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Fifth Circuit largely upholds bail practices ruling

Good.

The 26-page opinion by Judge Edith Brown Clement affirms the majority of Chief U.S. District Judge Lee H. Rosenthal’s landmark ruling, including her finding that the county’s bail policies violated the due process and equal protection clauses of the U.S. Constitution.

However, Clement and fellow judges Edward C. Prado and Catarina Haynes disagreed with Rosenthal’s analysis on three matters and sent the case back for her to reconsider those elements.

They concluded Rosenthal was overly broad in her analysis of the due process violation and in extending no-cash bail to all indigent defendants. They found her demand that qualified defendants be released within 24 hours was “too onerous,” opting instead for a 48-hour window.

They also ordered Rosenthal to fine tune how officials assess a defendant’s ability to pay bond.

County Commissioner Rodney Ellis, a supporter of the lawsuit who traveled to New Orleans to hear the oral arguments in the case, called it “a significant victory for justice.”

“With this decision, the conservative 5th Circuit is telling Harris County that it’s unconstitutional to have two justice systems: one for the rich and one for the poor,” Ellis said. “Yet Harris County has already spent more than $5 million defending a morally and legally indefensible bail system that violates the Constitution and punishes people simply because they are poor.”

[…]

Attorney Neal Manne, whose firm, Susman Godfrey, joined in filing the lawsuit, praised the decision.

“I am absolutely thrilled by the ruling, which is a huge and historic victory for our clients,” he said.

The appeals judges found that the county had acted mechanically in reviewing bond decisions, failing to take the time to consider economic factors. The ruling summarized Rosenthal’s equal protection findings by imagining the outcomes for two hypothetical misdemeanor defendants, identical in every way — facing the same charge, from the same criminal backgrounds, living in the same circumstances — except that one was wealthy and the other indigent.

While the wealthy arrestee was less likely to plead guilty and get a shorter sentence or be acquitted, and less likely to pay the social costs of incarceration, it found, the poor arrestee, “must bear the brunt of all of these, simply because he has less money than his wealthy counterpart,” they wrote.

See here for the previous update, and here for a copy of the ruling. This was basically how I read it based on the coverage of the arguments. I agree with attorney Manne and Commissioner Ellis that this is a great ruling, and that it’s way past time to settle this effing thing.

The Trib adds on:

But the ruling wasn’t a total win for the plaintiffs. The appellate court still said Rosenthal’s ruling was “overbroad” and asked her to narrow some of the orders against the county.

Perhaps of most significance, the appellate court pushed back on Rosenthal’s order for the sheriff to release at no cost all misdemeanor defendants who claim they can’t afford their bond within 24 hours of arrest, regardless of whether they’ve had their bail reviewed or set at a higher cost. The appellate judges appeared suspicious about Rosenthal’s time limit in their hearing and said Wednesday that it was too strict.

In sending the case back to Rosenthal for a modified ruling, the higher court suggested an injunction that demands that poor defendants who claim they can’t afford their bail be entitled to a hearing within 48 hours of arrest where they can argue for a lower or no-cost bond.

If a judicial officer declines to lower the bond at this hearing, he or she would have to put the reason for their decision in writing, and the arrestee would then get a formal bail review hearing before a judge. If, after those 48 hours, there are no records showing an individualized bail review process took place, the sheriff could release the defendant at no cost.

‘The 48-hour requirement is intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention,” Clement wrote.

I’m fine with that, and I expect the plaintiffs will be as well. Mark Bennett sums it up.

It’s time for the fourteen criminal court at law judges to declare victory and go home. ((Just between you and me, this opinion is a rout for the judges. The changes are small, and the current injunction remains in place until Judge Rosenthal modifies it.))

Indeed. I really hope this time they listen.

Lawsuit over how judges are elected statewide goes to trial

Hey, remember that lawsuit that argued that statewide elections of judges was discriminatory against Latinos? The case is being heard in court this week.

El Paso lawyer Carmen Rodriguez and Juanita Valdez-Cox, a community organizer in the Rio Grande Valley, live hundreds of miles from each other, but they share an electoral grievance that could upend the way Texans fill seats on the state’s highest courts.

For years, Rodriguez and Valdez-Cox have noticed that campaigning for the Texas Supreme Court and Court of Criminal Appeals hardly reaches their corners of the state. And it’s left them feeling so neglected and undermined as voters that they decided to the sue Texas over the statewide election system it uses to fill seats on those courts.

“I think every vote should count and should have equal weight as much as possible,” Rodriguez testified in federal court on Monday on the first day of a week-long trial in a case challenging the state’s current election method for the Texas Supreme Court and Court of Criminal Appeals. But those campaigning for those seats hardly make their case to El Paso voters, Rodriguez added, so “they don’t seem to need our vote.”

That sentiment is a key component to a lawsuit filed on behalf of Rodriguez, six other Hispanic voters and Valdez-Cox’s organization, La Union del Pueblo Entero, that alleges the statewide method of electing judges violates the federal Voting Rights Act because it dilutes the voting power of Texas Hispanics and keeps them from electing their preferred candidates.U.S. District Judge Nelva Gonzales Ramos has set aside the rest of the week for the trial during which the plaintiffs’ lawyers will work to convince Ramos that Texas should adopt a single-member approach — similar to those employed by some city councils and school boards — that would carve up districts geographically in a way that could allow for Latino-majority voting districts.

“The courts cannot be the great equalizer of our social fabric when one group — Latinos — are disadvantaged in the election process,” Jose Garza, an attorney representing the voters, said in his opening statement Monday.

Throughout the day, Garza and other attorneys representing the voters suing the state called up individual plaintiffs and election law and history experts to help make their case that the state’s current system for electing Supreme Court and Court of Criminal Appeals judges “submerges Latino voters” in a manner that violates Section 2 of the federal Voting Rights Act, which prohibits an electoral practice or procedure that discriminates against voters.

Lawyers for the Texas attorney general’s office, which is representing the state in court, will offer up their own experts later in the week in hopes of dispelling those claims. The state’s lead attorney, Patrick Sweeten, on Monday provided a preview of their arguments when he described their defense and the plaintiffs’ arguments as “two ships passing in the night” because the state’s evidence will show that the plaintiffs cannot meet their legal burden of proving a Section 2 violation.

The state is also expected to call up an expert witness who will argue that single-member districts would “disempower more Hispanic voters than they could potentially empower” because they would only be able to vote for one seat on each high court instead of casting a ballot for all 18 seats.

Plaintiffs’ lawyers spent a large portion of the day arguing that that point would only hold up if you assumed Latinos had the opportunity to elect their preferred candidates to begin with.

See here and here for some background. The plaintiffs survived a motion to dismiss a few months ago. This story was from Tuesday, but I haven’t seen anything more recent so I can’t say how the trial is going. Seems like a heavy lift to me, and there’s an argument to be made that districting the courts would put a ceiling on the number of Latinos that could be elected. You have to figure that sooner or later things will be different for statewide races. That said, I very much understand not wanting to wait, though of course taking a court case to completion will take some number of years. We’re at the start of that process, and we’ll see how it goes. Courthouse News and KUT have more.

Update on the Dallas ballot lawsuit

Still waiting on this.

Dallas County Republicans have filed a motion to remove Judge Eric Moyé from overseeing a lawsuit that would remove 127 Democrats from the 2018 general election ballot.

Moyé, a Democrat, has refused to step aside in the case, according to court documents. His decision is unlike one he made in an earlier case about ballot eligibility, when he recused himself.

Elizabeth Bingham, a lawyer for the Dallas County Republican Party, said it “boggles the mind” that Moyé did not remove himself from the case, given his ties to the Democratic Party and that he’s done so on similar cases.

Moyé, who is not up for re-election, has used Jeff Dalton as his political consultant. Dalton is the consultant for numerous Democrats on the 2018 election ballots.

“I am perplexed that he won’t recuse himself,” Bingham said.

But Buck Wood, a lawyer for 16 of the candidates who would be affected by the suit, said judges sometimes recuse themselves because of the political optics. But he said there’s no law requiring them to do so if they are in situations similar to Moyé’s.

“He said he’s not going to do it,” Wood said. “He’s certainly not required by any statute to recuse himself.”

[…]

A hearing on the case is scheduled for Feb. 16, but the case won’t move forward until Regional Administrative Judge Mary Murphy sets proceedings on whether Moyé should continue on the case.

See here for some background. I mean, if having a Democratic judge is a conflict of interest, then wouldn’t having a Republican judge be one, too? Maybe we’ve finally found a compelling-to-me argument for changing our system of electing judges. Good luck sorting this one out. Whatever ruling we eventually do get will be for the November election, not the primary. Sorry to burst your bubble if you were hoping for a quick resolution.

One more judge for bail reform

Once again, credit where credit is due.

A long-serving Harris County Republican judge has broken with 14 Republican colleagues, withdrawing from the county’s appeal in a landmark federal lawsuit challenging its bail system for discriminating against poor, low-level offenders.

Criminal Court-at-Law Judge Mike Fields, who has presided in misdemeanor court since 1999, had a dramatic change of heart this week at a federal court hearing on the bail case, and he now wants the county to put its limited resources into settling the matter.

“If we just talk to one another, if we can just get in the room and talk, maybe we can resolve this issue,” said Fields, 52. “It’s costly on both sides — it costs in terms of human lives and it costs in terms of taxpayer dollars.”

The county has spent more than $5 million defending itself, and has appealed an April 28 ruling by Chief U.S. District Judge Lee H. Rosenthal that the county bail practices violated the Constitution by setting up a “wealth-based” detention system. The county retained a top-dollar D.C. appellate firm to handle its appeal to the 5th U.S. Circuit Court of Appeals.

