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New Mexico sues its “abortion sanctuary cities”

Good.

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

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

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

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

[…]

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

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

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

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

More details here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The only criminal involved

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

HISD in TEA limbo

No one knows how long this might take.

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

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

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

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

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

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

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

[…]

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

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

Action may come soon, Tritico said.

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

[…]

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

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

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

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

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

The Chron drops a big Hotze story

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So how much money does Whitmire have available for his mayoral campaign?

It’s already a lot, and it could be a whole lot more.

Sen. John Whitmire

State Sen. John Whitmire is kicking off his mayoral campaign with a $10 million war chest, most of it drawn from the money he has amassed over decades in the Legislature.

The campaign balance dwarfs the resources of his opponents, but it could renew debate about how much of that money the city’s campaign finance laws allow him to use.

Whitmire’s first mayoral campaign finance report, filed Tuesday, shows $1.1 million in new donations between his formal campaign launch in November and the end of the year. The report’s staggering number, though, is the amount of cash he reports having on hand: about $10.1 million.

The sum makes him the overwhelming financial heavyweight in the race — no other candidate had more than $1 million on hand as of last summer. Other candidates, including former county clerk Chris Hollins, former city councilmember Amanda Edwards, and attorney Lee Kaplan, are expected to share more current numbers Tuesday, as well.

It is not yet clear how much of that money Whitmire will seek to spend. Sue Davis, a consultant for Whitmire, said the report shows the full balance of his campaign account, filed with both the state and the city. The campaign started earmarking money raised for the mayor’s race at the end of last year — the $1.1 million — which “has more than enough to start this year,” Davis said.

The move, though, may test the enforcement of an ordinance that was intended to limit how much money raised for non-city accounts can be used for city campaigns. The council members who introduced and passed the law in 2005 said it was meant to cap that amount at $10,000. It was intended to treat non-city accounts like any other political entity that seeks to support a city campaign: subject to a $10,000 cap on donations.

Former councilmember Gordon Quan, who spearheaded the ordinance, confirmed the intent behind the law in an email to the Chronicle last week. The law says candidates can use money raised for a non-city public office “in an amount not to exceed the maximum contribution that the candidate may accept from a single donor,” which is $5,000 for individuals and $10,000 for political groups.

In practice, though, the city has not enforced the ordinance that stringently. A decade later, in 2015, then-City Attorney Dave Feldman told candidates they could use the amount of money under the cap from each individual donor, rather than from the account as a whole.

That allowed then-State Rep. Sylvester Turner to use $900,000 from his legislative account to start his mayoral bid, which ultimately proved successful.

City Attorney Arturo Michel, who returned to City Hall in December 2020, was serving his first stint as the city’s top lawyer in 2005, when Council first passed the law. The legal department, under his leadership at the time, helped craft the ordinance.

Michel, though, suggested Tuesday that Feldman’s interpretation was sound in its reading of the law’s actual language.

Feldman’s “determination reflected the language used in the code when adopted and as exists now,” Michel said. That language is less supportive of the more stringent interpretation, he added.

“Texas law is clear that statements made by members of a legislative governing body are not evidence of collective intent of the body and do not override the language used in the law,” Michel said.

The law has not been thoroughly tested in court, and it is possible another candidate could seek a ruling limiting what Whitmire can spend from his Senate funds. No candidate publicly has suggested they will do so.

See here for the July finance reports; Whitmire had not yet filed a city report. There are as of Tuesday night a number of January reports available on the city’s campaign finance webpage – you know I’m looking for them – but none of the Mayoral candidates had them up there yet.

The story references a lawsuit filed by Chris Bell, who was a Mayoral candidate in 2015, to challenge the cash on hand total that Turner claimed. There was a separate federal lawsuit filed to challenge the city’s blackout period for fundraising – in those days, you couldn’t fundraise outside of an election year – and after the plaintiff won an injunction the city basically agreed with his position to strengthen their case against Bell, who eventually dropped his suit.

I think the city should enforce its laws, though I can’t say with complete confidence that they’d win in court if there is a challenge over this limitation. I don’t know if someone will file a complaint to stop Whitmire from using his entire treasury, but if I were advising Whitmire I’d suggest he go through the last five or ten years’ worth of reports, claim the money that would clearly be under the limit, and then dare anyone to sue him. He’d still end up with a ton of cash and a plausible claim to already be in compliance. We’ll see what happens.

So what’s the deal with that I-45 deal?

Still to be determined.

Houston, Harris County and the Texas Department of Transportation have an agreed path forward for rebuilding Interstate 45, and a lot of steps to get there.

Details big and small remain works in progress and a federal pause looms as the last big hurdle, for now, as officials move ahead after last month’s agreements.

“We are doing everything we can to move this project forward,” James Koch, director of transportation planning and development for TxDOT in Houston, told a North Houston Association luncheon on Wednesday.

The group, focused on economic development north of the city, is a vocal supporter of the widening project because of its potential to improve access to downtown and revitalize sagging areas along the I-45 freeway corridor.

To get some of those benefits, officials first have to iron out technical issue that not only affect the $10 billion rebuild of I-45 and the downtown freeway system, but numerous other mobility projects that cross it. Among them:

  • How TxDOT will rebuild Interstate 69 beneath Metropolitan Transit Authority’s Red Line light rail in Midtown while keeping the trains moving as much as possible.
  • Addressing changes sought by the Harris County Flood Control District that improve drainage for neighborhoods north and south of the Loop 610 interchange with I-45.
  • Design specifics of the future I-45 interchange with Interstate 10 that accommodate Metro’s planned Inner Katy bus rapid transit line along I-10 and proposed managed lanes access to downtown streets.
  • Adding sidewalks and bike amenities to areas where TxDOT has committed to trying to reduce the number of properties it will take.
  • Determining how a proposed downtown connection for the Hardy Toll Road will enter the area near Buffalo Bayou and cross a remade I-10.
  • Reconsidering how the project will incorporate Metro’s plans for bus rapid transit into its overall design.

