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There are many variables affecting what might happen with abortion law in Texas

Another way to put this: What can Beto do as Governor with a Republican legislature to make abortion laws less bad in Texas?

Toward the end of a virtual campaign event last month, one of Beto O’Rourke’s supporters asked how he would fulfill a key pledge: overturning the Texas ban on abortion.

The Legislature is virtually certain to remain under Republican control next year, leaving O’Rourke with no clear path to restore abortion access if he were to defeat Gov. Greg Abbott in November. But the Democratic nominee insisted he could bring lawmakers around.

“The shockwaves that it will send through this state to have a proudly, boldly pro-choice Democrat win for the first time in 32 years … will give us the political capital, the leverage we need to make sure that we can restore protections for every single woman in Texas to make her own decisions about her own body,” O’Rourke said.

He would also use “the power of the governor’s veto to stop bad ideas that are coming down the pike already,” he said.

But the proposals that most animate O’Rourke’s base — abortion rights, gun restrictions, expanded voting access — would likely face stiff resistance from Republican lawmakers, many of whom will return to Austin with no desire to rescind laws they passed as recently as last year.

Under those conditions, O’Rourke’s ability to enact core parts of his agenda would require a near-impossible level of legislative savvy, and unsparing use of the governor’s limited tools to influence the lawmaking process, such as vetoing bills and budget line items, veterans of Texas politics say.

[…]

On paper, Texas governors have limited power to shape public policy, with no cabinet and less control over state agencies than most of their counterparts around the country.

In recent years, though, Abbott and his predecessor, Rick Perry, have expanded their sway through sheer longevity — each staying in office long enough to stock boards and commissions with allies. Abbott has also used disaster orders to bypass the Legislature and steer policy on border security, the state’s COVID response, Texas National Guard deployments, and more.

Governors can also influence how laws are interpreted and enforced, through their appointments to state boards and commissions and directives to state agencies via executive order.

But governors cannot fire even their own appointees, let alone those of former governors, meaning O’Rourke would be stuck with thousands of Abbott appointees until their terms expire.

He could appoint their replacements between legislative sessions without immediate oversight, though each appointee would eventually require approval from the Republican-majority Senate once the Legislature is in session.

O’Rourke’s most potent tool to influence the lawmaking process would likely be his power to veto laws and spending he opposes, which governors have historically wielded as a powerful bargaining chip. O’Rourke said he would use that power, if necessary, to nix policies like private school vouchers, which Abbott has supported.

“Being able to stop that is incredibly important,” O’Rourke said. “But it also affords the governor leverage, in a broader sense, to bring people to the table and to make sure that we find that common ground, we get to that consensus, and we make some progress.”

The veto argument is one I was making about Wendy Davis back in 2014, before some of the worst anti-abortion legislation was passed. It’s still salient today, though the context is now very different. At the very least, it would be a hard stop against the vengeance fantasies of sociopaths like Briscoe Cain.

I think we can safely put aside any ideas about Beto reaching across the aisle for bipartisan compromise legislation on almost anything. Not that he wouldn’t sincerely try, and he could lead with things that under other circumstances might have genuine bipartisan appeal, like improving broadband access or drought mitigation. I just don’t believe that Republicans will move an inch even on things they have championed in the past to give him a legislative victory – their primary voters will not stand for it. I’d love to be too cynical about this, but it’s very much a prove-me-wrong situation. There may be some opportunities in the budget, where he will have line item veto power and where a lot of sausage making goes on behind closed doors, but don’t look for anything bigger than that. At least one chamber will need to be Democratic-majority before anything like that could realistically happen.

The use of executive power is an interesting possibility, and one where recent history is of much better use than past history. Abbott and Perry have absolutely pushed the bounds on what a Texas Governor can do, though to be fair they have had a docile and largely submissive legislature and a mostly compliant Supreme Court abetting them, neither of which Beto would have. All of the contradictions and hypocrisies that will result when those institutions suddenly decide that maybe there should be some limits on executive power won’t mean much given how little that kind of thing engages the public. All that said, Beto should look for every opportunity to push the envelope. He has little to lose by doing so.

Now, to complicate my earlier assertions about bipartisan legislation and compromise, we do have one slim possible avenue for such a thing.

Republican state Sen. Robert Nichols of Jacksonville said Friday that he’d support a change to Texas’ abortion laws to allow victims of rape to legally obtain the procedure.

“If I get a chance to vote for an exception to rape, I will vote yes,” the East Texas senator said during a panel of Republican lawmakers at the 2022 Texas Tribune Festival. “I think instead of us telling women what to do, we should show our support for women of this state.”

Nichols is one of the first anti-abortion lawmakers to say he would support loosening the abortion laws when lawmakers meet in January.

[…]

Texas is competing against private companies who are willing to bus their employees out of state for “pregnancy care,” said Nichols. “And what are we doing?”

At the least, Nichols said, the state should provide a minimum of four weeks of paid maternity leave for state employees.

Nichols self-identifies as “pro-life” and has voted in favor of the state’s abortion laws, including the “fetal heartbeat” law that went into effect last September. The law prohibited most abortions after an ultrasound could detect cardiac activity in a embryo, about six weeks into a pregnancy. Nichols’ office did not immediately respond to questions about whether the senator would support any other exceptions to the abortion law, such as for incest.

I would point out that as an actual Senator, Nichols could author such a bill himself and perhaps even try to persuade his fellow Republicans to vote for it, including in the House, rather than wait for such a bill to magically appear before him. Crazy talk, I know, but it’s what I do. The question here, as above, is whether Nichols would still support such a bill even if it would then be sent to Governor O’Rourke for a signature, or whether that would be out of bounds as per the same politics I discussed above. My guess is the latter is more likely, but we’ll see. For what it’s worth, signing a bill that merely allowed for a rape exception to the current ban, without at least clarifying the “life and health of the mother” exception that is causing so much chaos and mayhem in the hospitals now would not be a clear win for Beto in my estimation. I believe it would garner at best grudging support from reproductive rights advocates, even if it was clearly the best we could get under the circumstances, just because it’s so incremental and would give some form of approval to that strict a legal regime. I could be wrong about that, I’m just saying that this stuff is more complicated than it looks and there are way too many variables to support making any kind of prediction. We’ll know a bit more after the election, but for now almost anything could happen. We need to do what we can to put ourselves in the best possible position to affect the outcome.

Ken Paxton keeps trying to kill the SAISD vaccine mandate

On brand, always on brand.

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

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

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

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

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

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

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

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

Good.

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

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

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

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

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

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

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

SCOTx maintains judicial bypass rules for abortion

Good news.

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

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

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

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

Still wondering about the existential future of Texas Central

I really hoped this would be a thing. If it isn’t, it’s a great wasted opportunity.

Ten years ago, a company calling itself Texas Central High-Speed Railway announced plans for a trailblazing bullet train that would whisk passengers between Dallas and Houston in 90 minutes. Company leaders exuded confidence that the trains would be running up to 205 miles per hour by 2020.

The potential for an American high-speed rail line captured the imagination of Texans and national train enthusiasts alike. At one point during an event celebrating the unbuilt high-speed rail line, then-Vice President Joe Biden told a Dallas crowd, “You’re going to lead this country into an entirely new era of transportation.”

But a decade on, there are still no new tracks between Dallas and Houston.

Through multiple business entities who often use some version of the Texas Central moniker, developers of the project spent years raising hundreds of millions of dollars for construction, fighting conservative lawmakers’ attempts to dampen their plans and buying land needed to lay the tracks. Perhaps the biggest battle, though, came from legal challenges to the company’s claims that state law allows it to forcibly purchase property when owners aren’t willing to voluntarily sell.

In June, the Texas Supreme Court settled the matter and handed the company what could be a watershed victory, ruling that Texas Central can use eminent domain for its high-profile project. By the time the court ruled, though, Texas Central’s board had reportedly disbanded and its CEO and president had resigned. The project’s original timeline had already gone off the rails (at one point the construction was slated to begin in 2017). And land acquisition seems to have all but stopped in the last two years, according to land records reviewed by The Texas Tribune.

A spokesperson for the company, who is employed by a consulting firm that handles Texas Central’s media requests, says the project is still in the works.

But the company and Becker have declined to answer specific questions about the leadership exodus, apparent slump in land acquisition, funding prospects and status of permits Texas Central would need to move forward. A federal transportation agency says it hasn’t had contact with the company in two years. The portion of Texas Central’s website that once listed executive leaders is now blank — as is the list of current job openings.

Texas Central’s relative silence on the recent developments has left supporters of the project, who would like to see two of the state’s largest economic engines more easily connected, in limbo. Opponents, who have long railed against the idea of a private company using eminent domain to seize Texans’ land, are cautiously hoping Texas Central won’t rebound.

Even if the company resurges, there remain major obstacles ahead to acquire land and finance an increasingly expensive project described as “shovel ready” as recently as 2020. The stakes of the high-speed rail project extend beyond the company and Texas. The 240 miles of relatively flat land between Dallas and Houston has long been heralded as the ideal location for what Texas Central and its supporters say could be the first leg of a national high-speed rail system that transforms the country.

There are few infrastructure projects in the country that can compare in size to the Texas rail line. A California high-speed rail project between Los Angeles and San Francisco also faces significant political, financial and legal hurdles. But Michael Bennon, the program manager at Stanford University’s ​​Global Infrastructure Policy Research Initiative, hangs a lot of hope on the Texas project given the relatively short distance, estimated frequency of travel and the landscape between the two cities.

“If you can’t do high-speed rail in that corridor, it’s hard to imagine it working anywhere else,” Bennon said.

There’s a lot more, so read the rest. This is not the first possible elegy to what might have been with TCR. I’m of the belief that nothing is truly dead until you see the body, but I’m not feeling very optimistic right now. The damn shame of it all is that this was a great idea, and it should have worked. Lots of factors combined to make it not work – again, if this is indeed the end, which I still hope it isn’t – and I have no idea what could make something else work in its place. Honestly, at this point I’m not sure I’d live to see whatever that might be, given the ponderously long times these things take, whether or not they ultimately go anywhere. All I can say is that I hope the reports of TCR’s death are exaggerated. But I don’t have much faith that they are.

Libertarians will remain on the ballot

Too bad, Republicans.

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

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

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

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

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

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

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

SCOTx advised to leave judicial bypass rules in place

This is a pleasant surprise.

An advisory committee to the Texas Supreme Court voted unanimously Friday to keep in place a legal procedure that allows minors to get a judge’s approval to have an abortion without the legally necessary parental consent.

[…]

Texas will ban nearly all abortions on Aug. 25 under a new law that was triggered by the high court’s decision. The law includes no exception for victims of rape or incest, but it does include an exception for pregnancies that risk death or “substantial impairment of a major bodily function.” The exception has spurred debate statewide, especially among doctors and hospital groups concerned that it is too vague and creates legal liability for them.

The subcommittee that reviewed the issue on Friday noted that the situations in which minors will be seeking abortions will be extremely limited, but could plausibly arise.

Legislative mandates subcommittee chair Jim Perdue said at the meeting Friday held in Fort Worth and livestreamed online that the decision was separate from the political debate over abortion. The legal procedure available to minors, known as judicial bypass, has never had to do with whether an abortion is proper or improper, he said, but rather whether a minor should be able to make the decision without parental consent.

Texas law already allows doctors to perform abortions during medical emergencies when there is “insufficient time” to provide parental notice. Perdue, echoing what lawyers who represent the minors in court had argued, said there may still be situations that are critical to the patient’s health but not necessarily urgent emergencies.

“You don’t need to be bleeding out actively to potentially have a situation where a woman under the age of 18 is pregnant and suffering a life-threatening condition,” Perdue said.

Blake Rocap, legal director for Jane’s Due Process, which offers legal representation to minors seeking judicial bypass, said the subcommittee memo “correctly identifies the continuing need for the bypass rules and makes appropriate recommendations to acknowledge the impending change in Texas law without adding new requirements or making substantive changes that would be outside the scope of the rules committee and the judicial branch.”

See here for the background – my apologies for the inconsistency in naming standards. These are just the committee’s recommendations, the Court still has to adopt them, so the possibility that this could go sideways remains. But so far so good. This was the best possible outcome. We should know soon whether it sticks.

GOP seeks to knock Libertarians off the ballot

They tried this in 2020 with no success, but might be better positioned this year.

Texas Republicans have filed a petition to knock 23 Libertarian candidates off the November ballot for not paying their filing fees.

On August 8, 23 Texas Republicans filed a petition of mandamus with the Supreme Court of Texas to remove their Libertarian Party of Texas (LPT) competitors from the November general election ballot.

