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4th Court of Appeals

Paxton seeks to overturn all local bag ban laws

It’s up to the Supreme Court to decide whether he gets it or not.

Attorney General Ken Paxton on Thursday filed paperwork urging the Texas Supreme Court to eliminate plastic bag bans across Texas, including Austin’s.

Paxton is seeking for the court to affirm an earlier decision that overturned a bag ban in Laredo. However, he also wants to court to expand the ruling to eliminate all bag bans across the state.

“Texas must be empowered to enforce its statewide solution of waste disposal,” the brief said. “To give full meaning to the Legislature’s directive about the management of waste, the Court should clarify that municipalities cannot pass waste management duties onto consumers by banning packaging or containers.”

[…]

Paxton said the Texas Health and Safety Code prohibits cities from creating bag bans that restrict the sale or use of a waste container.

“Municipalities do not get to violate Texas law merely because they don’t like it,” Paxton said in a news release. “We’re asking the Texas Supreme Court to uphold the law so that the ruling can be used to invalidate similar ordinances across Texas.”

See here and here for background on the Laredo case. The bag law was upheld by the district court and then overturned by the 4th Court of Appeals. A statewide restriction on municipal bag laws was on the Abbott anti-local-control agenda for this legislative session, but did not succeed. If Paxton and the plaintiffs against Laredo win, that won’t matter.

Initial thoughts: Statewide

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See part 1 on Harris County here.

The current statewide tally is Trump 52.39%, Clinton 43.34%. She received 3,848,617 votes to his 4,651,955. That’s an improvement of some 540K votes over Obama in 2012, which I certainly would have deemed acceptable going into Tuesday, while he added about 100K to Mitt Romney’s score. As with Harris County, there were clearly some crossovers, as the other statewide Republicans received about 4.75 million votes. I’d guess the crossover number is in the 100K range as well.

Due to those crossovers, as well as the usual dropoff from the top, the downballot Dems didn’t do as well as Clinton, ranging from 3,337,411 votes for Grady Yarbrough (38.36%) to 3,580,358 for Dori Contreras Garza (41.14%); other Dems ranged in between, with all but one clearing 3.4 million. Which is an increase of about 300K over downballot Dems in 2012, but downballor Rs who had Dem opponents improved by about 400K. There’s still work to be done here, and part of it I think just involves ensuring that good candidates who want to run a real campaign 1) survive the primary, and 2) have sufficient resources to at least get their names out there. Both of these will require an investment in money and campaign infrastructure. I’d hoped that the Clinton campaign would be able to help with that post-November, but that ain’t happening now.

One more point about the crossovers is that doing direct comparisons between Obama/Romney in 2012 and Clinton/Trump in 2016 will be tricky and often misleading. Comparing statewide judicial results will be a little better, though the range of results this year makes that tricky as well. I’m sure I’ll figure something out.

Looking at my sidebar, I’d say the last YouGov poll, which had it at Trump 50,3, Clinton 42.4, was probably the most accurate. The polls of the state were all over the map, but not really any worse than they were elsewhere. Mark Jones basically nailed it in the Texas Monthly expert roundup, with Cal Jillson and Mary Beth Rogers right behind. Technically, GOP pollster Bryan Eppstein was about as accurate as those latter two, but he threw in a prediction of 7.5 million turnout, which was off by over 1.3 million, so I’m knocking him down a notch for that.

In terms of the races I was watching, the pickings were slim but not non-existent. The Dems won the four “back to parity” legislative races plus HD107 in Dallas County, thus bringing their numbers back to the 2012 level of 55. (Actually, it will dip down to 54 again after Rep. Dawnna Dukes resigns; it will revert to 55 after a Democrat wins that special election.) HDs 105 (120 votes) and 115 (1,115 votes) were the closest, but no cigar.