“I think the next steps are sitting down in a room and working out all the details,” Metro board Chairman Sanjay Ramabhadran said of the work ahead.

Those details are not the only obstacles to construction, which officials will consider moving from 2024 to 2027 later this month in the region’s four-year transportation plan. TxDOT still must acquire some property, Koch said, and the pending Federal Highway Administration review that the local agreements do not affect must be resolved.

[…]

Hailed by elected officials as a breakthrough that salvaged a desperately-needed freeway rebuild, the deals surprised critics of the initial design. They noted many of the details give TxDOT room to renege while others fall short of the changes some neighborhood advocates had sought.

In a statement, Air Alliance Houston said the agreements “will do very little to protect Houston communities from the harms posed by this project,” specifically related to air pollution caused by the larger freeway in many neighborhoods around the central business district.

“It would be difficult to overstate our disappointment in the contents of these two (agreements), the closed-door manner in which they were created and signed, the lack of sufficient time for the public to read and respond to them, and the tone with which they were presented,” the group said.

Officials have defended the deals as the best way to change the project but still maintain the benefits that will come with it, including faster and safer commutes and the creation of two-way managed lanes that can improve transit in the I-45 corridor.

See here for the background. I believe that’s the first I’ve heard of the construction timeline being pushed back to 2027, which is a modest benefit no matter what else happens. We still need to know what all these details are, and I definitely agree that there is room for TxDOT to weasel out on a lot of promises. But I have always believed that one way or another this was going to happen, so any improvements or modifications to the original plan have to be considered with that in mind. Metro is probably as eager as anyone to get this going, as their MetroNext plans depend on various items in the I-45 rebuild. I hope that as long as things are still being worked out there’s still room to get assurances and confirmations about the things that Metro has agreed to.

Paxton sued over his deranged ballot access opinion

Good.

The only criminal involved

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

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

[…]

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

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

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

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

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

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

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

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

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

Uvalde DA gets DPS report on school shooting

We’re still a long way from seeing it for ourselves.

State police investigating the Uvalde school shooting have sent an initial report to prosecutors, according to a spokesperson for the Texas Department of Public Safety.

The Texas Rangers, a division of DPS, are conducting a criminal investigation into the shooting at Robb Elementary, where a gunman killed 19 children and two teachers in May. Hundreds of law enforcement officers who responded to the school, including those from DPS, did not confront the shooter for more than an hour after initial reports of shots fired.

The district attorney in Uvalde, Christina Mitchell, said the Rangers’ investigation remains open and that she did not anticipate a complete report for at least a few more months. Neither she nor DPS have publicly released the initial report yet. The investigation is expected to eventually include a review about whether any victims who died may have survived had police intervened sooner

DPS Director Steve McCraw said last fall that the Rangers’ investigation would be completed by the end of December.

“The initial report is what the Director was referring to and that was made available to the DA’s team last week,” agency spokesperson Travis Considine wrote in an email this week.

In previous statements, Mitchell said that she needs a completed investigation to make any decisions about potential charges, including against any of the nearly 400 officers whose actions and inactions have been under scrutiny since the massacre, which was the deadliest school shooting in Texas history.

“I don’t expect to receive the complete investigation report until the spring, at the earliest,” Mitchell said in an email last week. “It is not uncommon for an investigation of this magnitude to take over a year.”

[…]

At least one part of the investigation has not yet been completed.

medical analysis of victims’ injuries — led by Dr. Mark Escott, medical director for the Texas Department of Public Safety and chief medical officer for the city of Austin — to “determine whether there may have been opportunities to save lives had emergency medical care been provided sooner” remained underway as of Tuesday, a city of Austin spokesperson said.

That review began in earnest around November. Autopsies of the victims, key for the examination, were completed a few weeks ago. The results of the autopsies have since been sealed, according to local news reports.

Considine, the DPS spokesperson, said the overall investigation is considered ongoing — and the report is initial rather than final — because “Rangers may receive assignments from special prosecutors for some time, which would lead to additional information.”

See here, here, and here for some background. So far two DPS officers have been forced out of their jobs as a result of DPS’ internal investigation. One chose to retire and the other was fired; the latter has filed an appeal. Yes, having the Rangers investigate DPS, for whom they work, is at best a weird idea and sure looks like a conflict of interest, but here we are anyway. We missed our chance for political accountability on this, so we’ll get what we get when we get it.

SCOTx removes injunction blocking TEA takeover of HISD

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It’s re-redistricting time

More amusing than alarming, with a bit of annoying as well.

The Texas Senate voted unanimously on Wednesday to again take up the decennial process of redrawing the boundaries of the state’s political districts a year and a half after the Legislature completed the process and yielded new districts. Those newly drawn districts increased the Republican majorities in both the Senate and the House and reduced the voting strength of voters of color.

The redistricting process this year is mostly procedural and is not expected to produce very different results.

Sen. Joan Huffman, R-Houston, said she was taking the step “out of an abundance of caution” to ensure that Legislature had met its constitutional requirement to apportion districts in the first regular session after the federal census, which is done every 10 years. Because of the pandemic, census numbers were not released until after the end of the last regularly scheduled legislative session on May 31, 2021. Redistricted maps were passed in a subsequent special session that year.