Some high-profile Republicans on the petition include Lieutenant Gov. Dan Patrick, U.S. Reps. Pat Fallon (R-TX-4) and Troy E. Nehls (R-TX-22), and candidate for U.S. House District 15 Monica de la Cruz. The four face opposition from Libertarians Shanna Steele, John Simmons, Ross Lynn Leone, Jr., and Joseph Leblanc, respectively.

“In addition to filing an application for nomination by convention,” the petition reads, “Texas law requires a candidate for public office to either pay a filing fee or submit a signature petition in lieu of a filing fee.”

“Despite their knowledge of these requirements, candidates seeking public office as members of the Libertarian Party of Texas in the upcoming 2022 General Election deliberately refused to pay their required filing fees and also failed to file their required signature petitions in lieu of payment of their required filing fees.”

Before filing the petition, the Republicans confirmed with the Texas Secretary of State that the Libertarians had not paid their filing fees. The Libertarians had not done so, prompting the Republicans to petition the Supreme Court “to issue an emergency writ of mandamus” to force the Libertarians “to comply with their legal and ministerial obligation.”

Texas Republicans filed a similar suit against the LPT in August 2020 for failing to meet their certification requirements, which the state Supreme Court rejected for missing the deadline. But this year, the petition was filed before August 26, “the deadline of the 74th day before the November 8th election” to file such a complaint.

Also in August 2020, three Democratic campaigns won restraining orders against three Green Party candidates who failed to pay their filing fees and were subsequently removed from the ballot.

In the Republicans’ suit two years ago, the Texas Supreme Court ruled that the code has different rules for parties that choose candidates through conventions, like the Libertarian Party, and those that use primaries, like the Republican and Democratic Parties.

In 2019, House Bill 2504 was filed to require parties that nominate candidates with conventions to pay a filing fee to appear on the ballot. The fee ranges from $300 for a State Board of Education candidate to $3,750 for statewide office.

“Parties holding primary elections are subject to one set of rules, and other parties are subject to other sets of rules,” the court wrote. “These differences may seem to benefit or burden one class of parties or another, depending on the circumstances.”

See here for some background on the Republicans’ attempt in 2020 to knock Libertarians off the ballot. The Dems did succeed in getting a few Green Party candidates off the ballot that year, but others were later reinstated with a little help from Ken Paxton. Never were there stranger bedfellows.

There is also a lawsuit that is as far as I know still active over that bill requiring third parties to pay a primary fee. There was an appellate court ruling in September of 2020, right in the middle of all the candidate-booting efforts, that sort of lifted a restraining order that prevented the Secretary of State from enforcing that law, but the ruling was far more complex than just that. I honestly have no idea if the restraining order is still in place or not, but I suppose the Supreme Court will address that when it rules on the mandamus. I also have no idea if Dems are going to try similar action against Greens this year; if they are, time is running short for them. This is one of those rare times when you can expect a ruling in short order, because the ballots need to be finalized soon. Chuck Lindell has more.

Supreme Court to review parental consent bypass rules

Nothing good is likely to come of this.

The Texas Supreme Court is reconsidering rules that allow Texans under 18 to obtain abortions without parental consent in light of the state’s soon-to-take-effect abortion ban.

Chief Justice Nathan Hecht asked an advisory committee to make a recommendation on the matter in an Aug. 1 letter obtained by Hearst Newspapers, asking the committee to “conclude its work” at a meeting next week on Aug. 19.

A spokeswoman for the high court explained that the justices believe the new law, and a landmark June ruling from the U.S. Supreme Court overturning federal protections on abortion, have “raised questions about whether the parental-notification rules are still consistent with Texas law.”

“The court asked the advisory committee to study the issues raised in the referral letter and make recommendations, which it does almost any time rule changes are contemplated,” said the spokeswoman, Amy Starnes.

Current Texas rules require abortion patients under 18 to notify their parents when they are seeking an abortion and receive their permission. But the rules also allow the teen to seek permission from a judge instead.

The number of minors who have been able to access that legal process ground to a near-halt after Texas imposed its six-week abortion ban in September 2021 — in August, 20 minors were able to get their cases before judges, state data shows. By October, once the ban was in place, that number dwindled to just two.

Still, attorneys who represent the young “Jane Does,” named as such in court filings for confidentiality purposes, say there will still be a need for the process, known as judicial bypass, even once the trigger ban takes effect on Aug. 25.

Though the trigger ban includes no exception for rape or incest, it does include an exception for pregnancies that risk death or “substantial impairment of a major bodily function.” The exception has spurred debate statewide, especially among doctors and hospital groups concerned that it is too vague and creates legal liability for them.

[…]

Blake Rocap, legal director at Jane’s Due Process, a nonprofit that helps represent pregnant minors in Texas, said there will still be a need for the bypass process for children whose physicians determine their pregnancies qualify for that health exception.

“You can see a possibility where a minor patient may have a pregnancy that is causing their health to deteriorate, causing a lot of risk or is dangerous for them in the future,” Rocap said. “Let’s say they’re a really young victim of sexual assault or incest and their body is not able to handle a full-term pregnancy just because they’re not physically big enough … They would need a bypass.”

Rocap added that would be especially important in the case of minors in CPS or foster care who will always need bypass because under Texas law, the state is not allowed to consent to abortion.

Less than 1 percent of abortions, or 31, were performed in 2021 on patients 13 years old or younger, according to data collected by the state health department. A little over 2 percent involved patients under 18, including 226 patients between 14 and 15 years old and 807 between 16 and 17.

I guess I’m not sure what it is that has changed here from the perspective of the judicial bypass process. Abortion is now far more restricted than before for minors, but if a young person qualifies for an abortion under the health exception then I don’t see how the question of whether they need to notify their parents or can be approved by a judge to protect their personal safety is any different. All of this makes my skin crawl and is a reminder why parental notification laws were such a bad idea in the first place – the kind of person who doesn’t want to tell their parents they need an abortion probably has a good reason for that. I have less visceral distrust of the Texas Supreme Court right now than I do of the US Supreme Court, but I don’t have much trust in what they’re doing here. I hope to be proven wrong about that.

SAISD vaccine mandate upheld again

Also still on hold, but the state loses again at the appellate level.

A state appellate court upheld San Antonio Independent School District’s authority Wednesday to mandate its workers get vaccinated against COVID-19, almost a year after the district instituted the requirement for all staff to help stem the spread of the virus.

The 4th Court of Appeals on Wednesday denied Texas Attorney General Ken Paxton’s request to overturn a Bexar County judge’s decision not to grant the state a temporary injunction to block the staff vaccine mandate. Judge Mary Lou Alvarez of the 45th District Court issued that ruling in October, allowing SAISD to continue enforcing the mandate.

The court also ordered that the costs of the appeal be assessed against the state.

Paxton filed a lawsuit against SAISD in September, after first suing the district over the mandate in August because the vaccine had not been approved by the federal Food and Drug Administration. The August lawsuit was dropped after the FDA approved the Pfizer COVID-19 vaccine.

The lawsuit has wound its way through the state court system over the past year. Paxton’s office appealed Alvarez’s ruling to the 4th Court of Appeals and also requested the appellate court temporarily block the mandate while it considered Paxton’s appeal. The attorney general then requested the state Supreme Court step in and halt the mandate, which it did in mid-October.

The Texas Supreme Court’s ruling forced SAISD to stop enforcing the mandate while the 4th Court of Appeals considered the state’s appeal of the temporary injunction that Alvarez denied.

[…]

Paxton’s lawsuit argued that SAISD’s vaccine mandate violated Gov. Greg Abbott’s executive order prohibiting governmental entities from implementing COVID-19 vaccine mandates, which the governor claimed he had the authority to do under the Texas Disaster Act. Attorneys for SAISD challenged that reasoning, contending the Act does not give the governor the power to suspend all state laws.

Wednesday’s ruling by the 4th Court of Appeals determined that the Texas Disaster Act does not give Abbott the authority to suspend parts of the Education Code that allow school districts to issue vaccine mandates.

“The Texas Disaster Act expressly limits the Governor’s commander-in-chief authority to state agencies, state boards, and state commissions having emergency responsibilities,” the ruling states. “The District is not a state agency, a state board, or a state commission. Rather, the Texas Disaster Act defines the District as a ‘local government entity.’”

See here for the previous update. This sounds like a solid ruling, one that SCOTx ought to uphold, though who knows what they’ll actually do. It would also be written on sand to some extent, in that if the Republicans retain full control of government next year they’ll just amend the Texas Disaster Act to make it cover school districts and/or explicitly exclude anything having to do with vaccinations. In the meantime, even though the policy remains on hold during the litigation, it’s surely the case that the mandate got some holdouts vaccinated during the period while it was in effect. That will always be a win, no matter what happens from here.

The Republicans just want to punish everyone for every abortion ever

They want to put you in jail.

More than 70 Republican state lawmakers have signed onto a friend-of-the-court brief siding with Attorney General Ken Paxton in arguing that a nearly century-old law imposing criminal penalties against those who help a patient obtain an abortion is enforceable now that the U.S. Supreme Court overturned Roe v. Wade.

A decision on whether that pre-Roe measure is enforceable is expected in the near future from the Texas Supreme Court, which has temporarily allowed the statute to be enforced civilly but not criminally.

The lawmakers, in a filing penned by state Rep. Briscoe Cain of Deer Park, argue that the Texas Legislature has “repeatedly and emphatically affirmed” the existence and continued enforceability of the old laws in recent legislation.

They note both the state’s anti-abortion trigger law, which will go into effect 30 days after the decision overturning Roe is certified, and its previous six-week abortion ban included language to that effect.

Lawyers for the plaintiffs — seven abortion clinic groups throughout Texas — point to legislative and judicial treatment of the old laws that they say proves they are no longer considered to be in effect, including a 2004 Fifth Circuit opinion that said the old laws were “repealed by implication.” The old statutes were also removed from copies of the state’s criminal and civil codes online.

In court records filed Monday, the Republican lawmakers argue that a state court can now make its own decision in the case, no matter how federal courts have ruled in the past.

They add that the Texas and U.S. Supreme Courts both “disfavor repeals by implication” and defers to it only when statutes can’t be “harmonized.” The lawmakers argue the laws could work in tandem.

See here for the background. This is nearly a legislative majority in itself. Imagine what they’ll do next spring if there are no checks on their power.

They also want to sue everyone in sight.

Texas anti-abortion conservatives are intensifying their efforts to shut down access for residents seeking abortions, with a near-daily drumbeat of threats and court filings aimed at donors, employers and others trying to help those patients.

They are part of a broad campaign by the anti-abortion rights movement, in the days since the U.S. Supreme Court reversed the constitutional right to abortion last month, to dry up avenues of assistance for Texans who have no access to abortion under several state laws and punish providers who have tried to legally continue offering services in a constantly changing legal landscape.

In their crosshairs are not just providers, but also nonprofit funding groups and the donors who support them; people who volunteer time or give money to abortion providers; employers who support pregnant workers in getting abortions; and the abortion clinics and employees themselves.

“Any person who was complicit in these illegal abortions—including [provider] Whole Woman’s Health employees, volunteers, and donors, and anyone who aided or abetted these illegal abortions in any manner, apart from the formerly pregnant woman upon whom the illegal abortion was performed — is equally liable under the Texas Heartbeat Act and equally guilty of murder,” reads a recent court filing by attorney Jonathan Mitchell, the legal architect of many of those efforts, including Senate Bill 8, a Texas law that bans abortions after fetal cardiac activity is detected and allows citizens to sue suspected violators.

[…]

When the trigger law takes effect, the state will have at least three separate laws on the books that collectively make abortion from the moment of conception illegal in Texas, in almost all cases, and hold violators liable either civilly or criminally.

But abortion opponents are ready to ask for more, threatening new laws that would extend Texas abortion laws beyond state lines, widen prosecutors’ powers to pursue abortion cases and further criminalize anyone who tries to help Texans get abortions.

“I think they’re emboldened, and I also think that frankly, the base that they’ve become dependent on is going to demand that they just keep going,” said Dallas attorney Elizabeth Myers, who represents Lilith Fund, an abortion-funding group and advocacy organization that is among those being targeted in civil court filings and by Texas legislators. “They will go until the court says no.”

On the civil side, courts in conservative Denton and Jack counties are likely to start hearing arguments in the coming weeks over whether to let Mitchell interview, under oath, two major funding groups about their involvement in potentially illegal procedures under both the 1925 law and SB 8. A similar request was filed by Mitchell in Howard County last week targeting abortion providers.

If that effort is successful, the information and documents that the abortion providers and supporters may be forced to turn over could help anti-abortion rights attorneys build lawsuits against them.