Fields said when he saw — during his first visit to the federal courthouse on Tuesday — how many lawyers the county had hired and how many county officials’ time was tied up with the lawsuit, he estimated the two hours for all those people amounted to $60,000.

“Two hours in a courtroom costs more than what the average citizen makes all year. Sixteen judges sitting in a courtroom (together), not doing the work of the people, think about the enormous expense of that,” Fields said.

He added: “We’re fighting about how many people get to stay in jail. I don’t see how anyone can sit in that room and not think maybe we should try another tack.”

Judge Fields had previously expressed concerns about the cost of the lawsuit, so this would be the natural next step. It won’t change anything – the appeal will go on, as all of Fields’ Republican colleagues want it to – but it is the right thing to do. He says he was convinced by Judge Rosenthal’s ruling in the case. Whatever his reason, I applaud his action. May others follow his lead.

“Fetal remains” law blocked in court

It’s deja vu all over again.

Texas’ second attempt to require health providers to bury or cremate fetal remains has been temporarily thwarted by a federal judge and another court battle is imminent.

In his Monday afternoon ruling, U.S. District Judge David Alan Ezra said the Texas Department of State Health Services’ arguments “lack merit.”

“For those eager for a result in this case, it is tempting to read the Court’s decision as a signal on who will win at trial or as a determination of the validity of Plaintiffs’ claims,” Ezra said. “Such guesswork would be premature. The Court only concludes Plaintiffs establish injunctive relief is warranted to preserve the status quo.”

The current fight is over Senate Bill 8, a law passed during the 2017 legislative session that has a provision forcing health care facilities to bury or cremate any fetal remains from abortions, miscarriage or treatment for ectopic pregnancy, regardless of their patients’ personal wishes or beliefs. That provision was supposed to go into effect Feb. 1.

In his temporary ruling, Ezra said attorneys for the Center for Reproductive Rights, who are representing the plaintiffs, showed evidence that the new rule would infringe on women’s right to an abortion and that medical providers would have a difficult time following through with the rule, causing them to be fined.

Ezra’s ruling echoes a case from 2016 where reproductive rights groups sued to stop the Health and Human Services Commission from implementing a similar fetal burial rule. During the multi-day court hearing at the time, state attorneys said the rule was designed to provide aborted or miscarried fetuses a better resting place than a landfill. They also argued that there would be no cost for patients to worry about and only miniscule costs for providers. The state also said that there were multiple groups willing to help with costs.

U.S. District Judge Sam Sparks struck that rule down in 2017, saying it was vague, caused undue burden on women and had high potential for irreparable harm.

See here for some background on the legislation. This is just an injunction hearing, to decide whether to allow the law to take effect while the litigation is ongoing. The hearings and rulings on the merits come afterward. As noted, the rule that preceded this law was struck down almost exactly a year ago; the state is of course appealing that ruling. From the zealots’ perspective, it almost doesn’t matter if they win or lose. It’s time consuming and expensive for the clinics to fight – and let’s not forget, even as the omnibus HB2 was struck down awhile back, many clinics closed for good in the meantime – and it keeps the rubes whipped up. What’s not to like for them? A statement from the Center for Reproductive Rights is here, and the Current has more.

Dallas County GOP sues to knock basically all Dallas Democrats off the ballot

Well, that escalated quickly.

Dallas County Republicans have filed a lawsuit to have 128 Democrats kicked off the March 6 primary ballot.

The lawsuit, filed in Dallas County late Friday, contends that Dallas County Democratic Party Chairman Carol Donovan didn’t sign the petitions of 128 Democratic Party candidates before sending them to the Texas Secretary of State’s office, as required by law.

“The Election Code says the chairman, and nobody else, has to sign them,” said Elizabeth Alvarez Bingham, a lawyer for the Dallas County Republican Party. “Carol Donovan is the chair. She was supposed to sign them. She didn’t do it.”

The news stunned some Democrats after a lawyer for their party notified them of the lawsuit Sunday afternoon.

“We have assembled a legal team of Dallas’ best and brightest Democratic election law attorneys,” Donovan said late Sunday in a news release. “Though we are taking this case seriously, the Republican Party’s lawsuit is not supported by Texas law. We will fight to ensure that all Democratic voters in Dallas County can participate in a fair Primary election.”

[…]

According to the lawsuit, only a fraction of the candidate petitions approved by Donovan actually contained a signature by her hand. The GOP lawsuit alleges Donovan’s signature on other petitions was not hers.

There’s not a whole lot of information to go on here, so let me note a couple of comments I saw on Facebook from people who know election law far better than I do. The first is from Glen Maxey:

“This is a frivolous lawsuit. The Primary Director, under the direction of the Chair, signed these forms. That’s the way it’s been done for decades. And the courts have ruled that way in the past.”

And the second is from Gerry Birnberg:

“And that’s how the Harris County Republican Party does it (or has for years).”

To that extent, and based on another comment I saw, here is Sec. 1.007:

DELIVERING, SUBMITTING, AND FILING DOCUMENTS. (a) When this code provides for the delivery, submission, or filing of an application, notice, report, or other document or paper with an authority having administrative responsibility under this code, a delivery, submission, or filing with an employee of the authority at the authority’s usual place for conducting official business constitutes filing with the authority.

In other words – and remember, I Am Not A Lawyer – it seems like the law allows for an employee of the county party to sign the documents, in place of the Chair. Which is what Maxey and Birnberg are saying. Individual candidates have had ballot applications rejected for technical issues with petitions they have submitted, but this isn’t quite the same as that.

There’s also the question of standing, which DCDP lawyers brought up in response to this suit.

According to a document filed late Monday on behalf of 14 candidates threatened with removal from the ballot, the Dallas County Republican Party and its chairwoman, Missy Shorey, have no standing to bring the suit, since they are not candidates in the election.

“The DCRP is clearly not a candidate and Shorey does not allege that she is a candidate for any office,” according to the filing from the lawyers. “As such, neither the DCRP nor Shorey have the necessary personal interest to have standing to seek the removal of any candidate from the ballot.”

Shorey and her attorney, Dallas lawyer Elizabeth Alvarez Bingham, argue that Dallas County Democratic Party Chairwoman Carol Donovan was required to sign the candidate paperwork of Democrats appearing on the March 6 ballot and send the documents to the Texas Secretary of State. Donovan signed only a fraction of the petitions submitted to her, but her signature, clearly signed by someone else, appears on the documents of the 128 candidates in question.

But the candidates, led by state Sen. Royce West, D-Dallas, say there’s nothing in election law that requires Donovan to “sign” candidate petitions, and that she can designate a person to review and sign petitions, if she chose.

[…]

Buck Wood, an attorney for the 14 candidates who responded to the suit, said it’s unlikely that the GOP lawsuit would result in anybody being removed from a ballot.

Wood said process duties, like those of a county party chairman, should not determine the fate of an “eligible” candidate because it would open the door for sloppy or diabolical county leaders sabotaging efforts of candidates across the state.

“It’s not an eligibility issue,” Wood said. “There’s no way anybody can be replaced.”

I have a hard time believing a court would essentially cancel dozens of elections for what seems to be normal practice, but I suppose anything can happen. At the very least, it looks like this action may be dismissed or withdrawn for now, but may be raised again after the primaries. We’ll see.

Lawsuit filed over Dallas County bail practices

Bring it on, I say.

On the heels of a federal ruling slamming Harris County for its bail practices, civil rights lawyers have now set their sights on a county with a similar system: Dallas.

Six indigent misdemeanor and felony defendants arrested this week and held in the Dallas County Jail filed suit against the county on Sunday night, claiming the bail system unconstitutionally discriminates against them by holding them in jail for days or weeks while letting similar defendants with cash walk free. One plaintiff, Shannon Daves, is a 47-year-old homeless and jobless transgender woman arrested on a misdemeanor theft charge. She has been kept in solitary confinement in the men’s unit since Wednesday under a $500 misdemeanor bond she can’t afford, the lawsuit claims.

“This system is really devastating for the people who can’t afford to purchase their freedom,” said Trisha Trigilio, a senior attorney at the ACLU of Texas, one of the legal groups representing the inmates. Lawyers with the Civil Rights Corps and the Texas Fair Defense Project are also leading the lawsuits in both Dallas and Harris counties.

[…]

In Dallas County, the plaintiffs state that judicial magistrates set money bail based on the alleged crime and prior convictions without considering an inmate’s ability to pay or determining if non-monetary conditions of release, like an ankle monitor or cab fare voucher, could ensure the defendant shows up to court. Texas law requires officials to consider financial ability when setting bail.

Instead, poor inmates who have yet to be convicted usually stay in jail because they can’t afford the bail, sometimes causing them to lose their jobs or housing, the lawsuit said. The lawsuit also argues that the threat of lengthy jail stays while awaiting trial encourages defendants to plead guilty.

Dallas County Judge Clay Jenkins said Sunday that he wouldn’t comment on a pending lawsuit, but said the county is working to improve the system.

“I support bail reform because some low-risk suspects that don’t need to be there are held in Texas jails at taxpayer expense simply because they can’t afford to bond out,” he said.

Dallas County Commissioner John Wiley Price also pointed to the county’s efforts to reform its bail system, touting a decrease in the county jail population. As of December, there were about 5,000 inmates in the jail, which has a capacity for about 8,700, according to the Texas Commission on Jail Standards.

You can see a copy of the complaint here. There are differences between the Dallas and Houston cases – the Dallas one involves felons as well as misdemeanants, and as noted their jail population had already declined by a significant amount. And, not to make too fine a point of it, Dallas County is ruled by Democrats, not Republicans. I would hope that means they’ll be much more amenable to finding a settlement rather than draw this out. (As this story reminds us, the Harris County case hasn’t even been heard yet – Judge Rosenthal’s ruling was an injunction, not on the merits.) We’ll see what happens. The ACLU’s statement on the suit is beneath the fold.