Two Democratic lawmakers, Sens. Roland Gutierrez of Antonio and Sarah Eckhardt of Austin sued, saying that violated the Texas Constitution because the census numbers weren’t received until Aug. 12, 2021. That would make the current legislative session, which kicked off on Tuesday, the first regular session since the release of those numbers.

Eckhardt said the Senate’s decision to take up the issue again proves she and Gutierrez were right on the law, but she said she didn’t expect much change in the maps drawn by the state in 2021.

“I think this will be a check-the-box exercise,” she said. “I would have liked to have seen in the first go-around a substantive discussion and taking the input of constituencies into account.”

[…]

Huffman, who led the redistricting committee in the 2021 legislative session and will again lead its efforts this year, said the procedure would follow similar rules to those applied last session and would create an opportunity for “regional hearings” to be held in the Capitol that will be streamed on the internet for the public across the state. The public will also have an avenue to testify in those hearings virtually. Those hearings will be held between Jan. 25 and 28.

See here, here, and here for some background. While this resolution is only for the Senate, the same exercise will need to occur for the House and the SBOE as well; Congressional redistricting is exempt because the constitutional provision only applied to state offices. I think Sen. Eckhardt is correct in her assessment, and it’s a shame that the State Supreme Court did not see it the same way, but here we are. I presume the federal litigation over Texas’ maps and processes will be unaffected by this – the legal issue in question was one of state law. As noted I don’t expect much to change, but anytime there is redistricting there is the potential for shenanigans, so stay alert. Reform Austin.

HD135 election contest dismissed

From the inbox:

This week, Speaker of the Texas House Dade Phelan dismissed the election contest filed by Mike May, the candidate who lost to Representative Jon Rosenthal in the 2022 election for house district 135. The case was dismissed because May failed to timely pay the security of costs required by Texas law.

“This quick dismissal shows these election contests are largely about political posturing and undermining our democratic processes,” said Harris County Attorney Christian D. Menefee. “I thank Speaker Phelan and Representative Morgan Meyer for upholding the law and ensuring the will of the voters stands.”

Under Texas law, the Texas House of Representatives presided over this contest because it was filed by a candidate for that body. Unfortunately, more than 20 other election contests are still pending in Harris County—most of those races had greater vote margins than May’s. Those cases are expected to proceed over the next few months.

See here for the background. This one was particularly unserious, and the resolution shows how weak it was. Here’s County Attorney Menefee’s Twitter post, with a copy of the letter to May from Speaker Phelan:

My post about the HD135 election contest ran on December 3, so it was filed at least one day before then. The deadline for paying the required fee – I have no idea how much, but if there was even a sliver of a chance this was for real, this guy would have had no trouble getting some fat cat to pay for it as needed – was December 9. Maybe he could have gotten an extension if he’d asked and had some reason for it, but practically speaking this thing has been dead for a month.

This has no effect on the other challenges filed by other losing losers, as legislative contests are heard in the House while these others will be argued in a courtroom. They aren’t any more valid, they’re just in a different venue. From the County Attorney’s press release, they may take awhile to be resolved. I will of course keep an eye on them. The Trib, whose story published after I drafted this and which mostly recapitulates what I’ve got here, has more.

SCOTx to decide if ERCOT can be sued

Big decision to come.

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

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

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

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

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

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

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

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

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

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

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

It’s going to be a brutal legislative session for LGBTQ folks in Texas

I really wish this weren’t the case, but it is. It’s going to be bad.

Two bills that would ban classroom instruction about sexual orientation and gender identity in Texas public schools before certain grade levels are poised to receive top Republican backing in this year’s legislative session. But critics warn that the legislation could further marginalize LGBTQ students and families while exposing teachers to potential legal threats.

The two bills — authored by Reps. Steve Toth, R-The Woodlands, and Jared Patterson, R-Frisco — closely resemble legislation out of Florida that critics dubbed the “Don’t Say Gay” lawHouse Bill 631 and House Bill 1155 are among a flurry of anti-LGBTQ legislation awaiting lawmakers when they return to the Capitol on Tuesday.

Florida’s law prohibits schools from teaching about sexual orientation or gender identity from kindergarten through third grade. Both Texas bills mirror such a ban. Toth’s HB 631 would expand the restriction until fifth grade. Patterson’s HB 1155 would extend it to eighth grade.

Their proposals would also prohibit lessons on sexuality and gender identity at any grade level if they are “not age appropriate or developmentally appropriate.” Patterson’s bill doesn’t define what is appropriate for various age groups. Toth’s bill requires the lessons to align with state standards but doesn’t specify which standards.

Like Florida’s law, the two Texas bills don’t explicitly ban the use of the word “gay” in schools. The bills’ authors also maintain that the legislation would protect “parental rights” by allowing parents to more directly control what their children learn in school, including the existence of different sexual orientations and gender identities.

“Parental rights are paramount to the safety and well-being of a child,” Patterson said in a Jan. 3 tweet introducing his bill. “Therefore, I filed HB 1155 to ensure no school teaches radical gender ideology to any child from K-8th grade, and where parents must review and sign off on any health-related services.”

Lt. Gov. Dan Patrick has signaled that he would support passing a Texas version of the Florida law — even before these bills were filed.

“I will make this law a top priority in the next session,” he said in a campaign email last April.

Critics of the legislation argue that the bills’ vague nature would suppress discussion related to LGBTQ issues and representation.