And although civil depositions can’t be legally used in criminal cases, they are public records and could be easily obtained by local prosecutors seeking an evidentiary road map for their own criminal cases.

See here for the background, and note that they got started several months before the Dobbs ruling. If you think they will continue to exclude the women who get abortions from their campaign of vengeance, you are giving way too much credit to a group of people who think that ten-year-old girls should be forced to carry a rapist’s baby and that hospitals should be held criminally liable for performing live-saving care. I would argue this isn’t their highest priority going forward, it’s their only priority. And sooner or later, they’ll come after all of us. What are we going to do about that?

Who gets to judge Volkswagen?

Fascinating little legal cul-de-sac here.

German car manufacturers Volkswagen and Audi — facing a lawsuit from Texas that could cost the companies millions stemming from the emissions cheating scheme uncovered in 2015 — argue that Gov. Greg Abbott could unfairly tilt the scales in the state’s favor by appointing two temporary justices to help decide the case.

Texas Supreme Court Chief Justice Nathan Hecht on June 24 asked Abbott to temporarily commission two justices to the state’s high court in order to decide a case related to an emissions-cheating lawsuit against Volkswagen and Audi. Volkswagen in 2015 admitted to deceiving regulators by designing software that circumvented U.S. emissions tests.

With tens of thousands of vehicles impacted in Texas, several millions of dollars could be at stake in the Texas case, according to the state’s civil penalties code. The issue before the state’s high court centers on whether Texas has jurisdiction over the foreign parent companies, Germany-based Volkswagen and Audi.

Justices Jimmy Blacklock and Evan Young recused themselves from the case, Hecht wrote in the letter, leaving the court with seven remaining members to rule on the case. The Texas constitution requires at least five justices to agree, one way or the other, in order to issue a supreme court decision, suggesting the remaining justices were split.

But because the state is a party in Attorney General Ken Paxton’s cases against the companies, Volkswagen and Audi’s lawyers have argued that allowing the Texas governor to appoint justices to a case for which the state stands to win a substantial amount of money would give “the impression that the State has had undue influence.”

“Although the Governor and the Attorney General are different officers, they both represent the same entity: the state of Texas,” wrote Jeffrey Wall, an attorney for Volkswagen in a letter to the court that was also sent to Abbott.

Hecht declined to comment on the letter, but a spokesperson for the Supreme Court of Texas said that there have been at least 13 other instances since 1995 in which the governor was asked to appoint temporary justices.

But neither the Supreme Court of Texas nor attorneys for the companies could identify another case in Texas history when the governor has been asked to commission temporary justices to a case for which the state is a party.

Abbott’s office did not respond to a request for comment.

Volkswagen and Audi’s lawyers say appointing the justices at this point would give the appearance of bias to the court.

“Attorney General Paxton brought these actions on behalf of the state in an effort to recover massive penalties from respondents,” wrote Wall. “Simply put the state may not pick two judges who will help to decide whether it wins or loses before this court.”

If the governor doesn’t commission two more justices, the cases could return to the Texas Court of Appeals, where Volkswagen and Audi had successfully argued that Texas did not have jurisdiction over the foreign companies. The court had found that Volkswagen and Audi’s recall-tampering activities were not “purposefully directed” at Texas, but directed at the U.S. as a whole.

See here for my previous blogging on this. The last entry I have is from 2018, in which settlement money from a different lawsuit was being distributed. There will only be money at stake here if SCOTx disagrees with the appeals court, and I can see why VW and Audi might be skeptical about letting Greg Abbott pick the two replacement justices. One suggestion for how to resolve this is for both sides to agree on a couple of names. I’m thinking maybe put all of the current appellate court justices’ names into a hat and randomly draw two of them. This shouldn’t be that hard to solve. But it’s always cool to see something that hasn’t come up before.

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

New case, different families.

A Travis County judge on Friday granted a narrow injunction against the state of Texas that will continue to block investigations of child abuse for two families who allowed their children to receive gender-affirming care.

The suit was brought by three Texas families and national LGBT advocacy group PFLAG in response to the Department of Family and Protective Services resuming the investigations this spring, after the Texas Supreme Court ruled it could in a similar but separate case.

“The DFPS Rule was given the effect of a new law or new agency rule, despite no new legislation, regulation, or even valid agency policy,” said Judge Amy Clark Meachum, a Democrat, in granting the injunction, which will last until the case’s resolution.

Like another Travis County judge who granted a temporary restraining order that blocked the investigations into the plaintiff families, Meachum wrote in her ruling Friday that restarting the inquiries would cause “immediate and irreparable injury” to them.

Unlike the previous injunction, however, Meachum’s order does not apply to all members of the chapter-based group PFLAG.

Meachum said Friday that she will “consider legal and factual consideration” and “rule as soon as possible” on whether to do so. Adam and Amber Briggle, the third plaintiff family, was also not included in Friday’s injunction, as their CPS case was closed after the lawsuit was filed.

[…]

There have been 11 investigations of parents of Texas transgender youth, testified Marta Talbert, a director of the state’s Child Protective Investigations unit who was called as a witness by state lawyers. Talbert said five have been closed and two are close to being closed.

The other four cases are stayed by the court through litigation. Talbert said this was either because the state found the youth were not on any kind of puberty blockers or hormones or, more often, because their doctor was able to provide information about their care to investigators.

Lawyers for the plaintiffs disputed that the investigations were being held up for purely administrative reasons and said there seemed to be “further activity” by the child welfare agency on them, contradicting Talbert’s testimony.

See here for a copy of the judge’s order. As the story notes, the state has already filed an appeal, so this will end up before the Supreme Court again in fairly short order. I’m going to go through a bunch of previous posts to review the history so far, but first let’s look at the Statesman story for some further details.

Meachum’s temporary injunction blocked the child-welfare agency from taking any action against the families other than to close its investigations — if that can be done without further contact with the parents or children.

The controversy began in February when Paxton issued a nonbinding legal opinion that said gender-affirming care was prohibited by state child-abuse laws. National medical experts said Paxton relied on false claims, exaggerations and errors to reach that conclusion, but Abbott followed with a Feb. 22 letter directing the Department of Family and Protective Services to investigate such care as abuse, and the state’s child-welfare agency agreed to do so.

Legal challenges followed.

The first lawsuit was filed by a mother, identified only as Jane Doe, who worked for the Department of Family and Protective Services and came under investigation after asking a supervisor what Abbott’s directive meant for her transgender teen. Meachum responded in March by issuing a statewide injunction barring all abuse investigations based solely on providing gender-affirming care.

Paxton’s bid to overturn the injunction is still before the Austin-based 3rd Court of Appeals, but in the meantime, the Texas Supreme Court substantially limited the scope of the judge’s order, striking down the statewide injunction in May while allowing it to apply only to the Doe family.

When Child Protective Services resumed child abuse investigations, three more families filed suit, this time joined by PFLAG, a leading LGBTQ advocacy organization. Last month, a different Travis County judge responded by issuing a temporary restraining order blocking investigations into the three families and any member of PFLAG.

On Wednesday, during a daylong hearing in Austin on whether to convert the restraining order into a longer-lasting injunction, lawyers for Paxton argued that state law gives the child welfare agency the authority to protect minors from abuse, including the potentially improper use of puberty blockers and hormone therapy.

To recap, the first lawsuit to block investigations resulting from Greg Abbott’s executive order, which in turn followed Ken Paxton’s nonbinding opinion, came on March 1, with a DFPS employee and her family, including her 16-year-old daughter, as plaintiffs; Amy Clark Meachum was the judge in this case as well. They won a restraining order, which was then appealed and upheld by the appellate court. On March 11, Judge Meachum issued a statewide injunction to stop the state from investigating anyone for child abuse based solely on the allegation that they provided gender-affirming medical treatment, and anyone from being prosecuted for child abuse for providing gender-affirming care and lifts the mandatory reporting requirements laid out in the directive. This was upheld by the appellate court after some shenanigans by Ken Paxton. On May 13, the Supreme Court upheld the original injunction for the first family that sued but overturned the statewide injunction, which allowed DFPS to pursue other investigations if it had grounds to do so. At that time, DFPS employees said that “agency leadership has acknowledged that these investigations do not meet the current requirements for child abuse and have said policy would need to be generated to match the governor’s directives”, which I believe is what Judge Meachum is citing in this ruling. DFPS did resume some investigations, which led to another lawsuit filed on behalf of three families, who were granted a restraining order by a different Travis County judge, Jan Soifer. One of the three plaintiff families in that case is the Briggles, whose investigation has since been closed by DFPS, which I believe means they are no longer party to that suit, though I could be wrong about that. And that, I believe, catches us up. Whew!

From here the usual pattern will be followed. The restraining order is being appealed, and if history is any guide it will be upheld by the Third Court and go from there to SCOTx. In the meantime, there will be a hearing for a permanent injunction, which according to Judge Meachum’s order will be on December 5. SCOTx may or may not get around to weighing in on the restraining order before then. Most likely some other suits similar to these current two will be filed, and perhaps DFPS will publish an update to their requirements to make their investigations less susceptible to these lawsuits. I have no idea how long that process may take or what the new requirements might look like. I don’t think there’s any relevant federal activity that could have an effect, but that may change, and I might be wrong about that. Needless to say, the 2022 election will have an effect as well.

One more thing, from the Chron story:

The state called as a witness James Cantor, a clinical psychologist based in Ontario, Canada, who said his reviews of studies have found that the majority of children with gender dysphoria no longer end up having symptoms of the condition after hitting puberty and instead “tend to realize they are gay or lesbian.”

Most of the studies he cited in a blog post making the same argument were published before 1988. Gender identity disorder did not make an appearance in the nation’s manual of mental disorders until 1980.

The plaintiffs’ attorneys objected to Cantor’s testimony, saying the studies referenced were not of transgender youths but rather “tomboys” or “effeminate” youth. They also pointed to a North Carolina district court opinion that found that Cantor lacked personal experience or expertise treating minors with gender dysphoria and therefore gave his testimony “very little weight.”

“It’s a complete misrepresentation of the science, one that frankly is the basis and foundation for all of Paxton’s opinions, Gov. Abbott’s directive and the department’s actions,” said Omar Gonzalez-Pagan, senior attorney with Lamda Legal. “It’s a fundamental misunderstanding about trans kids because they don’t believe trans kids should exist.”

This is your reminder that the state’s entire case is built on bullshit and lies, and should be laughed out of the courtroom. The Los Angeles Blade has more.

Paxton escapes open records lawsuit

Sheesh.

Best mugshot ever

The Travis County district attorney’s office will not proceed with a lawsuit against Texas Attorney General Ken Paxton for refusing to release his communications around the time of the Jan. 6 attack on the U.S. Capitol.

Despite determining that the attorney general likely violated the state’s open records law, the district attorney’s office said it would not sue because journalists who had requested Paxton’s records declined to testify in court in order to protect their sources.

The district attorney’s office launched its investigation of Paxton’s office after editors at Texas’ largest newspapers filed a complaint earlier this year alleging that the attorney general was breaking the state’s open records law.

In a hand-delivered letter to Paxton on Jan. 14, Jackie Wood, the district attorney’s director of public integrity and complex crimes, stated her office concurred with the allegations in the editors’ complaint and gave Paxton four days to cure the violations or face a lawsuit.

“We were encouraged that the district attorney agreed that Paxton’s office violated the law,” said Maria Reeve, executive editor of the Houston Chronicle. “We hoped that those facts would be sufficient for a lawsuit to proceed — and that our reporters would not need to testify.”

Paxton’s general counsel, Austin Kinghorn, said the allegations were “meritless.”

Wood later asked the journalists if they’d be willing to testify in court about the roadblocks they encountered trying to obtain records from the attorney general’s office. The newspapers declined to do so over concerns that reporters could be forced to testify about their unnamed sources or newsgathering methods. If they refused to answer, they’d risk being found in contempt of court.

“Therefore, it is the decision of this office not to proceed to seek declaratory and injunctive relief in order to bring Attorney General Ken Paxton and the Office of the Attorney General into compliance with the public information requirements of the Texas Government Code,” Public Integrity Unit Team Leader Rob Drummond wrote in a July 1 letter to Reeve.

See here, here, and here for the background. On the one hand, I understand that the papers didn’t want to put any of their employees in legal jeopardy. On the other hand, I feel like they had some duty to pursue this to a conclusion, since they filed the complaint in the first place. Was there no way for a private citizen, someone who wouldn’t have sources to risk, to testify in their place? I don’t understand the legal subtleties of this. I’m just frustrated by the outcome.

SCOTx re-enables statewide abortion ban

Ugh.