(more…)

So is there a residency standard now?

This is curious.

Rep. Dan Huberty

State Rep. Dan Huberty’s only primary challenger was on Friday declared ineligible to run to represent House District 127.

In a summary judgment, Harris County District Court Judge Bill Burke declared Reginald C. Grant Jr. did not meet the residency requirement outlined in the state’s Election Code.

Grant’s name will remain on the ballot. Should he win the March 6 primary, district precinct chairs will vote on a replacement candidate.

[…]

Huberty’s attorneys first filed suit after discovering through public documents that Grant had not lived in the district for six continuous months prior to filing for candidacy, as required by the Election Code.

According to court documents, Grant is currently undergoing a divorce. In March 2017, he moved out of his estranged wife’s Huffman house — which is owned by her father and which Grant listed as his permanent address on his filing papers. The candidate is currently staying with his father outside of the district.

Blakemore told the Texas Tribune that the state law’s definition of a “residence” includes where an individual “intends” to live, and Grant has said he will return to the district. But Blakemore said Grant has no claim to his permanent address because he isn’t the property’s owner.

[Grant’s attorney Tom] Zakes said Thursday that Grant still uses the Huffman address for his driver’s license and voter registration. He said it doesn’t matter who owns the Huffman house because Grant’s intended residence will remain the same until the candidate determines a new residence by changing his address on those documents.

“Will he ever move back to the house? I can’t tell you that,” Zakes said. “He intends to go back either to that specific residence or to somewhere else in the district.”

There’s no Democrat on the ballot in HD127, and I have no particular interest in who the Republican is, though I do have respect for Huberty for his work on public education. I am also Not A Lawyer and claim no technical knowledge here. But I have to ask, how is it that this case defines what the boundaries of the “your residency is where you intend to live” standard are? It’s very much an open secret that a non-trivial number of legislators don’t actually live where they claim to live. And as you know, I’m okay with that standard for residency being loosey-goosey. Given the way things have always been, I have a hard time seeing why this case was worthy of summary judgment in favor of rejecting Grant’s candidacy. At the very least, let’s fight this out in a full trial. And if this is the standard, then let’s do some checking and see who among the current cop of elected officials may fail to meet it. Maybe then we’ll get some real clarity.

County court judges ordered to testify in bail bond lawsuit

This seems like a big deal.

Lawyers behind the civil rights case that upended the bail system for low-level offenses in Harris County have asked a federal judge to consider sanctioning sitting county judges, citing grave concerns that the county withheld evidence.

The controversy will likely come to head on Tuesday in an unusual federal court hearing in which all the judges in the bail lawsuit have been ordered to attend to sort out the dispute.

The attorneys in a class-action lawsuit brought by indigent defendants wrote the judge Wednesday to highlight “deeply troubling revelations” unearthed after the State Commission on Judicial Conduct issued rare sanctions issued to three county magistrates. On Jan. 10, the state admonished the trio for failing to follow the law and use discretion in granting personal bonds.

The conflict erupted after magistrates Joseph Licata III, Jill Wallace and Eric Hagstette told the commission they were acting under direction of the county judges, following rules that restricted them from granting cash-free bonds. They said they felt pressured to comply with these rules the judges provided.

This testimony appears to contradict what judges said under oath during a March hearing in federal court, according to attorneys for indigent defendants in the landmark bail case letter.

Throughout the injunction hearing, judges repeatedly said they never provided instructions to hearing officers about bail matters and magistrates had full reign to issue personal bonds.

There’s more, so go read the rest. I can’t wait to see what happens at Tuesday’s hearing. If the evidence here is credible, then among other things the 15 Republican judges on the misdemeanor court benches (*) don’t just deserve to be voted out, they deserve to be sanctioned like the magistrates were. Hold onto your hats. Mark Bennett has more.

(*) -The one Democratic judge on the misdemeanor courts, Darrell Jordan, has testified for the plaintiffs and as far as I can tell is not subject to this motion.

SCOTUS will not hear Texas partisan gerrymandering appeal

Not really a big deal.

Texas, for now, will not join the list of states fighting in court over the limits of partisan gerrymandering.

As it considers cases out of other states over whether extreme practices of partisan gerrymandering can be deemed unconstitutional, the U.S. Supreme Court on Tuesday dismissed the efforts of Texas Democrats and other plaintiffs to revive a related legal claim in the ongoing litigation over the state’s political boundaries.

The high court’s dismissal comes just days after it agreed to hear a case over whether Texas’ congressional and House district boundaries discriminate against voters of color. In that case, the state appealed a three-judge panel’s ruling against the state that included findings of intentional discrimination by state lawmakers, unconstitutional racial gerrymandering and violations of the Voting Rights Act.

[…]

Pointing to Texas’ “stark admission” that lawmakers were “motivated by the Legislature’s desire to dilute the voting strength of Democratic voters,” the Texas Democratic Party and other plaintiffs had asked the Supreme Court to reconsider the three-judge panel’s decision to dismiss partisan gerrymandering claims in the case in 2011 and 2014 without any discovery or trial. But the Supreme Court on Tuesday agreed with state attorneys who had argued that the court lacked jurisdiction to consider the party’s appeal.

See here for the background. Hey, it was worth a shot. There are other cases ongoing, and as Michael Li notes, there will be other opportunities for the TDP or some other interested party to try again later. The Chron and Rick Hasen have more.

Supreme Court hears bag ban arguments

Hoping for the best, but not really expecting it.

In the case Laredo Merchants Association v. The City of Laredo, lawyers spent almost an hour arguing whether Laredo’s 2015 ban was illegal under state law. If the Republican-led court rules against the city, bag bans across the state could be deemed illegal.

The city of Laredo’s lawyer, former Supreme Court justice Dale Wainwright, argued single-use bags are not garbage, so they are not covered by the several lines of state law that the case hinges on. The code says local governments may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”

The arguments made Thursday mirrored those in lower courts, where the case was originally decided in favor of Laredo before an appeals court overturned the verdict by a 2-1 margin. The city then appealed that decision to the Supreme Court.

[…]

The oral arguments represent the last public action taken on the case, but a decision by the Supreme Court could still be a long way away. The court has discretion over the timeframe for a verdict, and previous cases have taken anywhere from a few weeks to a couple of years to resolve.

See here for some background. An earlier Trib story that previewed the case had some further details.

The case hinges on only a few lines of the Texas Health and Safety Code, specifically section 361.0961, which states local governments may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.” In the lower courts, arguments focused on the specifics of the law, including the definitions of “container or package” and “solid waste management.”

Attorney Christy Drake-Adams filed a friend-of-the-court brief on behalf of the Texas Municipal League and the Texas City Attorneys Association supporting the city of Laredo and arguing that siding with the merchants would represent a swift departure from Texas’ history of supporting local governments.

“There just seems to be a trend that the state wants to consolidate power in the state’s hands,” Drake-Adams said. “They don’t want the federal government telling them what to do, and yet they want to tell local governments what to do.”

Drake-Adams also said this case could create a dangerous precedent of strict, uniform regulations on cities.

“Extreme uniformity and regulation fails to address diverse local concerns,” Drake-Adams said. “Texas is a great example of why that can’t work. A state as large and diverse geographically as Texas, that simply can’t work.”

Supporters of the merchants’ case are arguing that statewide enforcement of the law should overrule any local ordinances, and the inconsistent local laws like the plastic bag bans seen in cities across Texas cause unnecessary strain on small businesses.

“Inconsistent local ordinances harm the sales of affected retailers, force the layoff of employees, deprive retailers of their existing inventory of bags, and impose an expensive and complex requirement on multisite retailers to comply with varying ordinances across the state,” wrote Edward Burbach in a friend-of-the-court brief on behalf of the Texas Retailers Association in support of the merchants.

Remember, the goal here as expressed by Ken Paxton and abetted by Greg Abbott is to kill off all local bag laws, on the way to generally bringing cities to heel under the state. And yeah, we’re hoping the Supreme Court will stop them. If there’s a silver lining, it’s that the law in question can – someday – be easily modified to fix the flaw that the pro-bag-litter faction is exploiting. That would require winning some elections first, of course. But at least it gives us something to aim for.

Dan Patrick wants SAPD Chief arrested

Bring it on.

Texas Lt. Gov. Dan Patrick on Wednesday asked the state’s attorney general to determine if the chief of the San Antonio Police Department violated the state’s immigration-enforcement law during a human smuggling incident.

Late last month, San Antonio Police Chief William McManus said officers arrested the driver of a tractor-trailer after a passerby saw people being unloaded from the vehicle and flagged down a police unit, the San Antonio Express-News reported.

Officers charged Herbert Nichols, 58, under a state statute that makes knowingly transporting persons in the country illegally a crime, instead of turning the case over to federal agents with Immigration and Customs Enforcement. The immigrants were interviewed and released to a Catholic charity.

During a subsequent news conference, McManus said it could have been a state or federal charge but that he chose to go with the state charge because officers were waiting to see how to move forward.

In a letter, Patrick asked Attorney General Ken Paxton to investigate whether the department violated any portion of the state’s Senate Bill 4, a controversial and sweeping immigration enforcement bill passed by the Texas Legislature last year.

“I am very troubled by the recent news reports of the San Antonio police chief releasing suspected illegal immigrants in a case of human trafficking or human smuggling without proper investigation, identification of witnesses, or cooperation with federal authorities,” Patrick wrote. “Such action could be in direct violation of the recently passed Senate Bill 4 and threatens the safety of citizens and law enforcement.”