“The reality is that everybody has a gender identity and sexual orientation; avoiding those conversations is incredibly difficult,” Adri Pérez, an organizing director with Texas Freedom Network, told The Texas Tribune. “What it becomes is a tool to be leveraged specifically against LGBTQIA+ people, because what stands out is not the people who fit in but the people who are being specifically targeted and attacked as being different.”

[…]

Chloe Kempf and Brian Klosterboer, attorneys with the American Civil Liberties Union of Texas, said the bills could pose explicit risks to teachers and school districts in the form of lawsuits from parents who believe they’re not following the law.

Toth’s bill outlines a mechanism for parents to sue school districts for violating his proposals, which includes the parental notification portion of that bill. Experts say that part of these bills could require teachers to potentially out their students, and parents could sue districts if teachers don’t comply. School districts would be saddled with the cost of those lawsuits, experts say.

More broadly, Kempf said, the bills would pose risks to schools and educators in the form of potential ultra vires claims, which enable citizens to sue public officials who violate state laws. Although it’s not clear if these types of lawsuits would be successful, Klosterboer said, the larger impact is more confusion and headaches for schools.

“When a law is vague, it allows for discriminatory and targeted enforcement. And it also creates a very hostile and chilling atmosphere where people … go out of their way to self-censor,” Kempf said.

The bills’ vague language could also present challenges for schools trying to protect teachers from potential lawsuits.

“[Schools] might not even know what to tell teachers and staff how to actually protect themselves and protect the school district,” Klosterboer said.

Klosterboer added that it seems “very likely” that if Gov. Greg Abbott signs one of the bills into law, it would invite legal challenges.

[…]

Ultimately, LGBTQ advocates argue that these legislative actions are just another attack on an already marginalized population. As of last week, Texas Republican lawmakers have already filed 35 anti-LGBTQ bills for the 2023 session, far outnumbering the number of such bills that were filed ahead of the 2021 session, according to [Ricardo Martinez, CEO of Equality Texas].

“The legislation is meant to stigmatize LGBTQ people, isolate LGBTQ kids, and make teachers fearful of providing safe and inclusive classrooms,” he said.

There is ongoing litigation over Florida’s “don’t say gay” law. It will eventually be decided by SCOTUS. So yeah, that’s going great, too.

I would like to say something encouraging here. For sure, plenty of smart and passionate and dedicated people will do everything they can to fight these terrible bills, and you should do everything you can to help them. But the reality is that the Republicans have the numbers. They can pass whatever bills they want. This is what they want to do, and they believe they have a mandate after the 2022 election. They’re not going to stop until they’re voted out. Again, I wish I could tell you something else, but I can’t. It’s going to be a very rough six months. The Observer has more.

Additional Losing Candidates File Election Contests in Harris County

That’s the subject of the following email I got in my inbox yesterday, and I can’t do any better than that for a post title.

Additional Losing Candidates File Election Contests in Harris County

Houston, Texas – Today, several losing Republican candidates filed election contests to void the more than 1 million votes cast in Harris County’s November 2022 election. Thus far, the Harris County Attorney’s Office has identified filings by (and we expect more filings to be made today):

  • Mark Montgomery, former candidate for Harris County Criminal Court at Law No. 6 (lost to Judge Kelley Andrews)
  • Matthew Dexter, former candidate for Harris County Criminal Court at Law No. 12 (lost to Judge Genesis Draper)
  • Brian Staley, former candidate for Harris County Civil County Court at Law No. 4. (lost to Judge Manpreet Monica Singh)
  • Mark Goldberg, former candidate for Harris County Criminal Court at Law No. 8 (lost to Judge Erika Ramirez)
  • Bruce Bain, former candidate for the 269th District Court (lost to Judge Cory Sepolio)
  • Michelle Fraga, former candidate for the 281st District Court (lost to Judge Christine Weems)
  • Elizabeth Buss, former candidate for the Harris County Criminal Court at Law No. 5 (lost to Judge David Fleischer)
  • Chris Daniel, former candidate for Harris County District Clerk (lost to Marilyn Burgess)

These filings are in addition to previously announced contests by:

  • Erin Lunceford, former candidate for the 189th District Court (lost to Judge Tamika Craft)
  • Tami Pierce, former candidate for the 180th District Court (lost to Judge DaSean Jones)
  • Alexandra Mealer, former candidate for Harris County Judge (lost to Judge Lina Hidalgo)
  • Mike May, former candidate for State Representative District 135 (lost to Representative Jon Rosenthal)

Below is the statement from the County Attorney released this morning:

“This is a shameful attempt by a group of losing candidates who couldn’t win the hearts and minds of Harris County voters and are now throwing nonsensical legal theories at the wall to see what sticks. Each of them should be deeply embarrassed and these claims should not be taken seriously by the public,” said Harris County Attorney Christian D. Menefee. “These losing candidates are finally laying bare what we all know to be true – for them, it’s not about improving elections or making sure our elections are secure, it’s about playing games with our democratic systems and refusing to accept the will of the voters.”

The contests being filed request that the more than one million votes cast in Harris County be voided and the county hold another election for the races being challenged (e.g., Harris County Judge, 189th District Court, 180th District Court, etc.).

“These election contests are frivolous attempts to overturn the votes of more than a million residents in the third largest county in the country. The county will now have to spend substantial resources handling these contests, time that could instead be spent serving the people of Harris County,” added County Attorney Menefee. “Voters have moved on. Public servants have moved on. These losing candidates should move on too.”