Dems also picked up two appellate benches, in the Fourth and Thirteenth districts. None of the candidates whose districts included Harris County won, with Barbara Gardner (48.94%) coming closest. If Dems in Harris County can build on this year, those seats ought to be winnable in 2020.

Sadly, neither Jon Harris in Edwards County nor Cedric Watson in Waller County emerged victorious. Waller County went more strongly for Trump (62-34) than it did for Romney (57-41), which probably didn’t help Watson’s cause.

Also in the close-but-not-quite bucket was the SBOE 5 race, where incumbent Ken Mercer held on by four points despite failing to reach fifty percent. Like Harris County, Bexar County was a Democratic sweep, though the part of this district that touches Bexar is pretty strongly Republican. Still, with a dominant performance in Travis County, this district could be won next time with an improvement in Bexar and some way of limiting the damage in Comal and Guadalupe.

The theme of the national election is very much about an urban/rural divide between the voters, and a brief survey of the Texas urban counties bears that out. I’ll go into more detail in another post, but Dems definitely gained ground in the big urbans; Harris’ sweep is testimony to that, but it wasn’t the only place that this happened. I’ll need to spend a little more time figuring out where the Dems fell back.

Two last points of interest. The strangest result I saw on Tuesday was in HD66, in Collin County. Not because of the result itself – the Republican incumbent won with a decent though not overwhelming margin – but because of the stark difference between the early vote and the Election Day vote:


Name                     Early  Early%   E Day  E Day%   Total  Total%
======================================================================
Matt Shaheen (I)   REP  24,609  49.40%  15,613  77.36%  40,222  57.46%
Gnanse Nelson      DEM  23,112  46.39%   3,950  19.57%  27,062  38.66%
Shawn W. Jones     LIB   2,091   4.19%     620   3.07%   2,711   3.87%

I’ve never seen anything like that. None of the other races in Collin County showed anything remotely similar. Either this was a weird quirk or something is wrong with the data.

And finally, here are two stories in the Trib about the Democratic and Republican reactions to Tuesday’s events. Even scarier than “President Trump” is the realization that there’s basically no backstop on these guys any more. The upcoming legislative session is going to be so much worse now. On that cheery note, I’ll bring this to a close.

Races I’ll be watching today, non-Legislative edition

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This is my companion to yesterday’s piece.

1. SBOE district 5

I’ve discussed the SBOE races before. This particular race, between incumbent Ken Mercer and repeat challenger Rebecca Bell-Metereau, is the one that has the closest spread based on past performance, and thus is the most likely to flip. If it does flip, it would not only have a significant effect on the SBOE, which would go from 10-5 Republican to 9-6, with one of the more noxious members getting ousted, it would also cause a bit of a tremor in that this was not really on anyone’s radar going into 2016. Redistricting is supposed to be destiny, based on long-established voting patterns. If those patterns don’t hold any more, that’s a big effing deal.

2. Appeals courts

I’ve also talked about this. The five courts of interest are the First, Fourth, Fifth, 13th, and 14th Courts of Appeals, and there are multiple benches available to win. I honestly have no idea if having more Democrats on these benches will have a similar effect as having more Democrats on the various federal appellate benches, especially given that the Supreme Court and CCA will most likely remain more or less as they are – I would love to hear from the lawyers out there about this – but I do know that having more Dems on these benches means having more experienced and credible candidates available to run for the Supreme Court and CCA, and also having more such candidates available for elevation to federal benches. Building up the political bench is a big deal.

3. Edwards County Sheriff’s race

Jon Harris is an experienced Democratic lawman running for Sheriff against a wacko extremist in a very Republican county, though one with a small number of voters. This one is about sanity more than anything else.

4. Waller County Sheriff’s race

I’ll be honest, I didn’t have this one on my radar until I read this Trib story about the race, in which the recent death of Sandra Bland is a factor. Waller County went 53-46 for McCain over Obama in 2008, though the Sheriff’s race that featured a problematic Republican was a lot closer. It was 58-41 for Romney, which is close to what it was statewide. Democratic challenger Cedric Watson will have to outperfom the countywide base to defeat incumbent Glenn Smith, it’s mostly a matter of by how much he’ll have to outperform.