It’s unclear exactly which provision of the SB 4 Patrick alleges McManus violated. As passed, SB 4 allows local law enforcement officers to question the immigration status of people they detain or arrest and punishes local government department heads and elected officials who don’t cooperate with federal immigration “detainers” — requests by agents to turn over immigrants subject to possible deportation — in the form of jail time and fines.

Chief McManus, backed by San Antonio Mayor Ron Nirenberg, strongly disputes Patrick’s allegation. I kind of doubt Danno cares about the details. He’s looking to send a message. Keep an eye on this. The Current has more.

SCOTUS will take up Texas redistricting appeal

As the man once said, hold onto your butts.

Further extending a drawn-out legal battle, the U.S. Supreme Court on Friday agreed to hear a case over whether Texas’ congressional and House district boundaries discriminate against voters of color.

The high court’s decision to take the case is a short-term win for Texas’ Republican leaders who, in an effort to preserve the maps in question, had appealed two lower court rulings that invalidated parts of the state’s maps and would have required the district lines to be redrawn to address several voting rights violations.

The Supreme Court’s decision to weigh that appeal will further delay any redrawing efforts even after almost seven years of litigation between state attorneys and minority rights groups that challenged the maps.

[…]

The state’s currents maps, which have been in place for the past three election cycles, were adopted by the Legislature after the three-judge panel in San Antonio in 2012 tweaked boundaries drawn following the 2010 census.

It’s unclear when the court will schedule oral arguments.

See here for the background. We expected this, and Rick Hasen called it the day before it happened. One way or another, we’ll finally get to a resolution, in time for one last election before we start the cycle anew. When the first lawsuits were filed, I figured we’d have new maps in place for 2016, based on how things went after the 2001/2003 redraw. Shows how much I know, or maybe things really are that much different. Strap in and hold on, it’s going to be a consequential term at SCOTUS. Mother Jones, ThinkProgress, the Chron, Hasen again, and the Lone Star Project have more.

Yet another ruling against North Carolina’s Congressional map

Because redistricting litigation is always of interest.

A panel of federal judges struck down North Carolina’s congressional map on Tuesday, condemning it as unconstitutional because Republicans had drawn the map seeking a political advantage.

The ruling was the first time that a federal court had blocked a congressional map because of a partisan gerrymander, and it instantly endangered Republican seats in the coming elections.

Judge James A. Wynn Jr., in a biting 191-page opinion, said that Republicans in North Carolina’s Legislature had been “motivated by invidious partisan intent” as they carried out their obligation in 2016 to divide the state into 13 congressional districts, 10 of which are held by Republicans. The result, Judge Wynn wrote, violated the 14th Amendment’s guarantee of equal protection.

The ruling and its chief demand — that the Republican-dominated Legislature create a new landscape of congressional districts by Jan. 24 — infused new turmoil into the political chaos that has in recent years enveloped North Carolina. President Trump carried North Carolina in 2016, but the state elected a Democrat as its governor on the same day and in 2008 supported President Barack Obama.

[…]

The ruling left little doubt about how the judges assessed the Legislature’s most recent map. Judge Wynn, who sits on the United States Court of Appeals for the Fourth Circuit and was a member of a special panel considering the congressional map, said that “a wealth of evidence proves the General Assembly’s intent to ‘subordinate’ the interests of non-Republican voters and ‘entrench’ Republican domination of the state’s congressional delegation.”

Most federal lawsuits are first heard by a district court, and later — if needed — by an appeals court and the Supreme Court. But under federal law, constitutional challenges to the apportionment of House districts or statewide legislative bodies are automatically heard by three-judge panels, and appeals are taken directly to the Supreme Court.

See here and here for some background, and here for a copy of the opinion. As noted, SCOTUS is likely to weigh in on this, and as with Texas that could mean the current map will be left in place until further litigation has concluded. The key takeaway, as Nicholas Stephanopolous notes, is that the judges used a recently-developed system for determining what makes a “partisan” gerrymander too extreme, and it did so without any difficulty. That’s a question that’s already on SCOTUS’ docket. The potential is there for a lot of good to be done, but we’re still a ways away from that happening. ThinkProgress, Mother Jones, the Associated Press, the WaPo, Daily Kos, and Rick Hasen have more.

So where do we stand with handing over voter info to the Trump commission?

The DMN asks the question.

Still the only voter ID anyone should need

Have state officials turned over Texas voter information to the federal government?

In short, not yet.

A lawsuit by the Texas NAACP and the Texas League of Women Voters has halted the state’s release of that information to the commission after a Travis County district judge granted the groups a temporary restraining order in October. But the state has taken its case to an appeals court, arguing the lower court has no jurisdiction.

The appeals court has given no timeline on when it will rule on the matter, but until then no voter information will be shared with the fraud commission, which agreed in September to halt its request until the jurisdiction question was resolved.

[…]

Justin Levitt, an election law professor at Loyola Law School in Los Angeles, said it is unclear whether the commission is subject to the Federal Advisory Committee Act, so Texas should think twice about handing over its voter roll information. But if it’s not subject to that law, the commission may be under other constraints about what information it can request and how it can do so.

“That’s what the federal lawsuits are about. It’s an open question,” said Levitt, who oversaw voting rights battles for the Department of Justice under President Barack Obama.

Until those questions are resolved, Levitt said, there is nothing obligating Texas to turn over the information.

“This is just a request,” he said. “There’s nothing in Texas state law and nothing in federal law that I’m aware of that would force Texas to give the data over.”

See here, here, and here for the background. The lawsuit from which the injunction came was filed in state court, but as noted later in the piece there were federal lawsuits filed as well. And just as I was prepping to queue this post up for publication, this happened.

President Trump signed an executive order late Wednesday disbanding his own election integrity commission after less than eight months, saying he didn’t want to waste taxpayer money fighting with state governments over their voter data.

But the co-chairman of the panel, Kansas Secretary of State Kris Kobach, said the investigation into alleged voter fraud would continue — and could pick up speed without the formalities of a commission.

Trump said the commission’s work will now go to the Department of Homeland Security.

“Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry,” Trump said in a statement through his press secretary. “Rather than engage in endless legal battles at taxpayer expense, today I signed an executive order to dissolve the commission, and have asked the Department of Homeland Security to review these issues and determine next courses of action,” Trump said.

Good riddance, I say, though it sounds like we’re not quite out of the woods yet. Keep up the good fight against this travesty. Think Progress, Daily Kos, and Mother Jones have more.

More on the Pressler lawsuit

The Chron adds some details to the lawsuit against former State Representative and Judge Paul Pressler, who has been accused by Duane Rollins of long-term sexual abuse.

Rollins worked in 2003 and 2004 as a personal assistant to Pressler and attended the same church as Pressler beginning as a teenager, according to court documents. Those documents include two letters ostensibly written by Pressler in 2000 and 2002 trying to gain Rollins’ release from prison.

The suit, a revised version of which was filed Dec. 14, seeks more than $1 million in damages.

Also named as defendants are Jared Woodfill, Pressler’s former law partner and former head of the Republican Party in Harris County; the First Baptist Church of Houston; the Southwestern Baptist Theological Seminary in Fort Worth and its president, Paige Patterson; and Pressler’s wife, Nancy.

The suit claims the other defendants knew or should have known about the alleged assaults and could have stopped them.

Pressler has categorically denied all of the allegations in court filings, as did the other defendants, and his lawyer filed a motion Thursday afternoon asking that the case be thrown out of court.

[…]

It’s not the first time Rollins has sued Pressler – he filed suit in July 2004 with his mother, Margaret Duryea, but the suit was dismissed two months later after an apparent settlement was reached, according to records with the Dallas County District Clerk’s Office and Harris County courts.

The case file containing the 2004 lawsuit has since been destroyed by Dallas County, as allowed under state law. But Rollins’ attorney, Daniel Shea, who also represented him in Dallas, provided a copy of the 2004 lawsuit, which accuses Pressler of physically assaulting Rollins during a trip to Dallas in November 2003.

In August 2016, Rollins filed a notice of intent to file a lawsuit against Pressler in Harris County to force him to set aside funds to pay out the remaining balance of the 2004 settlement agreement through 2029. That’s when the payments are set to end, according to court documents.

Neither Woodfill, who represented Pressler in 2004, nor Shea would provide the Chronicle a copy of the settlement agreement. But the court documents filed in 2016 link the settlement directly to the 2004 lawsuit.

The notice seeks to question Pressler under oath about the settlement agreement.

[…]

Shea is perhaps best known for suing a Harris County judge who posted the Ten Commandments in a courtroom, and for attempting to sue the Pope in federal court in 2005 over sexual abuse of minors by priests.

Shea also represented some plaintiffs in Massachusetts when sexual abuse scandals plagued the Boston and Worcester Archdioceses in the early 2000s.

Shea has had a rocky history in Texas. His law license was suspended in 2013 for 18 months for professional misconduct and was reinstated in October 2014, though he remained on probation until March 2017, according to the State Bar of Texas website. A state bar disciplinary report published in the Texas Bar Journal said he entered into a contract with a client that was unfair and unreasonable, without the client’s written consent to the terms. He was ordered to pay more than $38,000 in restitution to the client.

See here for the background. The defense is arguing that the statute of limitations renders this action moot. There will be a hearing on January 17, and there is also a motion to transfer the case to Tarrant County. Assuming this doesn’t get kicked, it’s going to be quite fascinating to watch.

(On a side note, Paul Pressler gave $5000 to the anti-HERO campaign. Gotta beware of those predators, you know.)

Pension bond sales proceed

But it was close, which both boggles my mind and annoys the ever-loving crap out of me.

The City of Houston can move forward with its plan to sell $1 billion in bonds on Friday as part of Mayor Sylvester Turner’s landmark pension reform passed by the Texas Legislature earlier this year, a judge ruled.