The Texas Supreme Court has blocked a lower court order that had allowed clinics in the state to continue performing abortions even after the U.S. Supreme Court overturned it’s landmark 1973 ruling that confirmed a constitutional right to abortion.

It was not immediately clear whether the clinics in Texas that resumed performing abortions just days ago would halt services again following the ruling late Friday night. A hearing is scheduled for later this month.

The whiplash of Texas clinics turning away patients, rescheduling them, and now potentially canceling appointments again — all in the span of a week — illustrates the confusion and scrambling that has taken place across the country since Roe v. Wade was overturned.

An order by a Houston judge on Tuesday had reassured some clinics they could temporarily resume abortions up to six weeks into pregnancy. Texas Attorney General Ken Paxton quickly asked the state’s highest court, which is stocked with nine Republican justices, to temporarily put that order on hold.

“These laws are confusing, unnecessary, and cruel,” said Marc Hearron, attorney for the Center for Reproductive Rights, after the order was issued Friday night.

Clinics in Texas — a state of nearly 30 million people — stopped performing abortions after the U.S. Supreme Court last week overturned Roe v. Wade. Texas had left an abortion ban on the books for the past 50 years while Roe was in place.

Attorneys for Texas clinics provided a copy of Friday’s order, which was not immediately available on the court’s website.

See here and here for the background; Steve Vladeck provides a bit more context. You can see a summary of the order (order 22-0527) here. The relevant bits:

The parties are directed to submit briefing by 5 p.m. July 7, 2022 regarding whether the 269th District Court of Harris County, Texas, has jurisdiction to enjoin the enforcement of a criminal statute. See State v. Morales, 869 S.W.3d 941 (Tex. 1994). Real parties in interest are requested to respond to relators’ petition for writ of mandamus by 5 p.m. July 11, 2022. This order does not preclude further proceedings in the court of appeals and district court, including proceedings to address the jurisdictional issue described in paragraph 2 above. The Court is confident that those courts will proceed expeditiously.

[Note: The petition for writ of mandamus remains pending before this Court.]

The 269th Civil Court in Harris County, which issued the temporary restraining order that SCOTx has now lifted, has a hearing scheduled for July 12 to determine whether an injunction can be granted. We may get that on the 12th or 13th, and then subsequent rulings from SCOTx shortly thereafter. I assume the writ of mandamus was filed by the Attorney General to supersede all this and just declare that there’s nothing stopping them from enforcing that 1925 law that criminalized abortion. Don’t you just love it when this kind of order drops on the Friday evening of a holiday weekend? Axios, the WaPo, the NYT, and the DMN have more; as of Saturday morning when I drafted this the Trib had not yet published anything and the Chron was carrying this same AP story. Like I said, Friday night, holiday weekend.

UPDATE: Here’s the Trib story.

Supreme Court confirms that Texas Central is a railroad

Hope it’s not too little, too late.

The Texas Supreme Court on Friday gave the go-ahead to beleaguered plan to build a bullet train connecting Houston and Dallas, ruling that companies behind the project have the power to acquire private property through eminent domain. .

In a 5-3 ruling issued Friday, the high court said that Texas Central Railroad and Texas Logistics could indeed be considered as an “interurban electric railway companies” under state law, even though they have yet to build a railroad, and may never do so.

The decision culminates a years-long legal battle, launched by landowners along the bullet train’s route shortly after project was proposed. One of them, Leon County rancher James Fredrick Miles, filed suit in 2016, after Texas Central sought to survey the roughly 600 acres he owns along its “preferred” route—land which would be bisected if the bullet train is built.

The case turned on what it means to be a “railroad company” or “interurban electric railway company,” which have eminent domain authority under the state Transportation Code.

On HoustonChronicle.com: Critics say the idea of a Houston-Dallas bullet train could be over

Miles, along with other property owners argued that Texas Central didn’t qualify because it wasn’t operating a railroad and may never do so. Texas Central has yet to build any tracks or train stations, or acquire the Japanese Shinkansen railcars called for in the project proposal.

The project’s proponents, however, argued that this line of reasoning yielded a chicken-and-egg problem that would make it impossible to ever build a rail line.

A trial court sided with Miles. A court of appeals in 2020 overturned that ruling, leading Miles to petition the Texas Supreme Court for review. Friday’s ruling affirms the appellate court’s ruling.

See here for the previous update, and here for the majority opinion; there were two concurrences and two dissents, and you can find all of those documents here. As the story notes, this ruling comes at a time of turmoil for Texas Central. It’s not clear if this will finally enable them to move forward with construction, or if the only beneficiary will be whatever tries to resurrect the idea of a privately-run high speed railroad following their downfall. But in the end, they were indeed a railroad. That has to mean something.

Where are we with the Paxton whistleblower lawsuit?

We are in the familiar position of waiting for the drawn-out appeals process to conclude. Pull up a chair and make yourself comfortable.

Best mugshot ever

The appeals process has grown a bit longer in state Attorney General Ken Paxton’s effort to dismiss a whistleblower lawsuit by four top agency officials who claim they were improperly fired in 2020 after accusing him of accepting bribes and other misconduct.

Paxton turned to the Texas Supreme Court 7½ months ago after two lower courts rejected his bids to toss out the lawsuit.

Last month, the Supreme Court told Paxton and the whistleblowers to provide justices with a deeper dive into the legal issues involved, kicking off a second round of legal briefing that was recently extended when the court granted Paxton’s request for an extra month to file his expanded brief.

Paxton’s brief is now due July 27, and although the court told Paxton that additional extensions aren’t likely to be granted, the move means the final brief isn’t due until Aug. 31 at the earliest.

That moves the case into election season as Paxton seeks a third four-year term against a Democrat, Rochelle Garza, who has made questioning Paxton’s ethics a campaign centerpiece. Three opponents tried the same tactic against Paxton in this year’s GOP primaries without success.

The timing also puts the case close to the two-year anniversary of when eight top officials of the attorney general’s office met with FBI agents and other investigators to relate their suspicions that Paxton had misused the powers of his office to help a friend and political donor, Austin real estate investor Nate Paul.

See here and here for the most recent updates. Paxton’s argument is that as an elected rather than appointed official, he doesn’t count as a “public official” under the Texas Whistleblower Act, so the employees who fired him have no grounds to sue. He has other arguments, but that’s the main thing that will be of interest to the Supreme Court. I’m sure you can surmise what I think, but if you want to dig deeper you can click the Texas Whistleblower Act tag link and review other posts in this genre.

Just as a reminder, we are also waiting for the FBI to take some kind of action in their investigation of the Ken Paxton-Nate Paul dealings, the State Bar complaint against Paxton for his attempt to overthrow the 2020 election should have a hearing sometime later this summer, and of course there’s the granddaddy of them all, the original state charges that Paxton engaged in securities fraud, which are now eight years old. He’s sure been a busy boy, hasn’t he?

Is Texas Central in trouble?

This story sure questions its stability.

The departure of Texas Central Railway’s CEO has critics of the proposed bullet train between Houston and Dallas optimistic the controversial project has reached its last stop, far short of ever starting construction.

“Texas high-speed rail is collapsing before our eyes,” Rep. Kevin Brady, R-The Woodlands, a longtime skeptic of the plan, said in a social media post. “Today, with no leadership, no funding, no permits and no Washington bail-out from taxpayers, this project is dead.”

Carlos Aguilar, who stepped in as CEO in December 2016 as Texas Central said it was closing in on construction approvals, announced Saturday that he was leaving the company.

“While I could not align our current stakeholders on a common vision for a path forward, I wish the project the greatest success and remain convinced of the importance of this venture for the safety and prosperity of ALL Texans,” Aguilar wrote in a post on the career development site LinkedIn.

Texas Central did not respond to a request for comment.

Aguilar’s departure follows a moribund few months for the company, which dramatically slashed its staff early in the COVID pandemic, while saying it still planned to break ground soon on the 240-mile line between the two metro areas. The Federal Railroad Administration in September 2020 approved plans for the line, mostly along a utility corridor through 11 Texas counties, with a stop near College Station.

While a major step forward, the announcement was among the last significant moves for the proposed train line that was to use Japanese Shinkansen railcars assembled in the United States to whisk travelers between Houston and Dallas in 90 minutes.

For nearly two years, Texas Central announced various reiterations of previous agreements, shed more staff and fought critics who sought to strip it of its condemnation rights.

The issue of whether the company can acquire property via eminent domain remains unresolved, with a ruling pending from the Texas Supreme Court.

CEOs come and go – this one’s departure doesn’t necessarily mean anything. The lack of news is more troubling – TCR had hoped to start construction in 2020, and while we can all understand why that didn’t happen (seriously, look at the date on that post), the fact that they haven’t announced a new target date to start isn’t encouraging. I continue to believe that this project makes a lot of sense, but if nothing else the original contention that a privately-owned and funded railroad could get lines built and trains running in a faster and more efficient manner than a government-run entity has been sorely tested. I hate to think that all of this work could be thrown away and we’d be back at square one, but that outcome is in play. I sure hope to see something contrary to that soon.

Harris County GOP drops its lawsuit over election night vote dropoffs

It wasn’t getting anywhere, anyway.

The Harris County GOP on Friday dropped its lawsuit, filed on the day of last month’s primary runoff election, challenging the county’s plan for counting ballots.

Local Republican party officials argued the county’s ballot transport protocol violated state election law. The lawsuit, filed just hours before polls closed on Election Day, could have caused serious delays in counting ballots on May 24 had the Texas Supreme Court agreed with the Harris County GOP that the plan was unlawful. Instead, the court did not issue an opinion and election night ballot counting proceeded uneventfully at NRG Arena.

[…]

The Harris County Elections Administrator’s office debuted the plan in the May 7 election — deputizing law enforcement officials and full-time county staffers to deliver ballots from the polling location to the county’s central counting station.

Traditionally, the responsibility of transporting the ballots to the counting station on election night has fallen to election judges, the final task at the end of their 15-hour day. An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process.

The Harris County GOP pushed back on the county’s plan, arguing only election judges are allowed to transport ballots and instructing Republican election judges to drive ballots themselves. The Election Administrator’s office notified Republican election judges they could “opt in” to the county’s plan if they wished, and at least 31 of them did so.

At a May 11 hearing with the state House Elections Committee, Harris County Elections Administrator Isabel Longoria argued the county’s ballot delivery plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

Keith Ingram, the secretary of state’s director of elections, told lawmakers in the hearing he disagreed with that interpretation and believed Harris County’s plan violated the law.

See here for the background. As noted recently, the Supreme Court never responded to the initial writ, so I assume this was just a matter of the local GOP deciding it wasn’t worth the effort to continue. With a new election administrator about to come on board, we can revisit the matter and see if there’s a consensus to be had. From what I’ve gathered from talking to people, the multiple-dropoff-locations idea, which had been Diane Trautman’s original plan, is probably the best way to go. But we’ll see what happens.

Would you believe there’s still Renew Houston litigation out there?

This hit my mailbox on Friday.

Today, the Supreme Court of Texas ruled in the City’s favor in Perez v. Turner, a challenge to Houston’s drainage fee, which provides the City with $125 million per year to pay for drainage infrastructure projects.

The Court found that plaintiff’s challenges failed because of Houston’s authority as a home – rule city to enact a drainage program.

“The City remains committed to protecting its citizens and their homes from flooding. The City’s continued ability to charge a drainage fee will allow it to do so in a fiscally responsible way and undertake essential drainage projects now and in the future,” said Mayor Sylvester Turner.

What the heck? Off to the Supreme Court website I scurry, and I find this.

Plaintiff Elizabeth Perez filed this case in 2015 challenging the City of Houston’s assessment, collection, and expenditure of a “drainage fee.” Perez alleged that the ordinance authorizing the drainage fee was invalid because the ordinance was premised on a faulty amendment to the city charter. She sought a variety of relief for herself and a class of similarly situated taxpayers, including a declaration of the drainage fee ordinance’s invalidity, an injunction against the City’s collection of drainage fees, and reimbursement of drainage fees already paid.

The nature of this case changed dramatically in November 2018, while the case was on appeal. The City passed a new charter amendment curing many of the defects Perez alleged in the drainage fee ordinance. Although the parties’ briefing is less than clear about the effect on this case of the 2018 charter amendment, Perez conceded at oral argument that the passage of the new charter amendment significantly truncated her original claims. As we construe what remains of this case after the November 2018 amendment, Perez has two ongoing claims—one for reimbursement of the drainage fees she paid prior to 2018, and one for a narrow prospective injunction against the future expenditure of fees collected prior to 2018. As explained below, we affirm the lower courts’ dismissal of these claims, but we remand the case to the district court to allow Perez to replead in light of intervening events.