See here and here for the background. The judge in the Lunceford contest was assigned on December 13, I don’t know what has happened since then. I do know that at least one more loser has filed a loser’s contest, but I don’t care to give any of this any more validity. You can read the Chron story here and their explainer about election contests here. I think the Trib story contains the most relevant bit of information:

The Election Day problems were unlikely to have been substantial enough to swing the results of the Harris County judge’s race, according to Bob Stein, a political science professor at Rice University.

Nearly 70% of voters cast their ballots during the early voting period, but Mealer only cites issues on Election Day itself.

“I’m extremely doubtful that there is a legitimate legal challenge here,” Stein said. “It’s not like voters were told they couldn’t vote or that they had to go home. They were discouraged because the lines were long, or because they were told they’d have to wait.”

Those challenges do not amount to voter suppression, Stein said, but merely suggest that Harris County should operate fewer, better-resourced polling locations.

To make its case, Mealer’s legal team will have to find evidence that more than 18,000 voters were unable to cast ballots on Election Day, and that all of those voters planned to vote for Mealer, Stein said.

And every voter who might have been discouraged by issues at one location could have gone to another one, which would have been at most a couple of minutes away by car. Even at the highest end of the estimate of locations that had issues, more than 90% of them did not. We have multiple locations at which anyone can vote precisely as a hedge against problems at any one specific location. In the old days, when you had to vote at your precinct location, you really were screwed. Now you can just go somewhere else. Even in the case of the loser who lost to DaSean Jones by 449 votes, it’s extremely hard to imagine there could have been enough people who encountered problems and could not vote anywhere else and would have voted for the loser to make a difference. This is all bullshit and should be seen as such. Campos and the Texas Signal have more.

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

Infuriating but expected.

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

Bell County to sue over Killeen’s marijuana ordinance

Something like this was surely inevitable.

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

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

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

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

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

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

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

It is not clear when the lawsuit will be filed.

“We will plan accordingly,” Garza said.

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

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

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

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

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

Katy ISD challenged over at large districts

This was from before Christmas but I didn’t have a chance to write about it until now.

The NAACP Legal Defense and Educational Fund sent a letter Tuesday to Katy ISD accusing the district of disenfranchising Black and Latino voters by adhering to an at-large voting system in violation of federal civil rights law.

The letter, addressed to Katy ISD board of trustees President Greg Schulte, says the at-large system — in which board members are elected to represent the entire district, by voters across the entire district — “dilutes the votes of Katy ISD’s voters of color and may violate the Voting Rights Act because it prevents Black and Latinx voters from electing their preferred candidates to the Board of Trustees and from participating in the electoral process on an equal footing.”

The Legal Defense and Educational Fund, or LDF, filed the letter after being approached by a group of Katy ISD parents concerned with the lack of diversity on the district’s seven-member board. Currently, the letter says, all seven trustees “reside in a concentrated area of the district south of Interstate 10 and do not reflect the geographic or racial and ethnic diversity of the district,” where Black and Latino children make up nearly half of the student body, according to the Texas Tribune.

The letter was first reported by NBC News.

Cameron Campbell, a former Democratic candidate for state legislature and a Katy ISD parent, said debates over book bans and other “microagressions” and “dog whistles” led the parents group to think critically about the makeup of the school board and who it serves.

“We can all agree on keeping our kids safe, learning and prospering, but if there’s not equal representation, it is absolutely impossible for our school boards to serve our kids adequately,” Campbell said. “I’m a proud Katy ISD parent and the teachers do a fantastic job, but the school board is broken and it’s an embarrassment.”

You can see a copy of the letter and a proposed district map at that NBC News tweet. The district had no comment in the story and I didn’t see any followup news since this ran in the Chron, but there are some more details given by the Katy Times.

According to its website, Katy ISD has an enrollment of 92,914 students as of Dec. 26. Here is a breakdown of students by ethnicity:

Asian: 15,542, or 16.7%.
Black: 13,204, or 14.2%.
Hispanic, 33,766, or 36.3%.
Native American: 208, or 0.2%.
Pacific Islander: 108, or 0.1%.
Two or more races: 3,963, or 4.3%.
White: 26,123, or 28.1%.

Much of the growth is taking place in the north and northwest areas of the district. The district’s northernmost high school, Paetow, 23111 Stockdick School Road, opened in 2017. It has a student population breakdown that is 49% Hispanic, 23% Asian, 17% White, 6% Black, and 3% two or more races, according to the district.

[NAACP assistant counsel Antonio Ingram II] provided an example figure that illustrated how a single-district representation map might look. Under this plan, Ingram wrote that four of the districts would be majority-minority districts.

Ingram wrote that the example was one of several versions of a seven-single-member school board map that can be drawn with multiple majority-Black and Latinx districts in northern Katy.

While most school districts in Texas have at-large representation exclusively, not all of them do. Richardson ISD, near Dallas, recently adopted single-member districts. According to its website, five of the seven trustees on the Richardson ISD board are elected from single-member districts. The other two trustees are elected at-large.

The single-member district issue has been raised in at least one previous Katy ISD trustee campaign. Local attorney Scott Martin called for single-member districts in an unsuccessful 2018 trustee campaign.

Not immediately clear now is whether the NAACP is approaching only Katy ISD for such changes, or whether it is approaching other school districts in a similar fashion.

But other options are available to trustees, Ingram wrote. Among these are:

Cumulative voting in at-large elections.
Requirements for more diverse representation on the board, such as a requirement that all board members reside in different school attendance zones. According to the map Ingram provided, all seven trustees live south of Interstate 10.
Moving the election date to November, when other significant races are on the ballot, therefore increasing voter turnout.