State District Judge Mark Morefield on Thursday denied a request by former city housing department director James Noteware for a temporary restraining order to delay the issuance of the bonds.

The request for the restraining order was part of a lawsuit filed last Friday by Noteware, who alleges the city misled voters into approving the bonds so it could sidestep a voter-approved limit on how much property tax revenue Houston can collect. Noteware claims the ballot language was “materially misleading” and did not include wording to indicate the taxes levied to pay off the bonds would be exempted from the 13-year-old revenue cap.

City officials say the language cited by Noteware is boilerplate included to assure bondholders that the city would meet its obligations.

[…]

Morefield said there were “substantial” concerns regarding the legality of the ballot measure, but that he ultimately agreed with the city’s argument that delaying the issuance would significantly damage Houston’s standing among creditors and bondholders.

“I think we’re just too far down the road at this point in time to stop this train,” Morefield said. “The mayor and City Council are heavily invested in this. And this thing is going to go forward.

“They may have to pay a heavy consequence for it going forward,” he added.

See here for the background. The sale has been completed, so at least that’s one rabbit hole we won’t go down. Let me see if I can sum up all the reasons I am gobsmacked by this.

1. As a reminder, the city was only obligated to put the bond sale to a vote because that was a provision in the Senate bill that required it. Mayor Bill White sold pension obligation bonds for five years without anyone demanding a vote. The reason we voted is because Paul Bettencourt insisted on it. What does he have to say about this?

2. Proposition A passed with 77% of the vote. There was essentially no opposition to it – conservative groups like the C Club endorsed it, while the Harris County Republican Party declined to take a position. Nobody raised any objections to the ballot language, which was approved by Council in August, and nobody made this case about the stupid revenue cap before the election.

3. Specifically, James Noteware appears to have taken no action regarding Prop A before the election. Go ahead and do a Google News search on him – there’s nothing relevant to this before he filed his lawsuit. He couldn’t be bothered to put out a press release, or throw up a webpage, to outline his objections before the vote. Yet here he comes afterwards to overturn a valid election that no one had any problems with because he didn’t like the pension deal?

4. I mean, there are issues with the whole referendum system, but look: Mayor Turner won an election in 2015 on a promise to get the Legislature to pass a bill to reform the city’s pension system. Our elected legislators passed such a bill. Our elected Council members ratified that agreement, then voted to put the required bond measure on the ballot, which the voters then overwhelmingly approved. What the actual hell are we doing here? Why does none of this matter?

deep breath Anyway. I hope we get a future story that includes some quotes from legal experts who can analyze the merits of the lawsuit and its likelihood of success going forward. I can rant all I want but it’s in the hands of the judges now. Lord help us all. The Mayor’s press release has more.

SCOTUS to consider Texas redistricting case in January

Batten down the hatches.

The U.S. Supreme Court will meet Jan. 5 to consider whether to take up a case on how Texas draws its congressional and statehouse maps.

In a 5-4 decision split along ideological lines in September, the justices blocked two rulings by a three-judge federal panel in San Antonio. The panel had ordered lawmakers to redraw Texas’ congressional and statehouse maps, which the judges said discriminated against minorities in violation of the Constitution and the Voting Rights Act.

The Supreme Court’s involvement is the latest twist in a six-year legal battle that could have a major impact on Texas’ political landscape, including the Dallas-Fort Worth area.

[…]

The plaintiffs wanted the districts redrawn in time for the 2018 midterm elections. But Attorney General Ken Paxton appealed the decision to the Supreme Court and was granted a stay by Justice Samuel Alito, which torpedoed the plaintiffs’ efforts to expedite new maps.

Since then, both sides have started to prepare for the possibility of a showdown at the Supreme Court. The Mexican American Legislative Caucus, one of the lead plaintiffs in the statehouse suit, hired voting rights expert Pamela Karlan to present their case. Karlan is the co-director of the Supreme Court Litigation Clinic at Stanford Law School.

See here, here, and here for the background. You know the stakes, and how long this godforsaken case has taken to even approach some kind of resolution. There are several other big redistricting and gerrymandering cases coming to SCOTUS soon as well, so we could be in for a world of changes, or a world where basically nothing changes. As the man once said, hold onto your butts.

Microbrewery legal setback

Kind of a lousy Christmas present.

Three Texas brewers are going back to battle with the state after an appeals court reversed a decision that would have allowed them to sell their distribution rights for monetary compensation.

In 2014, Peticolas Brewing Co. (Dallas), Revolver Brewing (Granbury) and Live Oak Brewing Co. (Austin) sued the Texas Alcohol and Beverage Commission, saying a newly passed law related to who could sell a brewery’s distribution rights was unconstitutional. The mandate, which passed in 2013 with a bundle of other beer regulation reforms, said breweries may not accept payment for contracting with a distributor, but that a distributor could get a payout if it sold those same territorial rights to another distribution company.

Last year, a judge served victory to the breweries. But on Dec. 15, the Texas Third Court of Appeals reversed that decision. It stated, in part, the law does not prevent the brewers from successfully operating their businesses and that it also upholds the industry’s three-tier system, which aims to avoid conflicts of interest between alcohol manufacturers, distributors and retailers.

The decision will be appealed to the Texas Supreme Court, according to a statement from Institute for Justice, which is representing the breweries.

“It is well established that the Texas Constitution protects economic liberties, and these rights do not cease to exist when the government begins licensing and regulating individuals and businesses,” said Arif Panju, managing attorney for Institute for Justice’s Texas office, in a statement. “Every business in Texas should be concerned with the court’s ruling in this case. It is dangerous and we will ask the Texas Supreme Court to reverse.”

See here, here, and here for the background. You know how I feel about this. The three-tier system is an anachronism and a travesty, a glaring counterexample to any politician’s paeans to how Texas has a great business environment. Yet it persists, a lasting tribute to the lobbying efforts of the beer distributors and the big breweries that support them. As with so many things in this state, the ultimate solution is going to have to be a political one. Nothing will change until we elect enough people who want it to change. Austin360 has more.

Farenthold gets off the ballot

It started with this.

Rep. Blake Farenthold

The Republican Party of Texas managed to clear a path Tuesday in federal court for its chairman, James Dickey, to remove U.S. Rep. Blake Farenthold’s name from primary ballots.
But as of press time, a party spokesman said Dickey still had not reached a decision on the fate of the congressman’s name on the ballot.

The drama late Tuesday came after a remarkable half-hour hearing hours earlier in Austin’s federal courthouse, where lawyers for the state said that, while state law requires the inclusion of Farenthold’s name because he withdrew from the race after the filing deadline, the secretary of state had no power to enforce that law.

In response, attorneys for the state party told U.S. Magistrate Judge Andrew Austin they would drop a lawsuit that sought to leave Farenthold off the ballot.

“It was not Blake Farenthold’s intent to game the system, to choose the successor or to even get out of the race at the time when the ballot period closed,” said Chris Gober, one of the attorneys representing the state GOP.

Instead, he said, Farenthold was driven out of the race by the media coverage of sexual harassment allegations and how he treated his employees.

[…]

Under state law, political parties are required to submit a list of candidates who have filed to run in the primary elections to the secretary of state’s office, which transmits them to county officials in charge of printing ballots and running elections.

While the law requires the parties to include the names of all the candidates who have filed, no enforcement mechanism gives the secretary of state’s office the authority to ensure the lists provided by the political parties are complete, or to penalize party leaders if they leave a name off, a lawyer for the state argued.

According to the state’s brief, officially allowing Farenthold to withdraw his name from the ballot would trigger a new extension of the filing period, complicating efforts to get ballots prepared in time for the March 6 primary.

“Such an extended filing period, if triggered now, would exceed the Dec. 19, 2017, deadline to submit a list of candidates to the secretary of state and the Dec. 21 deadline to draw names on the ballot,” state lawyers argued. “It would also impede the already short period local election officials have to complete ballots before the Jan. 20, 2018, deadline to mail primary ballots to overseas military members.”

See here for the background. By ten AM, a press release from the Republican Party of Texas had hit my mailbox announcing Dickey’s decision to pull Farenthold out of there. (Yes, I get press releases from the RPT, and also from the Harris County GOP. I’m pretty sure I can trace it to having corresponded with Alan Blakemore’s office to arrange some candidate interviews. The things I do for you people.) Following that, the Texas Democratic Party filed a lawsuit to prevent Dickey from issuing this decree, but they then dropped it after failing to get an injunction.

The Democratic Party’s short-lived lawsuit sought to test the Texas GOP’s claim that it does not have to associate with Farenthold at this point. If that is valid, the Democratic Party says, it should have the same opportunity to exclude primary candidates. If it is not valid, Farenthold’s name should remain on the ballot, the Democrats argue.

“Texas Democrats will not stand idle while Republicans rig the ballot,” Gilberto Hinojosa, chairman of the Texas Democratic Party, said in a statement. “Only voters have the power to choose who leads our state and nation, not politicians and party officers in backroom decisions. Last we checked, this was Texas not Russia.”

[…]

Yet there could still be legal trouble ahead for the party due to its decision to omit a candidate who filed and did not withdraw by the deadline. That’s against the law, Soto said in court, even as he made clear the secretary of state is powerless to stop it. Both sides acknowledged the party’s decision could still draw legal scrutiny, perhaps from a candidate or voter in Texas’ 27th Congressional District.

“It’s certainly a possibility,” Gober told reporters, “but those are legal proceedings that would play out in time with presumably a plaintiff, a defendant and people with the ability to enforce that, whereas the secretary of state’s office has made the assertion they do not.”