What follows was a longish and very technical opinion that my non-layer brain could not quite wade through. I remember the re-vote on Renew Houston in 2018, which became a likelihood after SCOTx ruled in 2015 that the original 2010 ballot language “obscured the nature and cost of the drainage fee”. The case was sent back to the district court, which then voided the referendum. The re-vote was subsequently held to address those issues. One of the original plaintiffs filed another lawsuit after that 2015 ruling to get back the money she had paid in drainage fees and to compel the city to refund anything they had previously spent from ReBuild; this ruling was an outgrowth of that later litigation, which I either didn’t notice at the time or didn’t follow. I think the bottom line at this point is that it’s very unlikely that any new challenges to Renew/ReBuild Houston will succeed, but the plaintiff is welcome to try her luck again in the district court, and maybe in another five years or so we’ll get a final ruling on that.

SCOTx answers the Fifth Circuit’s questions

Some late-breaking SB1 lawsuit news.

The Texas Supreme Court issued a ruling Friday on the term “solicit” as it pertains to the state’s new election code.

[…]

Of three main issues, one raised several questions pertaining to the definition of “solicit.” The questions arose after the plaintiff, Harris County Elections Administrator Isabel Longoria, argued the vagueness of the term. In one argument, Longoria’s attorneys requested that the term “solicit” be tethered only to vote-by-mail applications sent to those ineligible voters.

State justices rejected that request.

“The statute does not prohibit solicitation merely of those ineligible to vote by mail. Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the opinion read.

In a second request, Longoria’s team argued that “solicitation” in its broad definition could include terms that are less forceful in nature, including “encourage” or “request.

The defendant, Texas Attorney General Ken Paxton’s team, said it defined “solicit” as beyond encouragement, but more so “importuning or strongly urging.” Paxton said that stating “please fill out this application to vote by mail” would constitute solicitation.

While justices refrained from defining “solicit,” stating they were not requested to, they agreed with Paxton that “solicit” is not limited to demands that a person submit an application to vote by mail, but includes statements such as “please fill out this application to vote by mail.”

But justices did find that telling potential voters they have the opportunity to apply for mail-in ballots does not constitute solicitation.

“The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one,” the opinion read. “Without expressing an opinion as to any particular statement plaintiffs may wish to make, we conclude that (the law) does not include broad statements such as telling potential voters that they have the opportunity to apply for mail-in ballots.”

See here and here for the background, and here for the opinion. As noted in the previous update, by this time both sides had agreed that Volunteer Deputy Registrars (VDRs) were not public officials and (I presume) not covered by SB1, and that the Attorney General did not have enforcement power for SB1 (not clear to me if District Attorneys might, however). I expect this means that the Fifth Circuit will rule that plaintiff Cathy Morgan, who is a VDR, has no standing to sue.

On the three-part question that SCOTx did have to answer, my reading is that under SB1 it would be illegal for a county elections administrator to pre-emptively send a vote by mail application to everyone who is eligible to vote by mail, as Chris Hollins did in 2020. Such applications can only be sent to people who ask for them. Providing general information about the vote by mail process, including how to apply, would not be barred. I still think the whole thing is a ridiculous over-reaction to what Hollins did in 2020, and that we should be making it easier to vote by mail in general, but all things considered, compared to where we were before SB1, this isn’t a major setback.

It should be noted that there’s still a lot of room for future disputes here, which likely will remain the case even after a final ruling in this lawsuit. From the opinion, on the matter of the definition of the word “solicit”:

The Fifth Circuit next asks whether “solicits” is “limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies).” 2022 WL 832239, at *6. Plaintiffs suggest that the ordinary meaning of “solicit” includes speech that lacks the insistence normally associated with a demand. According to Plaintiffs, the term’s ordinary meaning includes speech that is far less forceful. Indeed, under their view, solicitation includes all the following: “requesting, urging, encouraging, seeking, imploring, or inducing.”

Paxton argues that the Legislature could not have intended to sweep so broadly. He argues, for example, that “solicits” cannot include mere encouragement of an action because the Legislature has used both “solicits” and “encourages” in many statutes, indicating that they have different meanings. See, e.g., TEX. EDUC. CODE § 37.152(a) (“A person commits an offense if the person . . . solicits, encourages, directs, aids, or attempts to aid another in engaging in hazing . . . .”); TEX. PENAL CODE § 7.02(a)(2) (holding a person criminally responsible for another’s offense if the person “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense”); cf. TEX. ELEC. CODE § 13.031(a) (stating that the purpose of appointing VDRs is “[t]o encourage voter registration”). Paxton urges us to define “solicits” to exclude mere encouragement and to require “importuning or strongly urging.” But Paxton also concedes that stating “please fill out this application to vote by mail” would constitute solicitation.

Whether a particular statement constitutes solicitation for purposes of Section 276.016(a)(1) will, of course, be informed by the precise words spoken and by surrounding context. We therefore do not endeavor to articulate today a comprehensive definition of “solicits” as the term is used in Section 276.016(a)(1). Nor do we express an opinion as to whether any of the general categories of statements Plaintiffs say they wish to make constitutes solicitation. We will leave for another case, with a more developed record, the task of defining the term’s outer reach. For today, we believe it is sufficient to hold that, for purposes of Section 276.016(a)(1), “solicits” is not limited to demands that a person submit an application to vote by mail. As Paxton acknowledges, “solicits” includes statements that fall short of a demand, such as “please fill out this application to vote by mail.”

So Isabel Longoria is arguing that SB1 is super-restrictive on this point, while Ken Paxton is saying, nah, not really. The Court is saying they don’t want to get involved just yet, better to see what happens in the real world rather than rule on hypotheticals, and work with a more complete set of facts. If the parties’ arguments seem backwards to you, the Court addressed that in a footnote:

In a criminal prosecution (or civil-enforcement action), one ordinarily might expect the government to take a broad view of the statute’s application and the defendant to take a narrow view. But to establish (or defeat) a plaintiff’s standing in a pre-enforcement challenge, the plaintiff has an incentive to argue that the statute does apply to her, while the government has an incentive to argue it does not. The unusual dynamic present here contributes to our reluctance to make wide-ranging proclamations on the issues of state law presented.

In other words, at this point in time before the law has really been applied to anyone, the plaintiffs want the Court to believe that the law is vast and (they claim) over-reaching and must be struck down, while the defense wants the Court to think that the law is more modest and thus not a threat to anyone’s Constitutional liberties. Needless to say, when the law is eventually enforced by someone, those arguments will be reversed.

So it’s now back to the Fifth Circuit. I wish there had been more coverage of this – I grant, the opinion dropped on Friday afternoon and some people have lives – but so far all I’ve seen is this story from a site in Greenville (?) and one from a partisan site; I also found paywalled stories at Law.com and Bloomberg Law, but couldn’t read them. Maybe next week one of the regulars will have something, which I hope will include a bit of analysis from someone with actual law knowledge. Until then, this is what I think I know.

Restraining order given in latest lawsuit to stop DFPS investigations

Good.

An Austin judge has temporarily stopped the state from investigating many parents who provide gender-affirming care to their transgender children. The state has ruled out allegations of child abuse against one family under investigation, but at least eight more cases remain open.

Travis County District Judge Jan Soifer issued a temporary restraining order Friday in a lawsuit filed on behalf of three families and members of PFLAG, an LGBTQ advocacy group that claims more than 600 members in Texas.

Brian K. Bond, executive director of PFLAG National, applauded the decision to stop what he called “invasive, unnecessary and unnerving investigations.”

“However, let’s be clear: These investigations into loving and affirming families shouldn’t be happening in the first place,” Bond said in a statement.

[…]

This new lawsuit, filed Wednesday by the American Civil Liberties Union and Lambda Legal, seeks to block investigations into all parents of transgender children who belong to PFLAG.

During Friday’s hearing, Lambda Legal’s Paul Castillo revealed that the state has ruled out allegations of child abuse against Amber and Adam Briggle, who were under investigation for providing gender-affirming care to their 14-year-old son.

The Briggle family, outspoken advocates for transgender rights, once invited Republican Attorney General Ken Paxton over for dinner. Five years later, they ended up at the center of a child abuse investigation that stemmed, in part, from a nonbinding legal opinion that Paxton issued in February.

While their case has been closed, many others remain ongoing. Castillo said one of the families involved in the lawsuit was visited by DFPS investigators Friday morning.

“I do want to highlight for the court that every plaintiff in this case has illustrated the stress and trauma of even the potential of having a child removed, merely based on the suspicion that the family has pursued the medically necessary course of care that is prescribed by their doctor for gender dysphoria,” Castillo said.

See here for the background, and here for an account from Lambda Legal. The investigation into the Briggle family had apparently been dropped before the hearing, but as noted the others were still active. The judge has directed the lawyers to schedule a hearing in the coming days, at which time we’ll see if the order gets extended. While DFPS had restarted investigations following the Supreme Court’s lifting of the statewide injunction, the investigation of the family from that original case is still paused, so most likely these families will get the same relief. It’s just a shame that they have to go to such lengths to get it.

I would encourage you to read this Twitter thread by DMN reporter Lauren McGaughy, who live-tweeted the hearing. It’s obvious from the way the state argued the case and responded to the judge’s questions that they know they’re on extremely shaky ground – they’re minimizing the Abbott/Paxton order at every turn, and just not engaging the questions as much as they can. That’s not a guarantee of success for these or other plaintiffs going forward, and the next Legislature could enshrine these orders as law if the Republicans remain in control, but it’s important to see the lack of faith in their own case. The Chron has more.

New lawsuit filed to stop DFPS “investigation” of trans kids and their families

From the inbox:

The American Civil Liberties Union, Lambda Legal, and the ACLU of Texas, along with Texas-based law firm Baker Botts LLP, today filed a new lawsuit in Texas state court on behalf of PFLAG National and three Texas families. The suit requests that the court block state investigations of PFLAG families in Texas who are supporting their transgender children with medically necessary health care.

The lawsuit names Texas Gov. Greg Abbott, who issued a February directive stating that health care that is medically necessary for treating gender dysphoria should be considered a form of child abuse. The suit also names Department of Family and Protective Services (DFPS) Commissioner Jaime Masters and DFPS as defendants.

“For nearly 50 years, PFLAG parents have united against government efforts to harm their LGBTQ+ kids. By going after trans kids and their families, Gov. Abbott has picked a fight with thousands of families in Texas and across the country who are united as members of PFLAG National,” said Brian K. Bond, Executive Director of PFLAG National. “Loving and affirming your child and empowering them to be themselves is the highest calling of any parent, no matter your child’s gender. If it takes a court ruling to ensure that the law protects families who lead with love in support of transgender Texans, so be it.”

PFLAG provides confidential peer support, education, and advocacy to LGBTQIA+ people, their parents and families, and allies. With a nationwide network of hundreds of chapters—including 17 in Texas—PFLAG National works with families, schools, and communities to build safety and support for transgender youth.

In an earlier lawsuit brought by the ACLU, Lambda Legal, ACLU of Texas, and Baker Botts, the Texas Supreme Court upheld part of an appeals court order preventing DFPS from investigating parents who work with medical professionals to provide their adolescent transgender children with medically necessary health care. That case, Doe v. Abbott, is still pending.

While the Texas Supreme Court emphasized that neither Attorney General Ken Paxton nor Governor Abbott have the power or authority to direct DFPS to investigate the provision of essential and often lifesaving medical care for transgender youth as child abuse, the court limited the order blocking all investigations to the specific plaintiffs who filed suit.

“It is indefensible for any state leader to repeatedly attack trans Texans and weaponize the child welfare system against the loving families of transgender kids and teens.” said Adri Pérez, policy and advocacy strategist at the ACLU of Texas. “We will continue to fight against these baseless attacks on our community. Transgender kids deserve to have life-saving gender-affirming care in Texas, so that they might live safely to grow up to be transgender adults. During this Pride Month, we must take a stand against government leaders that are hellbent on stoking fear, and trying to criminalize transgender young people and their families.”

“Notwithstanding the clear language in the recent Texas Supreme Court ruling that Attorney General Paxton and Gov. Abbott do not have the power or authority to direct DFPS to investigate loving families who are providing medically necessary care for their transgender adolescents as child abuse, the agency seems determined to target these families and threaten to tear them apart,” Lambda Legal Senior Counsel Paul D. Castillo said. “With today’s filing, we are joining with PFLAG in working to protect all Texas families who simply want to make sure their children are safe, happy, and healthy. It is unconscionable that the state wants to interfere in that relationship.”