“Whatever method or methods the Katy ISD Board of Trustees chooses to ensure a more fair and equitable electoral process for choosing its members, we urge the board to act with all deliberate speed, as failure to act could expose the Katy ISD to liability under the VRA (Voting Rights Act),” Ingram wrote.

This caught my eye for a number of reasons, including of course because of the LULAC lawsuit over Houston City Council at large districts. There’s no indication at this time that the NAACP LDF might file a lawsuit, but that is certainly a possible outcome if there’s no movement from Katy ISD. A similar lawsuit was filed against Spring Branch ISD in 2021. There hasn’t been much news about that since then – the law firm representing Spring Branch ISD withdrew from the case a few months after the suit was filed, and there’s a Fairly comprehensive update on the SBISD website, the short version of which is that there was not one but two changes in who the presiding judge was and as a result there hasn’t been a hearing yet – one for October was cancelled – and nothing has been set yet. Federal lawsuits move at their own pace, y’all.

Anyway. I’ll keep an eye on this. I don’t have a lot of optimism about any use of the Voting Rights Act these days, but you never know. Katy ISD will have its next election this May, and the filing deadline is January 18.

Mayor Turner’s final year

The big local political story, besides whatever violence the Legislature commits to Houston and/or Harris County, will be the 2023 Mayor’s race. The incumbent still has a full year to go, though, and he has his plans for what he wants to do with his remaining time in office.

Mayor Sylvester Turner

Mayor Sylvester Turner plans to focus his final year in office on moving existing projects across the finish line, with an emphasis on housing, crime, parks and community facilities.

Turner said he wants to accomplish his administration’s goal of helping to build 10,000 new housing units in his second term, while also continuing the city’s progress since 2012 in reducing homelessness. His “One Safe Houston” plan to address violent crime has several elements that are funded through the rest of his tenure, including expanded crisis response teams. And there are renovations underway in 22 community parks that he wants to see through before his term ends in January 2024.

“It’s about finishing up many of the priorities and projects that are currently on the books,” said Turner, who revealed recently that he worked this summer while battling a cancer diagnosis. He now is cancer-free.

Next year, though, could force confrontations with structural issues at City Hall that Turner is satisfied to leave to his successor, such as a potential adjustment to the city’s revenue cap, and the resolution of a yearslong contract stalemate with firefighters that has spanned nearly his full tenure, and which now rests with the Supreme Court.

[…]

Turner has said a garbage fee — Houston is the only city in Texas without one — is necessary to sustain Solid Waste operations, though he is not likely to take that on in his final year. He likewise has argued an adjustment to the revenue cap is necessary. The most recent discussion of the cap came in October, after it forced the city’s eighth rate cut in nine years. At-Large Council Member Michael Kubosh wondered aloud how the city could afford its growing police and fire budgets with those restraints. Turner said he would present an adjustment to the cap if council desired it.

Turner said that adjustment proposal still is in the works but acknowledged he is not “100 percent on it.”

“Some of the these things need to be left for the next mayor,” he said, and the ruling in the firefighters dispute could affect his calculus, as well. “A modification of the revenue cap may not be adequate to address it. In that case, I won’t present it. I’ll leave it up to the next mayor to address how he or she, and the people in this city, should deal with it.”

Turner argues he has done his part tackling intractable problems facing the city. The 2017 pension reforms he ushered in have slashed the city’s daunting debt in that arena from a $8 billion liability to about $1.5 billion. The issue that once dominated city government and politics now is mostly an afterthought. The city’s liability for retirement benefits likewise was expected to grow to $9 billion over 30 years, but cuts Turner implemented are expected to reduce that at least in half.

“I can’t fix everything, but we’ve fixed a whole lot,” Turner said.

Turner and other elected leaders in the city long have said the cap strains the city’s finances and hinders its ability to provide adequate resources to residents. It has cost the city about $1.5 billion in revenue since it first hit the cap in 2015. In that time, it has saved the owner of the median Houston home about $946, or about $105 per year.

I’m not sure I have any hope left about raising the revenue cap. If there actually is some action on it, the most likely scenario is what we have done before, which is to carve out a limited exception for public safety spending. That’s more likely to pass a public vote, and less likely to get cracked down on by the Legislature. It’s at best a band-aid, if it even happens, but you know nothing significant will ever happen until we have a different state government, and we know that ain’t happening for at least another four years.

As for the firefighters, there are two issues that need to be resolved by the courts before anything gets left as a mess for the next Mayor, and those are the pay parity lawsuit and the HFD collective bargaining lawsuit, both of which just had hearings before SCOTx. I have no prediction for either – we may or may not get rulings on them before the November election, but if we do there will be a big new issue for the candidates to talk about. Modifying the revenue cap in some form would leave the next Mayor a bit of leeway in how they try to resolve whatever they need to resolve with these issues. I don’t need more reasons to support modifying the stupid revenue cap, but other people do, so there you have it.

As for the long-discussed trash fee, I support the idea as long as the funds are used to really improve solid waste collection in the city. There’s plenty of innovation out there, but just making sure everything gets picked up in a timely fashion, which is a labor and equipment issue at its core, is the first priority. I think this has a better chance of passing this year than in the future just because some number of people who won’t be facing re-election can vote for it, but we’ll see. Just have a productive last year in office, that’s all I ask.

You are now free to busk in Houston

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

Photograph: Linda Nylind/The Guardian

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

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

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

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

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

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

[…]

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

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

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

Wingnut Trump judge issues his anti-birth control ruling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Agreement reached on I-45 expansion plans

I remain skeptical, but we’ll see.