For sure, this smacks of the bad old days, when all the action in elections was in the Democratic primary and all kinds of shenanigans were pulled to ensure that the “right” candidate won. I’d like to know what a response would be to the TDP’s assertion that if this stands then nothing would stop them from throwing out candidates they didn’t like (and Lord knows, as we continue to be beseiged by phonies and LaRouchies, this has more than a small amount of appeal to me). I think it is likely that someone else will file a lawsuit, and it will be interesting to see how the SOS testimony that this withdrawal is against the law will be addressed. In the meantime, I’ll make a donation to the first legislator who files a bill to close this dumb loophole for the 2019 session. Stay tuned.

Inevitable lawsuit over pension bond ballot language filed

Like night follows day, like flies garbage.

Mayor Sylvester Turner misled voters into approving a $1 billion pension bond referendum last month, a new lawsuit alleges, claiming that city officials plan to use the bonds’ passage to sidestep a voter-approved limit on the property tax revenue Houston can collect.

A local businessman and former Houston housing department director, James Noteware, sued the city on Friday in state district court, contesting the Nov. 7 election on the grounds that the ballot language was “materially misleading.”

The full language, rather than the summary listed for voters on the ballot, stated that the taxes levied to repay the bonds would not be “limited by any provision of the city home rule charter limiting or otherwise restricting the city’s combined ad valorem tax rates or combined revenues from all city operations.”

The suit claims that phrasing means the taxes levied to pay for the bonds will be exempted from the 13-year-old revenue cap, which limits the annual growth of property tax revenue to the combined rates of inflation and population growth, or 4.5 percent, whichever is lower.

“Omitting the fact that the proposition created a billion-dollar exception to default limits on the city’s taxing authority renders the proposition materially misleading and void,” the suit states.

More coverage from the Chron here. This is, in a word, nonsense. I mean look, Paul Bettencourt, who insisted on the pension bond referendum and who loves the revenue cap and the spotlight more than his own children, had nothing to say about this during the campaign. Nobody complained about the ballot language. At this point, this kind of lawsuit is basically pro forma, and serves as nothing more than an attempt by the losing side to get bailed out by the Supreme Court. If you have the resources to hire a lawyer to file this kind of crap, you have the resources to mount some kind of campaign against the referendum before the election, even if it’s nothing more than sending an incendiary press release to a gaggle of reporters. If James Noteware, who by the way was a Mayoral candidate for about 15 minutes in 2013, did anything like that, he failed spectacularly to get a news story out of it. If this thing goes anywhere, it can only mean that the Supreme Court is now an official part of the referendum process, and we may as well ask their opinion before we bother wasting our time voting on anything.

(Also, too: Yet another reason to kill the awful, terrible, no good, very bad revenue cap. I’m just saying.)

The Paul Pressler lawsuit

Here‘s a thing to keep an eye on.

A former Texas state judge and lawmaker has been accused of sexually abusing a young man for several decades starting when the boy was just 14, according to a lawsuit filed in October in Harris County.

The lawsuit alleges that Paul Pressler, a former justice on the 14th Court of Appeals who served in the Texas state house from 1957–59, sexually assaulted Duane Rollins, his former bible study student, several times per month over a period of years. According to the filing, the abuse started in the late 1970s and continued less frequently after Rollins left Houston for college in 1983.

In a November court filing, Pressler “generally and categorically [denied] each and every allegation” in Rollins’ petition.

The abuse, which consisted of anal penetration, took place in Pressler’s master bedroom study, the suit alleges. According to the lawsuit, Pressler told Rollins he was “special” and that the sexual contact was their God-sanctioned secret.

Pressler is a leading figure on the religious right in Texas and was a key player in the “conservative resurgence” of Southern Baptism, a movement in the 1970s and 1980s that aimed to oust liberals and moderates from the church’s organizational structure. Pressler’s wife Nancy, his former law partner Jared Woodfill, Woodfill Law Firm, Southwestern Baptist Theological Seminary President Paige Patterson, Southwestern Baptist Theological Seminary and First Baptist Church of Houston are also named as defendants in the suit.

Rollins seeks damages of over $1 million.

It’s ugly stuff. The original reporting was in the Quorum Report, which has a few more details:

Rollins regularly saw Patterson and Pressler. At one point, the three travelled abroad together, the suit says.

Following the trip, Rollins was arrested for driving while intoxicated in Houston, leading to a string of felonies and ultimately back to prison. He was finally released in November of 2015 after telling a psychologist about being molested.

Rollins sought professional help and a lawyer, Daniel Shea of Houston.

A psychiatric evaluation of Rollins provided in the filing revealed he suffered from undiagnosed Posttraumatic Stress Disorder as a result of being molested.

The petition also questions the dogmas and beliefs of Pressler, Rev. Patterson and others with the goal of discrediting the theology of the resurgence, which advocates a literal interpretation of Scripture within the SBC, as a smokescreen for “one of the most pernicious philosophical and theological dogmas afoot in this country. It is known as ‘Calvinism’,” the case reads.

The lawsuit is here.

Letters from Judge Pressler vouching for the plaintiff are here and here.

The psychiatric evaluation of the plaintiff can be downloaded here.

Keep an eye on this one, I have a feeling it’s going to be big.

Voter ID back before the Fifth Circuit

And the worst judge on the Fifth Circuit does her thing.

Still the only voter ID anyone should need

In Texas’ bid to keep its voter identification law intact, it was its legal foes — lawyers representing voting and civil rights groups and individual voters of color — who faced a tougher line of questioning Tuesday before a federal appellate court.

In light of recent revisions to the state’s voter ID law, two judges on the three-judge panel of the U.S. 5th Circuit Court of Appeals raised questions about claims that lawmakers intentionally discriminated against voters of color when they passed rules on which photo IDs can be presented at the polls. That intentional discrimination claim, which a lower court affirmed this year, is key to the case over the state voter ID restrictions.

“If there is nothing that says we are trying to advantage white voters … isn’t that proof that there wasn’t discriminatory intent?” Judge Edith Jones, a Reagan appointee, said of the plaintiffs’ lack of a smoking gun to prove purposeful discrimination by lawmakers, despite thousands of pages of memos and transcripts of debates over the voter ID requirements.

[…]

Texas lawmakers passed Senate Bill 5, which mostly followed the lead of temporary voter ID rules Ramos put in place for the 2016 elections in an effort to ease the state’s requirements.

Key to the state’s defense: The new law allows Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification. Those found to have lied about not possessing the proper photo ID could be charged with a state jail felony, which carries a penalty of 180 days to two years in jail.

That revision “completely changes the nature of the law,” Texas Solicitor General Scott Keller told the judges on Tuesday, arguing the appellate court should dismiss Ramos’ August decision to toss that bill out, too. Ramos said SB 5 didn’t clear Texas lawmakers of discriminating against Hispanic and black voters when they passed the original law.

Attorneys representing the voting and civil rights groups suing the state asserted that the “reasonable impediment” provision was a faulty remedy to issues with the original law.

Voting “under the express threat of going to jail” would have a “chilling effect” on voters without photo ID who are more likely to be people of color, said Janai Nelson, an attorney with the NAACP Legal Defense and Educational Fund.

“What one hand gives, the other taketh away,” Nelson said of “reasonable impediment” addition.

See here for the long story. This is all about whether the law was intentionally discriminatory, in which case it would be thrown out in its entirity, or if the fix passed by the Lege remediates all that. This is going to go to SCOTUS, likely with an en banc stop along the way, so whatever happens here is not the last word. Some day this will all be over.

SCOTUS declines to hear Houston’s appeal of same-sex marriage lawsuit

Disappointing, but nowhere close to the end of the line.

Denying the city of Houston’s request, the U.S. Supreme Court will not review a June decision by the Texas Supreme Court, which ruled that the landmark decision legalizing same-sex marriage does not fully address the right to marriage benefits.

The high court on Monday announced it would not take up the case — which centers on Houston’s policy to provide spouses of gay and lesbian employees the same government-subsidized marriage benefits it provides to opposite-sex spouses — just months after the city of Houston filed its appeal, arguing the state court’s June decision “disregarded” precedent.

In that decision, the Texas Supreme Court threw out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized marriage benefits, and it unanimously ordered a trial court to reconsider the case. The ruling found that there’s still room for state courts to explore “the reach and ramifications” of marriage-related issues that resulted from the legalization of same-sex marriage.

That’s despite the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015 and noted that now-defunct marriage laws were unequal in how they denied same-sex couples the benefits afforded to opposite-sex couples.

See here for the previous update. What this means is that the district court needs to reconsider the lawsuit in light of the state Supreme Court’s assertion that Obergefell may have made marriage universal, but it did not specifically address the question of whether same-sex marriages are entitled to the same actual rights and benefits as traditional marriage. If all this sounds to you like unfathomable pinhead-ery, in which the concept of marriage is divided into an upper class and an underclass based on biology and the easily offended sensibilities of a couple of old coots, you’re correct. But this is where we are. The city will continue to provide spousal benefits for all its married employees, as it has the right to do, at least for now. The Chron, the Dallas Observer, the Texas Observer, and the Current have more.

State has not appealed the voting rights case on language interpreters

Interesting.

Texas has spent years defending its voting laws in court, regularly appealing rulings that found state lawmakers violated the rights of their voters. So when a federal appellate court in August ruled against the state’s restrictions on language interpreters at the ballot box, it was easy to assume an appeal would follow.

But more than three months later, Texas appears to be conceding the case.

“We have not heard anything from Texas,” said Jerry Vattamala, director of the Asian American Legal Defense and Education Fund’s democracy program, who is representing the plaintiffs in the case. “It appears that they are not appealing.”

At issue in the case was an obscure provision of the Texas Election Code that required interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.