See here for some background, and here for a copy of the lawsuit, filed on behalf of two anonymous families plus the Briggle family. With the resumption of these investigations by DFPS, this is the only way for these folks to protect themselves. Based on what has happened so far I would expect them to get their restraining orders, and after that we’ll have to see what happens with the original case and its eventual appeals. Until we can get a better government in place, I hope we see more of these lawsuits, enough to cover everyone who will need it. The Trib has more.

Radack drops his redistricting lawsuit

From the inbox:

Former Harris County Commissioner Steve Radack voluntarily dismissed the lawsuit he filed against Harris County Commissioners Court alleging Commissioners Court violated the Open Meetings Act during county redistricting.

Below is a statement from Harris County Attorney Christian D. Menefee on the lawsuit:

“I’m glad this frivolous lawsuit was dismissed. The County ran a transparent, thorough redistricting process. My office will continue working with each of the Commissioners to ensure the transition process is as seamless as possible.”

The suit sought to have the new Commissioners Court map invalidated and alleged court members violated state law by not making the map public at least 72 hours prior to the meeting at which that map was approved.

As you may recall, first there was a lawsuit filed by Commissioners Cagle and Ramsey along with a couple of voters, which claimed that redrawing of Commissioners Court precincts was a voting rights violation because people who would have voted for Commissioner in 2022 would have to wait until 2024. It was dismissed by a Harris County civil district court judge on the grounds that the plaintiffs did not have jurisdiction to sue. A subsequent writ of mandamus to the Supreme Court was denied mostly on procedural grounds, as there would be no time to take any action as the primaries had already begun. The initial lawsuit is as I understand it pending an appeal to the First Court of Appeals, and SCOTx did not rule on the merits of the litigation so we could see a ruling against the county at some point in the future.

The Radack lawsuit was filed on December 31, shortly after the first lawsuit was dismissed by the district court. It claimed that commissioners violated the Open Meetings Act because they did not make public the map that ultimately was approved within 72 hours of the meeting. As far as I know, this suit never had a hearing in court. I checked with the County Attorney’s office and the pending appeal to the First Court is the only active litigation over county redistricting at this time. So there you have it.

UPDATE: Here’s a Chron story about it.

Maybe this is finally the end of that zombie same sex employee lawsuit

I dream a dream.

The Texas Supreme Court has declined to consider a challenge aimed at preventing the city of Houston from offering benefits to employees’ same-sex spouses.

The ruling is the latest blow to two Houston residents’ prolonged fight against a policy they consider an illegal use of taxpayer dollars.

Plaintiffs Jack Pidgeon and Larry Hicks have waged a legal battle against the policy since 2013, when the city, then led by former Mayor Annise Parker, granted government benefits to municipal employees’ same-sex spouses. Parker was the city’s first openly gay mayor.

On Friday, the state Supreme Court declined to review the pair’s case against the city, which originated nine years ago and has failed to find footing even in the conservative-leaning Texas judiciary.

[…]

Of the pair’s decade-long campaign to overturn her administration’s policy, Parker said Tuesday she hoped the court’s decision would quash future challenges.

“I didn’t do it to make a point,” Parker said of the policy. “I did it to be fair to all married city employees. Marriage should be marriage. Equal should be equal.”

See here and here for the previous updates. These guys and their stooge lawyer Jared Woodfill have more than proven that they really really hate gay people, but surely even this kind of rabid bigotry has its limits. The bell has rung, the lights are out, the doors have closed, and Elvis has left the building. Go find a less destructive hobby, fellas. I’ve heard gardening is nice.

A few remaining threads from the runoffs

It was, as noted, a smooth and easy night in Harris County, despite the folderol from earlier in the day.

Harris County election drama in the courts did not prevent voting officials from what could be a record speedy count.

At midnight, only two of the 520 ballots boxes used for Tuesday’s election were outstanding, meaning the vast majority were in the hands of officials who were rapidly counting them.

“I will be a happy girl if we get everything in by 1 a.m.,” said Isabel Longoria, Harris County elections administrator. “This is what happens with a well executed plan.”

By 11:30 250 Democratic and 246 Republican polling sites had turned in their ballots, while about 20 more were on site and awaiting a procedural check before officials signed off on the receipt. Each party had 260 locations, which they shared, meaning election counters at NRG Arena had 189 of the needed 520 ballot boxes.

About 150 cars snaked through the NRG parking lot earlier in the night, Longoria said, moving “slow and steady.”

On the official count, five ballot boxes were listed as outstanding at 11:45 p.m., which quickly ticked down.

See here for the background. Still no word from SCOTx as far as I know. It sure would be nice if this “easy night, returns posted in a timely fashion” became the new narrative.

There are still a couple of unresolved elections. CD15 is way too close to call.

With all precincts reporting on Tuesday night, Democratic primary candidate for Congressional District 15 Michelle Vallejo led the race ahead of Ruben Ramirez by only 23 votes. Of the 12,063 total votes reported on Wednesday morning, Vallejo received 6,043 votes and Ramirez received 6,020 votes district-wide.

Hilda Salinas, assistant director of the Hidalgo County Elections Department, said that the race was too close to call on Wednesday morning, with a final result expected on Thursday, June 2.

“We still have to wait for all the out of county ballots and mail-in ballots to come in,” Salinas said. “The Ballot Board will be meeting on Wednesday to finalize everything so that everything can be canvassed on Thursday.”

The canvassing process is the final step before certification of results, and it includes a careful tally of all ballots.

“As per Texas election code, there’s certain ballots that still have time to come in and be counted by our ballot board,” Salinas added.

Both campaigns declined to comment on Wednesday morning on whether a call for a recount could occur over the next week.

Vallejo issued a statement late Tuesday night: “Though the race is too close to call, we are heartened by the clear path to victory.”

A statement from the Ramirez campaign Wednesday morning stated, “Our campaign trusts in the democratic process and integrity of this election. We know that our election workers are doing all they can to get us a result, and we thank them for their tireless work.”

We’ll see what happens. CD15 is the closest district based on the new map and the 2020 returns, and it’s a big target for Republicans, with their candidate already rolling in cash. It would be nice to get this resolved quickly so the nominee can move forward.

And of course, there’s CD28, which is almost as close.

U.S. Rep. Henry Cuellar, the last anti-abortion Democrat in the U.S. House of Representatives, boldly declared victory just before midnight in his nail-biter primary runoff race. But his progressive challenger, Jessica Cisneros, refused to concede, as the race was separated by less than 200 votes with all counties reporting their votes.

“This election is still too close to call, and we are still waiting for every ballot and eligible vote to be counted,” she said in a tweet, shortly after Cuellar declared himself the winner.

Just before midnight in Texas, Cuellar led Cisneros by a mere 177 votes.

At the time he declared victory, no major news organization had called the race.

“Tonight, the 28th Congressional District spoke, and we witnessed our great Democratic system at work,” he said in a statement. “The results are in, all the votes have been tallied — I am honored to have once again been re-elected as the Democratic Nominee for Congress.”

With such a narrow margin, it is likely the race may not be decided for days. Mail-in votes from domestic voters can still be counted if they were postmarked by Tuesday and are received by counties by 5 p.m. Wednesday. The race is also within the margin that Cisneros can request a recount.

I’m ready for this race to be over. Just tell me who won so we can move on with our lives. I fully expect there will be a recount, however.

The election night experience

Let me start off by saying that my heart breaks for everyone in Uvalde. I cannot begin to fathom the pain and loss they are experiencing. I don’t know when we as a society will act to protect people from gun violence, but we cannot act quickly enough. We certainly didn’t for Uvalde, or Santa Fe, or El Paso, or any of too many other places to name.

For the subject that I wanted to be thinking about yesterday, we start with this.

Harris County voters are in for a long election night, with full election results in primary runoff races not expected until well into Wednesday. The night also could be politically turbulent as a dispute plays out over one line in the state’s election code.

One reason for the expected slow count Tuesday is the Harris County Republican Party’s decision to break with the county’s ballot delivery plan, according to Harris County Elections Administrator Isabel Longoria. After closing the polls, election judges will hand off ballots to law enforcement officers and deputized county staffers, who will drive the equipment to the central counting station at NRG Arena on the judges’ behalf. The Harris County GOP argues the plan violates state law, so they are advising their party’s election judges to drive the ballots to NRG themselves. The Texas Secretary of State’s office agrees with the GOP’s assessment.

An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process. In the past, the responsibility of transporting the ballots to the counting station has fallen to these election judges, the final task at the end of their 15-hour day.

Despite the GOP’s criticism, at least 40 Republican judges are choosing to participate in the county’s plan.

The dispute seems to be more about politics than the law, Martin Renteria, a Republican election judge in Harris County, said. He has no problem trusting a law enforcement officer to deliver the ballots, especially in a primary election where a Republican candidate is going to win no matter what.

“A Republican is going to win during the primary election. It’s going to be Republican versus Republican,” Renteria said. “It’s just illogical to me, and this is a part of the story that nobody talks about.”

[…]

Under state law, ballots should be delivered by either the election judge or an election clerk designated by that judge.

At a May 11 hearing with the state House Elections Committee to address delayed election results, Longoria argued the plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

“The election code does not speak to the delivery other than the presiding judge must turn over those election records to our election office. So it doesn’t speak to who has to drive to meet the other person to do so,” Longoria said.

The Texas Secretary of State’s office has disagreed with her interpretation and urged the county to change its plan.

“Harris County’s decision to allow volunteers to transport election records — including voted ballots — to the county’s Central Count location on Election Night is incompatible with the Texas Election Code and violates well-established chain of custody protocols spelled out under Texas law,” Texas Secretary of State spokesperson Sam Taylor said in a statement on Friday.

However, Gerald Birnberg, an elections attorney and General Counsel to the Harris County Democratic Party, questioned the Secretary of State’s logic, pointing out that its own office deputizes others to perform certain duties.

“The same way that the Secretary of State is deputizing these people in his office to speak on behalf of the Secretary of State on statutory matters, to perform his statutory duties, the elections administrator is deputizing individuals to carry out duties and responsibilities and functions that are otherwise prescribed to be discharged by the elections administrator,” Birnberg said.

[…]

The Harris County Elections Administrator’s office maintains the Secretary of State’s office knew about the strategy and raised no objections when they implemented the ballot delivery plan during the May 7 election.

In a statement, Longoria said: “In April, the EA’s Office discussed the May 7 law enforcement and county driver program with the Secretary of State’s Office’s Managing Attorney of the Elections Division, specifically requesting guidance and recommendations. The SOS raised no concerns, legal or otherwise, with the program. Further, the EA’s Office discussed the plan for both May elections with both political parties as early as April 7. Both parties had the opportunity to ask questions, review the chain of custody document, and raise issues. Neither party raised concerns.

In fact, the first time any concerns were raised occurred during a public meeting May 11 at the Election Committee Hearing by the Secretary of State’s Office. One week later, just six days from election day, the Harris County Republican Party notified us that its judges would not participate in the program.”

See here for the background. Later in the day, we got this.

With voters walking into polling places and ballots set to arrive at NRG Arena in a few hours, Harris County’s Republican Party has challenged the process election officials will use to transfer ballots from locations to the central counting center, citing concerns with handing the machines over to anyone but precinct judges.

In the 18-page filing to the Texas Supreme Court around 2 p.m. on Tuesday, the local Republican party says despite assurances that election officials have it under control, state election law and past experience make them wary to hand over ballots to emissaries so they can ferry to a central location.

Cindy Siegel, chairwoman of the Harris County GOP, said officials are impeding on the democratic process.

“They are trying to make it as difficult as possible, and talking people out (of driving ballots themselves) by warning them there will be long lines,” Siegel said. “They are scaring people into creating this system that isn’t even legal.”

Lawyers for the GOP argue the county is ignoring state election laws and breaking the mandatory chain of custody for ballots.

“An essential component of the central counting station is the physical delivery of sealed ballot boxes and access to the central counting station is necessary (for) that process to take place,” the filing states.

The petition asks the high court to order Harris County to allow election judges to drive their own precinct ballots to the central counting center at NRG Park.

The request drew a fast rebuke from Democratic Party leaders and Harris County Attorney Christian D. Menefee.

“Their leadership has known about the County’s election day plans for some time, yet they waited until 6 hours before the polls close to now ask a court to throw the plans out the window and put residents’ votes at risk,” Menefee said in a statement. “And in their lawsuit, they flat out misrepresent the county’s plans to the court, making several statements that they know are demonstrably false.”

[…]

“(Longoria’s) office successfully used constables in the May 7 election, and the GOP had no problem at that time,” said Odus Evbagharu, chairman of the Harris County Democratic Party. “Now, someone wakes up on Election Day and suddenly thinks law enforcement officials and deputized election officers are an issue?”

Siegel said that is precisely why the GOP is suing.

