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On succeeding Abbott as AG

The next Attorney General will inherit a lot of Greg Abbott’s unfinished fights, some of which he instigated and some of which were thrust upon him by the Lege.

Still not Greg Abbott

Defending the constitutionality of the state’s controversial public school finance system before the Texas Supreme Court will be a tall order for the person elected to replace Republican Attorney General Greg Abbott.

Three Republicans and one Democrat are running for the position.

Houston lawyer Sam Houston thinks there are problems with the way Texas funds its schools, but an attorney general is bound to defend the state law whether he or she agrees or disagrees.

“That’s the job,” Houston said in an interview.

And backing Abbott’s current defense of the school funding system are all three Republican attorney general candidates: State Rep. Dan Branch, R-Dallas; state Sen. Ken Paxton, R-McKinney; and Railroad Commission Chairman Barry Smitherman.

“All of the candidates are campaigning on the idea that they would carry forward the Abbott agenda on standing firm against federal overreach and the expansion of government,” said Cal Jillson, a political scientist at Southern Methodist University.

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During his tenure, Abbott has used the position to champion socially conservative positions on gay marriage and abortion as well as to launch political attacks against the Obama administration and federal agencies.

His defense of the school finance system became campaign fodder for Democratic gubernatorial candidate Wendy Davis, who filibustered against the 2011 cuts in the Texas Senate. Abbott has responded that he was acting in his capacity as attorney general to defend state laws.

Houston, the lone Democrat in the race, said in an interview that he questions what advice Abbott gave to members of the Legislature during the 2013 session regarding the system’s constitutionality.

He’s also questioned the advice Abbott gave the Lege about redistricting. I don’t think that comment Prof. Jillson made above applies to Sam Houston, at least not in the same way. Being tasked with defending the state against litigation doesn’t preclude one from seeking a settlement if one reasonably concludes that the state’s position is a loser and it’s going to get its tuchus handed to it in court. There’s already an argument being made by the Lone Star Project that Abbott can and should be seeking a settlement in the school finance case. A much more contentious question will arise with the state’s defense of its Double Secret Illegal Anti-Gay Marriage law. The initial hearing to determine if there needs to be an injunction against it will be soon, but it’s very likely the appeals process will still be ongoing in 2015. The precedent exists for an Attorney General to decline to defend a state’s ban on same sex marriages. Houston may come under a lot of pressure if it’s his job to do that for Texas next year. The Supreme Court could possibly render that decision moot, but this is something to keep in mind going forward.

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