In its August ruling, a three-judge panel of the U.S. 5th Circuit Court of Appeals affirmed a lower court’s finding that Texas ran afoul of the federal Voting Rights Act by restricting the interpretation assistance that English-limited voters may receive and that the law should be struck down.

The appellate court found that Texas’ “limitation” on a voter’s choice “impermissibly narrows” rights guaranteed by a lesser-known section of the Voting Rights Act under which a voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

“The problem remains that the Texas provisions expressly limit the right to the act of casting a ballot,” the judges wrote in August. “It should go without saying that a state cannot restrict this federally guaranteed right by enacting a statute tracking its language, then defining terms more restrictively than as federally defined.”

The Texas attorney general’s office, which is representing the state in court, for weeks has been unable to confirm whether its lawyers are appealing the ruling or letting stand the lower court ruling.

“At this time, we cannot confirm or deny any filings sent to the Supreme Court,” Kayleigh Lovvorn, a spokeswoman for the AG’s office, said last week. Instead, she pointed the Tribune to a link to the 5th Circuit’s August ruling on a free, online courts database.

But two weeks past a deadline to appeal to the U.S. Supreme Court, the clerk’s office for the high court has not received a filing for the case. A clerk for the 5th Circuit confirmed the case is closed at the appellate court, and no recent filings appear on the case’s docket at the lower district court where the case originated.

See here for the last update. I don’t know if this means that no further appeals are possible or if it just means that it’s too late for the current SCOTUS term. I also have no idea why the AG’s office has not pursued this. Whatever the merits of an appeal by them may be, it’s not in Ken Paxton or Greg Abbott’s nature to let something go. Whatever the reason, I’m happy with the outcome.

Sports betting at SCOTUS

A case you might want to watch.

Internet gambling in the United States has been limited to just three states since it began in 2013, but it could soon get a big boost from an unlikely source: the U.S. Supreme Court.

Some gambling industry officials, regulators and analysts think that a favorable ruling by the high court in New Jersey’s challenge to legalize sports betting could also lead to an expansion of internet gambling.

“If we win sports wagering, online gaming will go to every state that adopts sports betting,” said David Rebuck, director of the New Jersey Division of Gaming Enforcement, who predicts a favorable sports betting ruling could help internet gambling “explode” across the nation. “As soon as sports wagering is legalized, online gambling will follow right behind it.”

The Supreme Court will hear arguments in New Jersey’s case on Dec. 4; a ruling could be weeks or months away. The state is taking aim at a 1992 law that forbids state-authorized sports gambling in all but four states that met a 1991 deadline to legalize it: Delaware, Montana, Nevada and Oregon. Nevada is the only state to allow single-game wagering.

The sports leagues oppose the lawsuit, arguing that legalized sports betting could taint the public’s perception of the integrity of their games.

[…]

Experts think that the sports betting legislative push would likely help expand internet gambling. David Schwartz, who runs the Center for Gaming Research at the University of Las Vegas-Nevada, says that offering online casino games and sports betting would go hand-in-hand online.

“It makes a lot of sense to offer sports betting over the internet,” he said. “Once you have the systems for letting people bet on sports in place, it isn’t a huge step to permit them to bet on casino games or poker as well.”

The law in question is the Professional and Amateur Sports Protection Act (PASPA). Texas doesn’t have a direct stake in this, just the same potential to allow online sports gambling if it wanted to if the plaintiffs succeed, but it does have a position, in favor of overturning PASPA.

Texas joined an amicus brief siding with New Jersey in favor of overturning the federal law, arguing that sports betting should be up to the states and not the federal government.

Attorney General Ken Paxton signed on to the brief, not to legalize sports betting, but to keep the federal government out of state decisions.

“PASPA is unconstitutional and tramples on state sovereignty,” Paxton told the American Sports Betting Coalition. “By ending PASPA, states can rightfully decide whether they want regulated sports betting or not.”

That means Paxton is on the opposite side of the debate from the White House. The U.S. solicitor general’s office has sided with the sports leagues and will join them for the court’s oral arguments Dec. 4.

But Paxton hasn’t shown any signs of wanting sports betting to be legal in the Lone Star State. In fact, the attorney general has been at odds with daily fantasy sports sites for years.

In 2016, Paxton issued an opinion that deemed paid fantasy sports sites to be illegal gambling.

If SCOTUS sides with the state of New Jersey and throws out PASPA, it would not change the debate about expanded gambling in Texas, but it would raise the stakes as there would be more things we could expand it to include. I could imagine there being more pressure on the Lege to take it up, but that doesn’t mean it would be any more successful than previous efforts. Like I said, worth keeping an eye on.

Federal court permanently blocks Trump “sanctuary cities” order

Good.

A federal judge has permanently blocked President Trump’s efforts to bar cities that limit cooperation with U.S. immigration forces from receiving funding, the most decisive blow yet to the White House’s efforts to crack down on so-called sanctuary cities.

In a ruling issued Monday, U.S. District Court Judge William Orrick ruled Trump’s January executive order seeking to cut off sanctuary cities from federal funding unconstitutional. The same judge put a hold on the executive order in April.

“The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds,” Orrick wrote in the latest decision. “Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.”

Orrick called Trump’s move “unconstitutional on its face.”

See here for the background. This is not directly related to the SB4 litigation – among other things, this lawsuit didn’t originate in Texas – but it is a mark against the attempt to force cities to enforce immigration law. It’s also good news on its own. Let’s hope it stands up on appeal. The Washington Post has more.

Abortion procedure ban struck down

Good news, for now.

A federal district judge handed a victory to abortion rights groups Wednesday when he struck down part of a Texas law curbing access to the most common second-trimester abortion procedure, called dilation and evacuation.

In a decision that will be appealed before the U.S. 5th Circuit Court of Appeals, Judge Lee Yeakel said the provision imposes an “undue burden” on women seeking second-trimester abortions in the state.

It had been slated to go into effect Sept. 1 as part of Senate Bill 8, a law signed by Gov. Greg Abbott earlier this year. But the Center for Reproductive Rights and Planned Parenthood filed suit in July on behalf of several women’s health providers in the state. Yeakel issued a temporary restraining order on enforcing the measure in August, a day before the ban’s effective date.

The temporary restraining order was set to expire Wednesday evening.

[…]

“The court concludes that requiring a woman to undergo an unwanted, risky, invasive, and experimental procedure in exchange for exercising her right to choose an abortion, substantially burdens that right,” Yeakel wrote in the opinion.

He added: “The State’s valid interest in promoting respect for the life of the unborn, although legitimate, is not sufficient to justify such a substantial obstacle to the constitutionally protected right of a woman to terminate a pregnancy before fetal viability.”

Almost immediately after the ruling was issued, Attorney General Ken Paxton issued a statement saying he’d appealed.

See here for the last update, and here for a copy of the ruling. The Fifth Circuit is a crapshoot with loaded dice, but at least for now doctors and women can do health care without the state butting in. The Austin Chronicle and the Center for Reproductive Rights have more.

The First Amendment remains in effect in Fort Bend

For now, at least.

Karen Fonseca, the owner of a white truck at the center of a social media dispute with Fort Bend County Sheriff Troy Nehls, is considering a civil rights lawsuit against the sheriff’s office.

Fonseca’s attorney, Brian Middleton, made the announcement during a press conference on Monday. Middleton added that the American Civil Liberties Union has also expressed interest in a possible lawsuit.

“We should not allow Sheriff Nehls to intimidate people into silence,” Middleton said. “This is wrong and we will not let it stand.”

The threat of legal action stems from controversy over a Facebook post Nehls made on Wednesday, Nov. 15, regarding Fonseca’s truck, which bears a sticker that reads “F— Trump and f— you for voting for him.”

Nehls threatened to charge Fonseca with disorderly conduct over the sticker. A day later, Fonseca was arrested on a pre-existing fraud warrant out of the Rosenberg Police Department.

Middleton and State Rep. Ron Reynolds allege that Nehls’ public dispute with Fonseca is a politically-motivated attack designed to gain attention as Nehls considers a campaign against Rep. Pete Olson, who represents the 22nd District of Texas.

“I demand an apology from Sheriff Nehls for targeting (Fonseca) and making her life and her family’s life a living nightmare,” Reynolds said in a statement.

Fonseca has since added a new sticker that reads “F— Troy Nehls and f— you for voting for him.”

I hadn’t covered this before now, but I’m sure you’ve seen the stories; some earlier Chron articles are here and here. To be perfectly honest, I don’t much care for the Fonseca’s bumper stickers. They’re tacky, and as a parent I have sympathy for anyone who would prefer their kids not see that. But clearly, they have a right to decorate their truck in that fashion, and Sheriff Nehls has grossly abused his office by arresting Karen Fonseca, against the advice of the Fort Bend County District Attorney. He deserves to get his hat handed to him in court for this. Pull up a chair and enjoy the show, this ought to be good.

Harris County sues Arkema

Good.

Vince Ryan

Harris County filed suit Thursday against Arkema over chemical fires at its Crosby plant in the aftermath of Hurricane Harvey, saying the company violated a long list of environmental, safety and building regulations and put first responders at risk.

The lawsuit, filed in state district court, seeks up to $1 million in penalties and asks that Arkema be ordered to upgrade its emergency response plans, build stronger storage areas and set up a notification system for alerting nearby residents of future incidents.

About 300 homes were evacuated and more than 30 people hospitalized — including law enforcement — when a volatile chemical erupted into flames after the plant lost power and generators in Harvey floodwaters.

“This was a very dangerous situation,” County Attorney Vince Ryan said in a statement Thursday. “Arkema must take responsibility for its inability to ensure the safety of the people of the Crosby community and those who protect them.”