5. Harris County Department of Education, Precinct 2

There aren’t any at large HCDE Trustee positions up for election this year, so I haven’t paid much attention to them. This race is interesting for two reasons. One, the Democratic candidate is Sherrie Matula, who is exceptionally qualified and who ran a couple of honorable races for HD129 in 2008 and 2010. And two, this is Jack Morman’s Commissioner’s Court precinct. A win by Matula might serve as a catalyst for a strong candidate (*cough* *cough* Adrian Garcia *cough* *cough*) to run against Morman in 2018.

6. HISD District VII special election

You know this one. It’s Democrat Anne Sung versus two credible Republicans and one non-entity who hasn’t bothered to do anything other than have a few signs put up around town. One key to this race is that it’s the only one that will go to a runoff if no one reaches 50% plus one. Needless to say, the conditions for a December runoff would be very different than the conditions are today.

7. HISD recapture and Heights dry referenda

I don’t think any explanation is needed for these.

What non-legislative races are on your watch list for today?

Laredo plastic bag ban overturned

Ugh.

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The Fourth Court of Appeals on Wednesday sided with merchants and free-market groups who argued that Laredo’s ban on single-use bags is illegal because it is pre-empted by state law regulating solid waste disposal.

The 2-1 ruling overturned a lower court’s decision, the latest setback for environmentalists and advocates of local control in Texas.

Laredo, which estimates it once went through some 120 million plastic bags each year, is among several Texas cities — including Austin, Fort Stockton and Port Aransas — that have sought to regulate them to reduce waste.

The city argued that its ban was designed to beautify the city and reduce clogs in storm drains, not to manage solid waste as barred by the state law.

The lawsuit, filed by the Laredo Merchants Association, was the first challenge to such a ban to be heard in court. And it triggered briefs from 20 Texas lawmakers, a prominent free-market group and the Texas Municipal League — who squabbled over cities’ power to regulate commerce.

Wednesday’s ruling only affects Laredo’s ordinance for now, but it gives legal momentum to bag ban opponents elsewhere.

[…]

The state law in question is a small piece of Texas’ Health and Safety Code. Local governments, it says, can’t adopt a regulation to “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.”

Laredo contended that its bag ban’s purpose — “prevention of litter” — did not fall within the “management purposes” barred under the law.

The appeals court disagreed.

“The Ordinance does exactly what the Act intends to prevent — regulate the sale or use of plastic bags for solid waste management purposes,” Justice Marialyn Barnard wrote for the majority.

See here for the background. I’m sorry, I know I’m not a lawyer, but this is a ridiculous reading of the law. You can see here for the bill in question, and see here for its text. I’d bet you a dollar right now that if you tracked down the key people on that bill – author, sponsor, and conference committee members – none of them would claim it was their intent to forbid cities from banning or taxing plastic bags. The idea never would have occurred to them. It just boggles my mind that people who claim to be “conservatives”, who claim to decry “judicial activism”, who claim to oppose “big government meddling”, could view this as a victory for their principles. Do we want the Legislature to set the solid waste pickup schedules for cities like Laredo, too? I don’t get this at all. But here we are, and far too many of our Republican legislative overlords can’t wait to get to Austin in January and pass bills to do more things like this. This is where we are these days.

By the way, to continue with my hobby horse about the appeals courts and the opportunity that this year’s election provides: That 2-1 decision? The two are both Republicans, and the one is a Democrat. Now, there’s nothing that would keep the Supreme Court from overruling a 2-1 decision that had gone the other way, but still. This is what I’m talking about.

Appeals court blocks litigation against payday lenders

Lousy.

BagOfMoney

The Fourth Court of Appeals in San Antonio derailed a class action lawsuit aimed at keeping payday lenders from using the state’s criminal justice system as de facto collection agencies.

