent letters to many on that list, threatening them with enforcement.[3] He has tweeted several times he intends to sue these entities, most recently saying “I will defend TX Law & sue every entity that violates it. We will win!”[4]

Despite these public statements, the Attorney General admitted to the courts hearing the lawsuits brought by local officials and school districts that his office does not and cannot enforce GA-38, nor can he seek the $1,000 fine provided in the order. His office has stated plainly that “[n]either Governor Abbott nor Attorney General Paxton will be enforcing GA-38.”[5] Instead, the Attorney General acknowledges that only local district attorneys can enforce GA-38—he has claimed that entities like Harris County, other counties/cities, and certain independent school districts cannot sue the Governor and the Attorney General because they have “alleged no credible threat of prosecution by local district attorneys, who would be the ones enforcing GA-38.”[6]

Menefee added: “I presume the Attorney General is telling the truth in his court filings. He should be telling everyone else the same thing and letting local governments and school districts continue doing what they can to stop the spread of COVID-19, especially among our children.”

Go view the document to see the footnotes; the last two refer to the AG’s own filings in the cases involving Harris County and others. I mean, it’s not like anyone should have expected the truth from Ken Paxton, but it’s still bracing to see it laid out like that.

Greg Abbott remains COVID’s best friend

It’s hard to even know what to say.

Gov. Greg Abbott on Wednesday announced an executive order banning COVID-19 vaccine mandates regardless of a vaccine’s approval status with the U.S. Food and Drug Administration.

He also said he was adding the issue to the agenda for the current special session of the Texas Legislature.

The order comes two days after the FDA granted full approval to the Pfizer vaccine. That raised questions about the fate of a previous Abbott order that prohibited vaccine mandates, but only for those under emergency authorization.

Abbott’s latest order is simple, saying “no governmental entity can compel any individual to receive a COVID-19 vaccine.” The order preserves exceptions for places like nursing homes and state-supported living centers.

At the same time, Abbott asked lawmakers to consider legislation addressing whether state or local governments could issue vaccine mandates and, if so, which exemptions should apply.

“Vaccine requirements and exemptions have historically been determined by the legislature, and their involvement is particularly important to avoid a patchwork of vaccine mandates across Texas,” Abbott said in a statement.

[…]

There specifically appeared to be the fresh potential for cities, counties and school districts to require their employees to get vaccinated against COVID-19. San Antonio Independent School District had already announced mandatory employee vaccinations, prompting a lawsuit from Attorney General Ken Paxton.

District officials said Wednesday they will move forward with the mandate — despite Abbott’s latest order.

“We strongly believe that the safest path forward as a school district is for all staff to become vaccinated against COVID-19,” the district said in a statement.

See here for some background, and here for a copy of the order. As the story notes, this would prevent government entities from ordering their employees from getting COVID shots, though as you can see that’s already being challenged. Private employers are not affected by this, so if you work for one of the increasing number of them that are imposing COVID vax mandates, you’re out of luck. A bill passed during the regular session forbids businesses from requiring proof of vaccination from their customers, though that doesn’t take effect until September 1 so Harry Styles can still do what he wants.

I don’t think this is anywhere near the end of it. The same arguments being made about mask mandate bans – successfully, so far – by multiple counties and school districts is that the Disaster Act of 1975 doesn’t actually give Abbott this power. That would be equally true for vaccine mandate bans, I would think. That doesn’t mean the courts, by which I mostly mean the Supreme Court, will eventually accept that argument, just that these same entities will give it a try. The federal government will have a say as well, and let’s not forget the federal lawsuit, too. We’re also going to have an election next year, and we have the option of electing a Governor who wants to fight against the COVID virus instead of fighting for it. There’s a lot more of this story to be written. The Current and the Chron have more.

More on the Paxton self-exoneration report

More and more ridiculous.

Best mugshot ever

Texas Attorney General Ken Paxton’s office refuses to release the names of the authors or the taxpayer cost of the internal report published Tuesday that concluded that whistleblowers’ accusations that Paxton broke the law were unfounded.

Yet the body of the report indicates that a key author was Paxton’s top deputy, First Assistant Attorney General Brent Webster, who was hired on Oct. 5 — the same day the internal investigation was initiated and just days after seven senior officials at the agency had notified Paxton that they had reported him to law enforcement.

Webster, whose annual salary was $265,000 as of July, was hired to replace Jeff Mateer, one of the whistleblowers, who resigned Oct. 2. Webster did not respond to a request for comment Wednesday.

[…]

An AG spokesman, Alejandro Garcia, said Tuesday that the report was written by a group of lawyers who “were not involved in the underlying matters that were the subject of the report.” He did not respond to questions about why the office was declining to provide their names.

In response to an open records request by Hearst Newspapers, the attorney general’s office said it cannot calculate the cost to taxpayers of the 10-month internal investigation because the authors belong to the executive administration and do not keep timesheets. Lauren Downey, the agency’s public information coordinator, would not name the authors, saying the office did not have a list.

Under the General Appropriations Act, the state’s biennial budget, the office is required to “continue an accounting and billing system by which the costs of legal services provided to each agency may be determined.”

The internal report contains multiple references to Webster, including one instance in which Webster told the Travis County District Attorney’s office attorneys that he was conducting an investigation in an Oct. 8 email.

“General Paxton recently appointed me to be his First Assistant Attorney General,” he wrote. “One of my tasks is to collect our agency documents and other evidence to determine what has transpired internally with our agency … If you have any documents or email communications you are willing to release to me that would assist me in understanding what has transpired, I would appreciate it.”

Webster’s name also appears in annotations on various documents included in the report, and he is described at least five times in the report as someone asking questions of others at the agency or collecting information about whistleblower-related issues.

See here for the background. We’re not going to tell you who wrote this thing, we’re not going to tell you how much it cost to write it, and you’re just going to have to take our word on everything because we’ve established such a long track record of truthfulness and reliability. I think that about covers it.