[…]

The company self-reported multiple emissions from the plant to the Texas Commission on Environmental Quality TCEQ during the disaster. Before the company lost control of its organic peroxides, floodwaters overwhelmed its wastewater treatment plant, resulting in industrial wastewater leaking into county waterways. Each separate fire resulted in air emissions from the facility.

Multiple new details were revealed in the county’s lawsuit. The county’s suit claims that Harris County Pollution Control Department detected air pollution outside of the mandated evacuation zone during the crisis.

It also says parts of the Arkema facility is located below base flood elevation, requiring permits the company did not have.

See here for more on the first lawsuit filed against Arkema. Commissioners Court authorized filing this lawsuit in late September. As I said before, I think Arkema needs to be held accountable for the things that it did and did not do that led to the many harmful environmental problems that resulted. Harvey was an unprecedented event and there likely wasn’t much they or anyone could have done to prevent consequences from it, but that doesn’t take them off the hook for their failure to be prepared. The Press has more.

Second trimester abortion lawsuit hearings conclude

Now we wait.

In a five-day trial that concluded Wednesday, lawyers for the state defended part of a Texas law that bans the most common second-trimester abortion procedure unless the fetus is deceased.

Abortion rights groups sued the state in July, arguing the provision restricting the dilation and evacuation procedure imposes an undue burden on Texas women seeking second-trimester abortions. Medical professionals deem the procedure the safest way to terminate a second-trimester pregnancy.

But the state argued in court the method is inhumane and that it’s reasonable to require fetal demise before the procedure is performed.

“The state has legitimate interest … in protecting the health of a woman and life of a fetus that may become a child,” said Darren McCarty, a lawyer for the state, in closing arguments. The provision at issue, he said, “regulates the moment of death, the moment of fetal termination, and nothing more. Whether … the lethal act is going to be, for instance, grabbing the leg and pulling it off the fetus, or whether instead the lethal act is going to be a single injection or perhaps just a snip of the umbilical cord.”

The trial centered on part of Senate Bill 8, a state law passed earlier this year that bans dilation and evacuation abortions unless the fetus is deceased. The ban had an effective date of Sept. 1. But Federal District Judge Lee Yeakel blocked its implementation with a temporary restraining order in August – a month after a lawsuit was filed by the Center for Reproductive Rights and Planned Parenthood on behalf of several women’s health providers in the state. Whole Woman’s Health is the lead plaintiff.

During the dilation and evacuation procedure, doctors use surgical instruments to grasp and remove pieces of fetal tissue — a process proponents of the law have called “dismemberment abortion.” Doctors would face criminal charges for violating the ban; the only exception would be in cases of medical emergency.

Yeakel did not say when a ruling would come, but a temporary restraining order on enforcing the ban expires Nov. 22. The decision is likely to be appealed to the U.S. 5th Circuit Court of Appeals, an outcome Yeakel alluded to several times during trial.

See here for the background. We know the drill here, we’ve been down this road too many times already. All I can say is look what happened in this Tuesday’s elections, and think about what could happen here. The Center for Reproductive Rights has more.

SB4 at the Fifth Circuit

Hoping for the best as always, but the Fifth Circuit has a way of stomping on that.

Tuesday’s hearing was on whether U.S. District Judge Orlando Garcia’s August decision to block several of the law’s provisions should stand while the case meanders through the court system.

[…]

In late August, Garcia halted several parts of the law, including the provision that requires jail officials to honor all detainers. He also blocked sections that prohibit local entities from pursuing or endorsing “a pattern or practice that ‘materially limits’ the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary.

But a separate panel in New Orleans ruled the detainer provision could stand until an ultimate determination is made. The panel also determined that law enforcement officers, including campus police, with “authority that may impact immigration” cannot be prevented from assisting federal immigration officers. That ruling is what’s on the books until a decision on Tuesday’s arguments is reached.

Judge Edith Jones, who was appointed to the post by President Ronald Reagan, asked Texas Solicitor General Scott Keller Tuesday about the “endorsement” provision and whether that section of the law was too far-reaching.

“An elected official, like a sheriff or a county judge, certainly have more latitude to speak [against state policies], don’t they?” she asked.

But Keller said the state has modified several times what the definition of “endorse” means and that it applies to actions officials take in a “governmental capacity” to prevent enforcement of immigration laws.

“It has to be a use of government power to sanction or ratify a policy,” he said. “Let’s say an official were to say they disagreed that with the policies underlying SB 4. That would not be sanctioning or ratifying a [government policy].”

Keller also pushed back against the claim that the language of the law was too vague and didn’t provide enough guidance to law enforcement officials. He said the plaintiffs’ own admissions that current practices would be upended should SB 4 go into effect proved they know what the law does and doesn’t do.

“Here plaintiffs have conceded that various policies that they have would in fact be prohibited by SB 4,” he said. “That concession alone means a facial vagueness claim cannot stand.”

But Lee Gelernt, an attorney with the American Civil Liberties Union representing the city of El Cenizo, a small municipality in Webb County, said the state of Texas keeps changing it’s definition of what constitutes “materially limiting” cooperation, which implies the state knows the language is flawed.

“One of the critical aspects is that Texas has never been able to settle on an interpretation of the law,” he said. “Every time Texas comes to court, they say it’s obvious what it means for a sheriff to materially limit immigration enforcement. But on the other hand, every time we get to a new court, they change their interpretation, so it’s not clear.”

The panel also raised the issue of whether SB 4 was unconstitutional because immigration enforcement is largely under the purview of the federal government. Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, which represents several of the plaintiffs, said there is federal guidance on what local law enforcement can do but that SB 4 exceeds that.

See here for the background. The panel is all Republican appointees, with Edith Jones being the worst of the lot, so I can’t say I feel terribly optimistic. But the plaintiffs’ attorneys are as good as they come, and there are previous rulings, including from SCOTUS, to lean on. We’ll know when the Fifth Circuit is damn good and ready to tell us. The Chron has more.

Second trimester abortion lawsuit hearings begin

Deja vu all over again.

Texas abortion providers argued in court Thursday that it is not medically necessary to require women to undergo injections or other procedures in order to comply with a new state law restricting the most common second-trimester abortion procedure.

[…]

Dr. Mark Nichols, an Oregon-based doctor, called the dilation and evacuation procedure the safest method to perform a second-trimester abortion. Nichols argued the three most common procedures used to kill the fetus before performing the abortion are often complicated to perform, require extra training and are not always effective. He also believes they are not medically necessary.

“There is a real failure rate in the procedures we described,” he said.

If a similar law to SB8 existed in Oregon, Nichols said he would hesitate to perform the dilation and evacuation procedure out of fear that the fetus may still be alive, and he would then violate the law.

Under SB8, doctors would face criminal charges for violating the ban, except in a case of a medical emergency. The law was set to go into effect Sept. 1, but Yeakel blocked its implementation with a temporary restraining order which remains in effect.

Nichols said doctors may end up having to experiment on patients “to figure out how not to violate the law.”

According to 2015 data, the latest available, the procedure was used 4,386 times to terminate a pregnancy. In total, 55,287 abortions were performed that year, according to the Texas Department of State Health Services.

See here, here, and here for the background, and here for Friday coverage. The Trib had a story from before the hearings began, if you want more background. We all know that this is a multi-year process that will end up before the Supreme Court, and along the way the Fifth Circuit will rubber stamp the state’s law under whatever pretext it feels like using. It’s like the NBA regular season, where the real action is in positioning oneself for the final showdown. All I can say is that I’ve had a few medical procedures in my time, including a few surgeries, and I’m damn glad the state of Texas hasn’t tried to intervene in the treatment. I don’t want them to make medical decisions for my doctors, and I don’t want them making medical decisions for other people’s doctors. Not sure why this is so hard to understand.

TCDLA pulls Paxton prosecutors brief

Get your act together, y’all.

Best mugshot ever

A leading organization of criminal defense lawyers on Tuesday withdrew its legal brief in support of prosecutors who are fighting to get paid for work on the criminal case against Texas Attorney General Ken Paxton.

The friend-of-the-court brief, which argued that the payment fight could endanger the system for ensuring that indigent defendants are properly represented at trial, was withdrawn because it did not follow proper procedures by the Texas Criminal Defense Lawyers Association, the organization said.

David Moore, president of the association, said the brief to the Court of Criminal Appeals was pulled because it had not been approved by the group’s executive committee, which unanimously voted Monday to withdraw the document.

That committee will now examine the issue to determine if the brief should be approved or if the matter should be decided by the full board of directors, said Moore, a lawyer in Longview.

“I fear,” said Brian Wice, one of the prosecutors, “there may be other issues in play driving its decision to withdraw its brief other than a purported ‘failure to follow proper procedures and policies.’”

“The larger question is why Mr. Paxton’s defense team does not want the Court of Criminal Appeals to consider” the brief, Wice said, adding that it raised compelling points about the payment fight’s impact on public policy and proper legal representation for indigent defendants.

Dan Cogdell, one of Paxton’s defense lawyers, said he expected further action to be taken against “the parties responsible for its filing.”

“I will not have any further comment on the matter now except to express my grave disappointment in the impropriety of the filing of such a pleading in a case of this magnitude and am gratified that the proper steps to correct the situation have begun,” Cogdell said.

Austin lawyer David Schulman, one of the brief’s authors, said he and others involved believed they had followed the organization’s bylaws, but he declined to discuss specifics.

“This wasn’t any kind of guerrilla action. We thought we were authorized, but we were wrong,” he said.

See here for the background. It’s clear that the arguments made in the TCDLA brief would be good for the defense bar as a whole, but not good for Team Paxton, as they would greatly benefit from having the courts screw the special prosecutors in their case. As Mr. Spock famously said, the needs of the few outweigh the needs of the many. I hope there are enough people with a larger view of things at the TCDLA who can override these objections.