The bottleneck of design differences that has divided officials about remaking Interstate 45 north of downtown Houston is easing, officials said Monday, clearing the way for construction on the $10 billion project, perhaps in less than two years.

“There is no perfect design,” Houston Mayor Sylvester Turner said. “On balance, with the improvements … I think you have an excellent project that will move forward and move the greater good.”

The agreement outlines plans for widening the freeway by adding two managed lanes in each direction from downtown Houston north to Beltway 8, along with various frontage road and interchange alterations.

“We are ready to move forward together,” said Texas Transportation Commissioner Laura Ryan.

After spending months at loggerheads, but working on some consensus, the Texas Department of Transportation committed to a handful of concessions, such as increasing the money it will pay the Houston Housing Authority for relocation and development of affordable housing, and assurances to design the project as much within the current freeway footprint as possible. The project also connects to trails for running and biking, adds air monitoring in certain areas, adds features aimed at encouraging transit use and commits to stormwater design changes sought by the Harris County Flood Control District.

“Not all the things we wanted materialized, but that is compromise,” said Harris County Pct. 2 Commissioner Adrian Garcia.

The agreement announced Monday does not remove the pause the Federal Highway Administration placed on the project in March 2021. But with blessing of local, state and federal elected officials, it is likely TxDOT and the FHWA could come to a separate agreement and work could proceed, people involved in the deal said.

[…]

The agreements are a rare case of a major Texas highway project receiving major changes, prompted by community opposition, after officials had essentially greenlit its construction. The deals, however, also give TxDOT room to consider alternatives that reduce the number of homes and businesses displaced, but also do not hold them to any specific reductions.

“We expect TxDOT to uphold its end of this historic agreement, and not only to evaluate the impacts over the next year but to agree to and fund real solutions that address concerns about displacement, pollution, flooding and impacts on the public transportation network,” said Harris County Pct. 1 Commissioner Rodney Ellis.

The difference in visions has dogged the project for more than two years, but progress on remaking the freeway hit two large potholes in March 2021, after critics of the widening convinced some local officials to step in and federal highway officials paused work. Around the same time, Harris County sued TxDOT, saying the designs did not adequately address the impacts of noise and pollution in some communities, notably the North Side and Independence Heights.

In the roughly 20 months since, officials chipped away at the differences, postponing action on the county’s lawsuit and awaiting the federal review, while exploring what changes TxDOT could make to appease concerns. In the interim, Harris County Judge Lina Hidalgo and Garcia, who both were outspoken about the need for changes to the design, were reelected.

The two new agreements, one between TxDOT and the city and another between TxDOT and Harris County, specify the commitments both sides are making. Turner signed the city’s agreement Monday, after it was signed by TxDOT Executive Director Marc Williams. The county’s agreement can only be approved after a Commissioners’ Court meeting, scheduled for Thursday. Approval of the deal would automatically trigger a request by county officials drop the lawsuit against TxDOT.

Most of the new details are similar to requests Turner made in August 2021, and correspond with requests county officials raised more than a year ago, which state highway officials said they could not approve because they locked TxDOT into commitments on side ventures that were not included in the project.

Opponents of TxDOT’s design, finalized in 2019, said they needed to review specifics of the two agreements, but remained opposed to some of the fundamental features included in the plans.

“TxDOT has yet to adequately respond to community concerns about induced demand — the phenomenon by which wider highways make traffic worse,” the group Stop TxDOT I-45 said in a statement.

“We want a project that does not displace, and we know that wide freeways do not relieve traffic,” the group said. “We are excited to remain an active partner in this planning and development process.”

The city’s press release is here. On the one hand, I have faith that local political leaders who have been vocal in their opposition to TxDOT’s previous plans have done their best to get as good a deal as they can. They couldn’t hold out forever – there’s a lot of pressure to make I-45 renovation and expansion happen – and no one gets everything they want in a negotiation. If I trusted them before I have no reason not to trust them now. That doesn’t mean I’ll agree with every decision they made, but I start out with the belief that they did their best to act in our interest.

On the other hand, I and others who live close to I-45 and will be directly affected by whatever does happen in some way – and let’s be clear, lots of people will be much more directly affected than I will – are under no obligation to like this agreement, no matter how reasonable it may be and no matter how unprecedented it may be for TxDOT to bend as much as they apparently did. I don’t care how long it takes some dude to drive into town from The Woodlands. I’m perfectly happy telling them all to take one of the commuter buses in, and if the service for that is inadequate to push for it to be improved. I have no interest in prioritizing those needs over anyone else’s. I appreciate that Mayor Turner, Congresswoman Jackson Lee, Judge Hidalgo, Commissioners Ellis and Garcia, County Attorney Menefee, and everyone I’m forgetting eventually had to say Yes to a sincere and meaningful counteroffer. I really do believe they did the best they could and that we’re overall in a much better place than when we started and that we worked hard for it. But I still don’t have to like it. I’ll try to learn to live with it. That’s the best I can do. CultureMap has more.

True the Vote keeps on contempting

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

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

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

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

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

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

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

We said they’d come for birth control next

And here they are.

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

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

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

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

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

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

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

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

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

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

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

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

Ken Paxton’s hatred of LGBTQ+ people continues unabated

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

The only criminal involved

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

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

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

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

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

[…]

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

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

[…]

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

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

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

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

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

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

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

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

Officials indicated that no such records existed.