The suit filed by 1,400 plaintiffs argued that Cash Biz, a payday lender, illegally used district attorney offices to file criminal charges against debtors. Under the ruling, the plaintiffs will now have to settle their disputes with the firm through individual arbitration.

“This is a devastating opinion,” Daniel Dutko, attorney for the plaintiffs, said in an interview with the Observer. “[It] basically means that payday loan companies can do anything they want and send the cases to individual arbitration where nothing bad will happen except maybe a slap on the wrist.”

In 2013, the Observer was the first to report that Cash Biz and other payday lenders, in violation of state law, were using courts and prosecutors to extract payment from their customers by wrongfully filing criminal charges against them for writing “hot (illegal) checks.”

Under Texas state law, writing a post-dated check to a lender that bounces is not the same as writing an illegal check. When post-dated checks bounce, lenders are supposed to negotiate payment with customers. In fact, state laws forbid payday loan companies from even threatening to pursue criminal charges against their customers, except in unusual circumstances.

But the Observer investigation found at least 1,700 instances in which Texas payday loan companies filed criminal complaints against customers in San Antonio, Houston and Amarillo. In at least a few cases, people landed in jail because they owed money to a payday loan company.

A copy of the opinion is here. I Am Not A Lawyer, so maybe there’s some sound legal reason for this, but on its face it sounds terrible. Forced arbitration clauses are a racket, and even the idea of jailing someone for owing money to a payday loan company is repugnant. If I thought there was a chance the Legislature might address this, I’d be less concerned, but despite bipartisan support for statewide regulations on payday lenders, nothing has happened and nothing is likely to. This just sucks.

By the way, since I have mentioned the appeals court races as an underappreciated target for Democrats this November, I will note that the judge who wrote the majority opinion, a 2015 appointee by Greg Abbott to the 4th Court of Appeals, is on the ballot in Bexar and other counties. The dissenting judge was one of three Democrats (out of five races total) to be elected in 2012. Like I said, opportunities.

Another view of Democratic goals for 2016

Sounds about right.

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Some Democrats say Clinton has a chance at winning a majority in Texas, where interest is heightened because U.S. Housing and Urban Development Secretary Julián Castro has been mentioned as a possible Clinton running mate. Castro said Friday that he isn’t being vetted as one.

They’re looking for Trump’s rhetoric to help unite Democrats behind their presumptive nominee after her hard fight with U.S. Sen. Bernie Sanders of Vermont, although signs of division still exist.

“We’re going to win. It’s going to be bigger than what Obama was able to do when he ran in Texas,” said state Rep. Senfronia Thompson, D-Houston. “Donald Trump has done one thing for us. He’s united us.”

Others simply are hoping for some progress, given the steep hill ahead of Democrats who last won a statewide election in 1994. The last time a Democratic presidential candidate lost to a Republican by only single digits in Texas was in 1996, when President Bill Clinton defeated Republican Bob Dole nationally and Reform party candidate Ross Perot got 7 percent of the vote.

“I think that the best that Democrats can hope for this cycle is that we’re getting better,” said Democratic strategist Colin Strother. “What Democrats can hope for this cycle is that everybody gets a little more engaged … that they get out there and start busting their knuckles and building our list and improving our fundamentals.”

Rice University political scientist Mark P. Jones put some parameters on what “better” could look like for Democrats.

“‘Better’ is keeping Trump’s victory in the single digits, and taking back somewhere around a half-dozen state House seats, taking back Congressional District 23 and turning Harris County blue,” Jones said.

In Harris County, he said, that means reclaiming the sheriff’s office, flipping the district attorney and tax assessor-collector offices and sweeping the overwhelming majority of countywide judicial elections.