It is the May 7 election, and widespread problems that day, that prompted the concerns in the first place. She said Republican judges only learned the day before that election that they would have to hand ballots over at polling sites, rather than drive them downtown themselves. In a handful of cases, no one came to pick up the ballots — leading the election judge to take them home — or couriers failed to drop them off in a timely manner. As a result, the county did not complete its count until Sunday morning, even though fewer than 115,000 ballots had been cast.

Again, I didn’t have a problem with the May 7 reporting. There’s clearly a difference of interpretation of the law here, and if that can’t be resolved on its own then a courtroom is the proper venue. I have a hard time believing that this couldn’t have been litigated before Tuesday afternoon, however. I started writing this post at 8 PM, and as of that time there had been no ruling from SCOTx. I don’t know when they plan on ruling, but at some point it just doesn’t matter.

UPDATE: It’s 10:30 PM, more than a third of the Tuesday votes have been counted, and I see nothing on Twitter or in my inbox to indicate that SCOTx has issued a ruling. So let’s think about this instead:

Well said. Good night.

UPDATE: Here’s a later version of the story about the GOP’s lawsuit over the results delivery process. I still don’t see any mention of a decision being handed down. And for all of the fuss, final results were posted at 1:26 AM, which seems pretty damn reasonable to me. The midnight update had about 98% of ballots counted on the Dem side and about 95% on the GOP side – 70,016 of 72,796 Dem votes and 105,486 of 116,100 GOP votes. Seriously, this was a fine performance by the Elections Office.

Debtors’ court, part 2

Also not good.

One day last September, while trying to pay for groceries, Leslie Alvarez got the shock of her life. All the money in her bank account had disappeared.

The Houston single mother called her bank. An employee told Alvarez that her accounts had been placed on a legal hold. A person she did not know had been authorized to remove money from her accounts.

“I had to tell my kids they had to wait awhile so I could go make money to get what they needed,” she said.

Alvarez was forced to pay up on a $1,500 cash loan as part of a debt judgment issued against her in a Harris County civil court.

Texas doesn’t allow people’s wages to be garnished to pay off debts unless it is to collect child support. By law, however, courts can designate special officers, known as turnover receivers, to force payments by freezing or seizing bank accounts. The legal process became popular in Harris County but has been used all over the state more commonly in recent years, officials say.

“This is the only real way a debt collector can hurt you,” said Craig Noack, a creditor’s attorney in San Antonio who also serves as a court-appointed receiver in Texas.

At issue, though, is whether courts have adequate oversight to ensure a fair process.

Each year, tens of thousands of Texans are subject to a bank seizure as a result of a default judgment that was declared against them because they didn’t show up in court to fight a lawsuit over a debt.

But here’s the dilemma: Most debtors don’t know that they can have their bank accounts cleaned when a debt collector wins a default judgment against them unless they claim exemptions for certain sources of funds, such as child support, Social Security, unemployment benefits and retirement funds. Alvarez had child support payments in her accounts when they were seized.

Just this month, the Supreme Court of Texas took its first steps to establish parameters that would ensure that debtors are informed of their rights to claim exemptions. Under new rules, which took effect May 1, debt collectors must provide at least 17 days for debtors to inform courts that they have funds or property that is exempt from seizure.

“The purpose of these rules and forms is to try to help even out a little bit the playing field so that the debtors get more information,” Texas Supreme Court Chief Justice Nathan Hecht said.

[…]

In the Houston region and other large Texas counties, default judgments rose by 86 percent between 2012 and last year, data show.

“As long as people don’t respond, debt collectors can get a default judgment,” said Ann Baddour, director of the fair financial services project at Texas Appleseed, a consumer advocacy group in Austin. “There’s just this motivation to move forward and sue.”

Even the Texas Creditors Bar Association, a statewide organization of attorneys that engages in debt collections, says it wants to make sure debt collectors don’t take money that is protected by law.

They support the notifications, said Noack, who represented the Texas Creditors Bar Association in discussions before the Supreme Court Advisory Committee about the new rules.

“You’re not going to find a creditor’s attorney out there who wants to take somebody’s Social Security,” he said.

Yet, among the many concerns consumer advocates say still must be addressed is the lack of oversight in Texas courts regarding the appointment of the court officers or turnover receivers.

Texas courts have no way to prevent abuses — or even mistakes — because judges are not required to track their appointments or keep periodic reports on the status of seizures, Houston consumer attorney Benjamin Sanchez said.

“You have these receivers who are doing things but not necessarily reporting back to the court,” Sanchez said.

See here for the previous entry. I hope we can all agree that no one should have their bank account drained as the result of a default judgment where they hadn’t known they needed to appear in court. There needs to be a lot more oversight here, and that’s first a job for the Legislature and then a job for the court system. One possible aspect to a solution might be a public defender system for civil litigation, modeled on the same system for criminal defendants. This is an idea I’ve seen advocated by others, and it makes sense on the principle that everyone should have the right to a lawyer to represent them in court. I’m no expert, I’m just throwing out an idea here. Whatever the case, there’s a real need for reform.

DFPS to resume investigating families of trans kids

Gross and discouraging.

The state of Texas will restart its abuse investigations into families with transgender kids after a recent court ruling that lifted a statewide injunction on such probes.

In a statement on Thursday, the Texas Department of Family and Protective Services said the agency would investigate all allegations of abuse. The statement, while not addressing the investigations into medical treatments for trans youth, indirectly indicated that these probes will now continue.

“DFPS treats all reports of abuse, neglect, and exploitation seriously and will continue to investigate each to the full extent of the law,” the statement read.

Current state law does not explicitly define gender-affirming medical treatments, such as puberty blockers and hormone therapy, as child abuse. A DFPS spokesman did not comment when asked if the agency plans to continue investigating such treatments as child abuse.

Age appropriate and individualized medical treatments for trans youth, including the ones Texas Attorney General Ken Paxton has called abuse, are supported by the state and nation’s largest physicians groups including the American and Texas Medical Associations. These groups have opposed the state’s abuse investigations and other efforts to block or alter gender-affirming care for minors.

The state’s announcement came just days after the Texas Supreme Court ruled that the attorney general and Gov. Greg Abbott, who had directed the agency to investigate certain medical treatments for trans adolescents as child abuse, had no authority to do so. It put control over these probes back into the hands of protective services, which opened at least nine investigations into families with transgender children since the governor issued his directive in February.

One investigation into an agency employee who has a transgender daughter will remain paused while the family fights to overturn the abuse policy, the ruling stated.

[…]

Brian Klosterboer, an attorney with the ACLU of Texas who is on the team representing the unnamed DFPS employee, said the state’s decision to reopen the cases is unfortunate and unlawful. He said his team believes that the high court’s decision removes any responsibility for Texans to report trans youth getting treatments.

“We are going to be closely monitoring what the agency does. We would encourage families that have any reason to believe that they have an investigation to seek legal help,” Klosterboer said.

“Abbott’s letter and Paxton’s opinion did not change Texas law,” he added. “Gender-affirming health care is still legal in all 50 states.”

See here for the previous entry. The initial litigation is still ongoing – as is so often the case in these battles, the issue is over whether or not the law or in this case executive order can be enforced while the lawsuit is being heard – so there may still be a statewide injunction at some point. There’s also a clear path for other families to file similar lawsuits to get injunctions for themselves, similar to what abortion providers and funds were facing with SB8. It’s still a mess and a huge burden for these people that have done nothing wrong and just want to be left alone. And it’s another reason to vote these guys out in November. The Trib has more.

SCOTx ponders the questions the Fifth Circuit asked it about SB1

Seems like there’s not that much in dispute, but there’s always something.

Texas Supreme Court justices questioned during oral argument if they should answer certified questions from a federal appeals court about challenges to an election law that created penalties for soliciting voters to use mail-in ballots.

The case, Paxton v. Longoria, concerns a First-Amendment issue over how provisions in Senate Bill 1, a 2021 law, could lead to civil penalties and or criminal prosecution of county election administrators and volunteer deputy registrars.

During a Wednesday hearing before the court, the foremost issue that appeared to concern the justices was whether they should provide an advisory opinion to the U.S. Fifth Circuit Court of Appeals at all.

Since the case has progressed from federal district court to the Fifth Circuit and on to the state Supreme Court, the parties positions have changed and the justices find themselves in the unusual position of being asked to answer three questions where there is very little if any disagreement between the parties.

The Fifth Circuit asks the justice to answer whether a volunteer deputy registrar, or VDR, is a public official under the Texas Election Code; whether speech the plaintiffs intend to use constitutes “solicitation” within the context of the state code; and whether the Texas Attorney General has the power to enforce that code.

The plaintiffs are Harris County Elections Administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who assists people with mail-in ballots in Travis and Williamson counties.

The state, represented by Lanora Pettit, a principal deputy solicitor general with the Office of Attorney General, acknowledged in her brief that volunteer deputy registrars are not public officials subject to prosecution; the term “solicit” does not include merely providing information but instead requires “strongly urging” a voter to fill out an application that was not requested; and the Attorney General is not a proper official to seek civil penalties.

Sean Morales-Doyle of the Brennan Center for Justice at New York University School of Law submitted a brief that was in line with Pettit on the first and third questions, but had a nuanced distinction on the question of solicitation’s meaning.

Justice Jeff Boyd asked Morales-Doyle, “I’m just not sure why the dispute matters. If everybody agrees that the VDR is not a public official, so therefore has no standing, everybody agrees that Ms. Longoria has not … indicated any intent to violate in Williamson County, and everybody agrees the attorney general has no enforcement authority , where’s the case or controversy?”

Morales-Doyle said that Morgan began the case with a reasonable fear of prosecution and while the state has indicated a disinclination to prosecute she does not know the position of the Travis County district attorney, nor what future district attorneys would do.

If the questions are not answered, she would therefore still need to have the temporary injunction in place, he said.

On defining solicitation, because a felony criminal prosecution is possible, Justice Jane Bland asked if the state should limit its meaning to the penal code’s definition, which would restrict the term to situations where a public official induces someone to commit a criminal act.

Morales-Doyle supported that approach, noting that every criminal solicitation statute that he is aware of applies only to solicitation of criminal conduct.

“What is troubling everybody—and apparently troubling the attorney general who wants to give a definition of solicitation that I’m not aware existing in any criminal code—is the absurd result that someone could be held criminally liable for encouraging their fellow citizen to vote,” Morales-Doyle said.

On rebuttal, Pettit argued that sanctionable solicitation is not limited to criminal inducement. She cited the example of barratry, where lawyers unlawfully solicit clients for profit.

See here for the background. The bottom line is that the plaintiffs have asked for a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The motion was granted by a district court judge and then put on hold by the Fifth Circuit. I think the Fifth Circuit is evaluating whether to put the injunction back in place while the rest of the initial lawsuit is litigated, but we are in the weeds here and I don’t have certainty about that. Let’s see what SCOTx says first and maybe that will clue me in. (Any lawyers out there that want to help, by all means please do.)

SCOTx issues mixed ruling on transgender child abuse investigations injunction

We’ll just have to see what happens next.

Texas’ child welfare agency remains blocked from investigating the family of a transgender teen that sued the state in March, but can once again investigate other families that provide gender-affirming care after the Supreme Court of Texas struck down a statewide injunction Friday.

Though it overturned the injunction on procedural grounds, the high court raised questions about why the Department of Family and Protective Services opened these investigations in the first place. The court affirmed in Friday’s ruling that neither Attorney General Ken Paxton nor Gov. Greg Abbott had any grounds to direct the agency’s actions.

[…]

“The Governor and the Attorney General were certainly well within their rights to state their legal and policy views on this topic, but DFPS was not compelled by law to follow them,” Friday’s ruling reads. “DFPS’s press statement, however, suggests that DFPS may have considered itself bound by either the Governor’s letter, the Attorney General’s Opinion, or both. Again, nothing before this Court supports the notion that DFPS is so bound.”

The ruling does note the myriad “informal mechanisms” through which elected officials can influence a state agency, but “ultimately, however, one department or another has the final say.”

[…]

In this case, the ruling said, DFPS was responsible for deciding whether these investigations aligned with current state regulations — and will now have to decide whether to continue these investigations and allow new ones to be opened.

DFPS employees have told The Texas Tribune that agency leadership has acknowledged that these investigations do not meet the current requirements for child abuse and have said policy would need to be generated to match the governor’s directives.

In March, a district judge granted an injunction blocking the state from continuing these investigations or opening new ones. Paxton appealed that decision to the Third Court of Appeals, which reinstated the statewide temporary injunction.