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

[…]

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

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

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

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

Judge assigned to hear election loser contest

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

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

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

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

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

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

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

Gender affirming care is happening in Dallas

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

Robert Glaser

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

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

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

FISCAL IMPACT
As discussed in closed session.

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

“Heartbeat” lawsuit against doctor dismissed

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

And now we have a judicial loser contesting the election

The Republicans did warn us they’d be sore losers.

Republican judicial candidate Erin Lunceford filed a petition Wednesday seeking a new election in Harris County’s 189th judicial district court race after losing by 2,743 votes out of more than 1 million ballots cast.

Lunceford’s opponent, Democrat Tamika Craft, won the election by 0.26 percent of the vote.

The petition, which names Lunceford as the contestant and Craft as contestee, claims numerous violations of the Texas Election Code, including a failure to provide a sufficient amount of ballot paper to 25 polling locations.

Harris County Republican Party Chair Cindy Siegel indicated there could be more election contests to come.

“During the last month, we’ve had a lot of our candidates that were in very close races that have been talking to us wanting to know the information that we’ve accumulated and have reported,” Siegel said. “Several of them are considering election contests.”

Andy Taylor, general counsel for the Harris County GOP, is representing Lunceford.

Taylor accused Harris County Elections Administrator Cliff Tatum, who took over the office starting in August, of intentionally causing ballot paper shortages in Republican-leaning neighborhoods.

“If it was just mismanagement, it was just gross incompetence, wouldn’t one think that the lack of paper would apply equally and uniformly across the map, so that there would be roughly an equivalent number of Democratic stronghold precinct neighborhoods as well as Republican precinct stronghold neighborhoods?” Taylor said. “And, yet, that’s not the way it’s breaking.”

Taylor alleged 80 percent of polling places with paper shortages on Nov. 8 were in areas considered Republican strongholds.

“I want to send a message to the Harris County elections administrator,” Taylor said. “Mr. Tatum, your day of reckoning has just started.”

In a statement, Harris County Attorney Christian Menefee said his office will keep a close eye on Lunceford’s election contest.

“I’m disappointed to see another losing candidate challenging the results of their election. Judge Lunceford previously served on the bench, so I trust she understands the seriousness of asking a court to disregard the votes of over a million residents across Harris County,” Menefee said. “This case will focus on the details of every aspect of the November 8 election in Harris County. My office will be involved in the case every step of the way to ensure people’s votes are protected.”

The petition is filed in Harris County, but the case will be heard by a judge from outside the county, according to Menefee’s office.

So many things to say, so I’ll bullet-point it:

– This is different from the ridiculous election contest filed in HD135 by a candidate that lost by 15 points and over 6,000 votes. That one would be heard in the House by a House committee, if Speaker Phelan for some reason doesn’t toss it as a frivolous waste of time. This one will be heard in a courtroom.

– As a reminder and a general principle, never believe a word Andy Taylor says.

– To put it another way, good luck proving intent. Also, reports from the field on Election Day about paper issues were very much coming from Democratic sites. The Texas Organizing Project didn’t file its lawsuit to extend voting hours because of problems in The Villages and Cy-Fair.

– Random fact: In 2020, Democrat Jane Robinson lost her race for Chief Justice of the 14th Court of Appeals by 1,191 votes out over over 2.3 million cast, a margin of 0.06 percent of the vote. You know what she did? She conceded gracefully and went on with her life.

– Another reminder: There were 782 voting locations on Election Day, and you could vote at any of them. There were a half-dozen voting locations within walking distance of my house on Election Day. Anyone who ran into a problem at one location could have gone to another. By all accounts, there were maybe 20-25 sites that have paper issues. That left a mere 750 or so alternatives, including ones that would have been very close by.

– In other words, please find me the people who showed up to vote at a location that was having paper problems, and did not wait for them to be fixed, did not go to another location, did not come back later, and as a result did not vote. You really gonna claim that there were over two thousand of them, and all of them were going to vote for Erin Lunceford?

– Did I mention that the Republicans opposed the extension of voting hours in Harris County (and not in red-voting Bell County, which also had voting location issues), and also opposed the counting of provisional ballots cast by people who voted after 7 PM? As I said before, the obvious way to deal with delays in opening a given voting location is to push back the closing time for it. But the Republicans opposed that at every turn.

– Can you imagine what the Republican response to this would be if it were a Democrat complaining about voting location problems? You could have voted elsewhere! You could have voted early! It’s your own damn fault you didn’t vote! Look at how zealously they opposed all of the efforts to expand voting access in the pandemic, including the third week of early voting that Greg Abbott ordered. You’re immunocompromised and you want to vote by mail or from your car because you’re afraid of a deadly disease? Too bad!

– The remedy, if they somehow win on these laughable claims, would be to redo the entire damn election. To say the least, that is a massive, massive upending of the regular democratic order. The amount of evidence they’d need to provide to come close to justifying such an ask, I can’t even begin to comprehend.

– But really, this is all about making noise and trying to cast doubt on the election administrator’s office and government in general in Harris County. It’s just the Big Lie in a slightly sanitized package.

Beto tries again to get ridiculous defamation lawsuit dismissed

Hope he has better luck here.

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

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

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

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

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

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

[…]

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

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

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

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

We’ve been waiting for this.

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

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

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

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

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

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

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

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

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

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

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

Uvalde class action lawsuit over mass shooting officially filed

We’ve been waiting for this.

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

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

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

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

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

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

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

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

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

[…]

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

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

Perla Huerta added to migrants’ lawsuit against Ron DeSantis

Noted for the record.

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

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

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

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

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

[…]

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

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

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

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

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