He then petitioned the Supreme Court of Texas to review that appeal. In Friday’s ruling, the high court agreed with Paxton that the appeals court overstepped — while the appeals court can reinstate an injunction if it “preserves the parties’ rights,” they cannot reinstate a temporary injunction of any nature.

In this case, the justices ruled, the “parties” are the family that sued the state initially — not all parents of all transgender children.

Ian Pittman, an Austin attorney representing two families of transgender children that are under investigation for child abuse, said the injunction had allowed his clients to “breathe a sigh of relief” while their investigations were paused. Although the investigations can resume, he’s hopeful that DFPS will now close out the cases.

“This ruling reaffirms that [DFPS Commissioner Jaime Masters] acted improperly when she acknowledged the directive and said they would follow it,” he said. “She was abdicating her responsibilities as commissioner to a political stunt that has no legal authority.”

If DFPS does not close out the cases, he expects other families may consider bringing suits to get any investigations against them similarly blocked.

See here and here for the most recent entries. There were multiple written opinions plus some concurrences and dissents, so just go here and look for case 22-0229 if you want to slog through them. I’ve seen varying reactions to the ruling and will link to them, but this Daily Kos piece is the closest to my own feelings.

Now, some folks are celebrating Friday’s ruling as a win, as the court does explicitly say the governor does not have the “authority to investigate, prosecute, or impose reporting requirements regarding child abuse allegations.” The court also pointed out that neither Abbott nor Paxton could “bind” the Department of Family and Protective Services’ (DFPS) “investigative authority.”

This all sounds encouraging, but again, the court didn’t rule on the ethics of the situation, but whether or not the lower courts were overstepping with the injunction holds. So … What happens now?

DFPS will decide whether or not to continue investigations, as well as whether or not they will open new ones. According to this ruling, the agency was responsible for determining if the investigations met state regulations, to begin with. Per The New York Times, it is not clear whether the ruling will cause the agency to resume investigations right away (or at all) or not.

If the department closes the cases, we can breathe a sigh of relief. If it doesn’t close the cases? It’s likely many more parents will sue the state.

For me? I’m taking it as a cautious win, but I’m not outright celebrating until the agency confirms those cases are closed and that more aren’t on the way.

I’m open to persuasion on this, but until and unless someone changes my mind, I’m waiting to see what DFPS does next, and hoping that as many parents of trans kids are preparing to file their own suits as possible, just in case. Here are statements from the ACLU and Harris County Attorney Christian Menefee, and the Chron, the Texas Signal, and the Texas Observer have more.

Providers’ federal lawsuit against SB8 is officially buried

From last week.

The 5th U.S. Circuit Court of Appeals on Tuesday ended a legal challenge to Texas’ nearly total ban on abortion brought by providers across the state, closing out a contentious court battle that reached the U.S. Supreme Court.

The appeals court dismissed the remaining challenge in the suit after the Texas Supreme Court in March said state licensing officials are not responsible for enforcing the abortion ban and therefore cannot be sued.

A three-judge panel of the 5th Circuit in January asked the state’s high court to resolve this central question to the case, an unusual move made at the request of attorneys for the state that was expected to significantly delay or end the challenge.

[…]

In December, a divided U.S. Supreme Court dismissed all but one challenge in the lawsuit brought by abortion providers. Justices allowed a narrower case, targeting state licensing officials, to proceed in Texas courtrooms.

But Tuesday’s action by the 5th Circuit officially dismisses the case.

It was all over but for the shouting when the State Supreme Court ruled that state medical licensing officials do not have authority to enforce SB8, but the real villain as always was the Fifth Circuit, which engineered the result it wanted. Like I said, the fix was in from the beginning.

As the story notes, there are two more active lawsuits to watch, one by abortion funds against several anti-abortion organizations and individuals, and one by Wendy Davis. I feel like the former is more promising than the latter, but who knows. A state judge had previously ruled that SB8 was unconstitutional but for reasons still unclear declined to issue an injunction against it; I suppose that could change at some point. Until then, here we are.

UPDATE: Yes, I’m aware of the leaked draft opinion that eviscerates Roe v Wade. I maintain that the Fifth Circuit is the prime villain of this story, given how they completely disregarded normal procedures, but SCOTUS’ villainy cannot be overstated either.

Debtors’ court

This is not good.

In this court and others in Bexar County, debt collection lawsuits more than doubled from 2012 to 2020.

“I’m trying to manage this behemoth, but there are some guidelines I have to follow as well,” said Roger “Rogelio” Lopez Jr., justice of the peace for Bexar County Precinct 4, who operates out of the Loop 410 courthouse.

Similar scenes are playing out from Houston to Dallas to Fort Worth as debt collectors sue a skyrocketing number of Texans over claims of unpaid credit cards, medical bills, student loans and other debts, a Houston Chronicle examination has found.

Debt collection lawsuits filed statewide have exploded by 73 percent from 2012 to 2021, according to a Chronicle analysis of data from the Texas Office of the Court Administration.

For the first time in history, the 374,000 debt lawsuits filed in the Lone Star State last year made up nearly half of all civil cases in Texas, which include traffic tickets, landlord evictions and small claims such as disputes between neighbors. The crush of debt cases raises concerns that overwhelmed Texas civil courts can’t adequately review each lawsuit and deliver justice while juggling higher-priority cases, consumer advocates say.

That means judges face pressure to move debt lawsuits quickly to keep their dockets manageable. With only minutes to review cases, judges can miss important details, consumer advocates say. The rapid-fire justice puts a sharp focus on whether defendants can get a fair shake, said Mary Spector, professor of law at Southern Methodist University in Dallas.

“Any public perception that the courts are merely rubber-stamping for the creditors is bad for the system,’’ said Spector, who directs a law clinic that works on behalf of consumers in debt litigation.

Texas adopted key provisions that have spurred debt collectors to crank out more cases in recent years.

From 2012 to 2020, state lawmakers passed legislation that gave debt collectors more flexibility to file cases in justice of the peace courts, where filing costs are lower and it takes less time to move cases on the docket. The changes, which included actions by the Supreme Court of Texas to revamp the debt collection process in civil courts, ultimately made it cheaper and faster for debt collectors to win judgments, consumer advocates said.

The Supreme Court of Texas, which is responsible for adopting processes and rules to ensure that state courts are efficient and fair, has been alarmed by the rise in caseloads, Chief Justice Nathan L. Hecht told the Chronicle.

“You need to worry about it,” Hecht said. “This is where the public meets the justice system.”

To address those concerns, the Legislature ordered the state Supreme Court to publish new rules that will require debt collectors to provide additional notification to debtors of their rights, he said. The rules take effect May 1.

Big corporations have high-powered attorneys to manage their interests. When they have a problem, they can ask for help from the Supreme Court. Hecht said they also can lobby the Legislature to prompt changes in state law.

“But this is about the little guy,” he said. “What the justice system has to do is to provide justice for the people who come to it. We want everybody walking away from the court saying, ‘Well, thank God for the court. I may have lost, you know, I wish that had not happened, but I got a fair shake.’ That’s why it’s so important to work on these cases.”

A Chronicle review of dozens of court documents, observations of legal proceedings and an examination of statewide data found that:

  • Last year, 45 percent of lawsuits filed in the state’s civil courts were against Texans for debt, according to data supplied to the Chronicle by the Texas Office of the Court Administration, the state agency that collects the data and operates under the direction of the Supreme Court. In 2017, debt lawsuits represented 30 percent of all civil filings.
  • Harris County saw a similar trend. Last year, debt collectors filed nearly 68,000 lawsuits in the county, an increase of 111 percent from 2015.
  • Cases settled by default judgment have increased since 2012. That means more cases are decided with defendants not present to fight a claim, and the court cannot weigh both sides equally before making a judgment. The number of default judgments in the Houston region and other large Texas counties totaled nearly 74,000 cases in 2021, an increase of 86 percent from 2012.
  • No court in the state has seen a more dramatic increase in debt suits than justice of peace courts. JPs, as they are known, preside over weddings, misdemeanors and truancies. Many JPs are not lawyers. Of the hundreds of thousands of debt collection lawsuits filed in Texas in 2021, 80 percent were in JP courts.

There’s a lot more, so read the rest. Hopefully, the new rules will help, but this seem like a much deeper issue than that. Obviously, a lot of this is societal – poverty, access to attorneys, the ability to take time off from work to attend court hearings, and so on – and there’s not much the courts can do about that. But they can do their part to make sure the playing field inside the courthouse is level, and they need to do that. And the Lege needs to revisit this as well.

Abbott and Patrick ask SCOTx to take up Paxton’s whistleblower appeal

They sort of have a point, but they should still butt out.

Best mugshot ever

Gov. Greg Abbott and Lt. Gov. Dan Patrick on Monday urged the Supreme Court of Texas to take up Attorney General Ken Paxton’s appeal to throw out a whistleblower lawsuit against him.

The appeal is Paxton’s latest attempt to avoid a trial after eight of his former top deputies accused him of bribery and abuse of office in late 2020. Within seven weeks of their complaint to authorities, all eight had either been fired or driven to leave the agency. Four of the fired employees later filed a whistleblower lawsuit against Paxton saying they were fired in retaliation for their complaint and have asked to be reinstated to their jobs. Paxton denies wrongdoing.

Paxton, a Republican, has fought that lawsuit, claiming that the state’s whistleblower law — which covers public employees, appointed officials and governmental entities — does not apply to him because he is an elected official. A district court and an appeals court have ruled against Paxton’s lawyers and said the lawsuit could move forward. But in January, Paxton’s lawyers asked the Texas Supreme Court to reconsider the matter and throw out the case.

Paxton’s lawyers argue that allowing whistleblowers to sue the attorney general for firing them could hamper the executive power that the state constitution gives him. It is the same argument two lower courts have already rejected after hearing from the whistleblowers’ lawyers, who argue that siding with Paxton would take away whistleblower protections for employees trying to report the misconduct of an elected official.

Lawyers for the governor’s and lieutenant governor’s offices did not indicate whether they agree with Paxton’s argument. The two Republican state officials filed friend of the court briefs asking that the high court take up the case because it is relevant to statewide governance and to the powers of an executive office under the Texas Constitution. Because of that, lawyers for the offices argued the case should be considered by a statewide court and not by the local courts that have already rejected Paxton’s argument.

The two lower courts were filled by Democrats. The Texas Supreme Court is made up of nine Republicans.

See here for the background. I don’t think it’s unreasonable to argue that the state’s high court should weigh in on this question. They could, I suppose, simply issue an order denying the appeal request on the grounds that they’re fine with the lower courts’ rulings. Most cases never get close to the Supreme Court. Indeed, one of the themes I saw in the judicial Q&A responses I got from 1st and 14th Court of Appeals candidates in 2018 and 2020 was precisely that those courts are often the last word on a lot of consequential cases. SCOTx has no obligation to take this up. It’s easy to see why they might want to, but in the end it would be unremarkable if they didn’t.

It’s also easy to see that what Abbott and Patrick want is for a court full of Republicans to have the final word, since I’m sure they don’t consider the lower courts to be valid in the same way. One could perversely assert that only a rejection from the all-Republican Supreme Court will settle this matter in a way that might shut up Paxton and his sycophants, though perhaps the Court of Criminal Appeals would beg to differ.

One more thing:

An attorney whose firm represented Paul, the friend and campaign donor to Paxton, also urged the Supreme Court Monday to weigh in on the case, saying it “presents far reaching consequences for our state government.”

Statewide officials like Paxton need to be able to fire or retain employees based on whether they help advance their goals, wrote Kent Hance, founding partner of the Austin-based law firm Hance Scarborough.

“Inferior officers are carefully chosen by an elected official to provide competent policymaking advice in line with the policymaking goals as defined by the elected official,” Hance wrote. “This works well when the goals are in line with the advice, but what happens when they are at odds?”

A political action committee for Hance’s firm — the HS Law PAC — donated $25,000 to Paxton in June 2020, after he intervened in litigation involving Paul, as Hearst Newspapers reported.

Lawyers for one of the whistleblowers pointed to the donation this week.

“Only somebody as shameless as Ken Paxton would get a lobbyist whose firm donated $25,000 to Paxton while it was representing Nate Paul companies to ask the Texas Supreme Court to re-write the Texas Whistleblower Act,” lawyers TJ Turner and Tom Nesbitt said in a statement. They declined to comment on the briefs by Abbott and Patrick.

Hance did not immediately respond to a request for comment, but managing partner Jay Stewart, who is trustee of the PAC, has told Hearst it operates independent of the firm’s litigation section and that the donation had nothing to do with any cases.

Yeah, that’s a pretty good summary of Texas politics. Political donations never have anything to do with getting the political outcome we prefer. Who would ever think such a thing?