That’s basically in line with what I suggested previously. On a great day, Dems could pick up two or three more House seats, and it’s not crazy to suggest that Fort Bend County, where Barack Obama won 48.5% of the vote in 2008, could be flipped, but they got the basics. I will note again that an under-the-radar opportunity for Dems is in the district Court of Appeals races. Here’s Texas Lawyer on this possibility:

But political experts who’ve taken a closer look at judicial races in Texas believe there’s one very important set of elections where Trump and his bombastic behavior could do some serious damage to his party’s ballot mates.

If a Trump effect is going to be felt anywhere in Texas, they believe it’s most likely to occur on Republican-held intermediate courts of appeals based in large Texas cities. Those races draw a pool of a mix of voters from both urban and suburban counties. And the split between Democrat and Republican votes have grown much closer in those courts in recent years.

Two simple things have to happen for the Trump effect to upset a down-ballot races in Texas, according to Cal Jillson, a Southern Methodist University political science professor who had studied the state’s voting trends for years.

First, Democrats in urban counties have to come out and vote at full strength to vote against him. And second, Republican voters who are turned off by the bigoted and often offensive candidate have to stay home on Election Day in November.

“When you think about Texas’ major cities, the inner cities are blue, the inner ring suburbs are purple and the outlying suburbs are red,” Jillson said. And the biggest problem for Republicans can be found in the purple suburbs, where stalwart Republicans may be turned off by Trump, he said.

“Two thirds of Republicans didn’t vote for Trump, but most are making their peace with him. And the money people are coming back to Trump,” Jillson said. “But … for a party to be competitive, they have to pull 90 percent of their electorate. And if you’re only pulling 85 percent up to 90 percent, you’ll lose. And that will effect congressional races and some state races.”

And the best place to watch the Trump effect in action on election night might be Houston’s First and Fourteenth Courts of Appeals and Dallas’ Fifth Court of Appeals. Those courts, which have six seats up for grabs, are based in solid Democratic counties but are surrounded by numerous smaller red counties that have made those courts safe seats for Republicans for more than two decades.

The Trump effect has Democrats believing they now have the best shot ever for electing a complete slate of candidates to the Houston and Dallas courts of appeals. Democrats mounted a complete sweep of trial court races in Dallas County in 2006 and nearly took all of those seats in Harris County in 2008.

Those aren’t the only ones to watch. Dems lost a seat on the 13th Court of Appeals in the 2010 debacle, for example. That bench, held by 2008 Supreme Court candidate Linda Yanez, is up for re-election this year, and Dems have an experienced candidate in a judicial district that gave over 58% of the vote to a Democrat in 2008. There are Democrats running for Republican-held benches on the 4th (anchored in Bexar County) as well. The 13th should be the easiest pickup, with perhaps the 4th being next, and the 1st, 5th, and 14th more challenging still, but those are all opportunities that should be watched. The weeds get deeper from here, but you get the idea. There are available gains and attainable goals. We need to define what we want and figure out how we want to get them.

Plastic bag litigation update

This could be a big deal.

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Is a plastic bag a container? Does the definition of “solid waste management” include litter control?

If a state appeals court answers yes to both of those questions, regulations on plastic bags in several Texas cities — including Austin, Fort Stockton, and Port Aransas, which ban the bags, and Brownsville, which requires businesses to charge customers a $1 fee for the bags — could be in danger.

The Fourth Court of Appeals in San Antonio heard oral arguments Tuesday in Laredo Merchants Association v. City of Laredo, in which the merchants claim the city’s ban on single-use bags is illegal because existing state law regulating solid waste disposal preempts it.

The law in question is a small piece of Texas’ Health and Safety Code. Section 361.0961, passed into law by the 1993 Solid Waste Disposal Act, says that local governments can’t adopt regulation to “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.” Arguments on Tuesday focused on the definitions of several phrases in the law, especially “container or package” and “solid waste management,” and what, precisely, the Legislature had intended.

The merchants’ case is the first challenge to a Texas municipality’s bag ordinance to make it to court. The Texas Retailers Association filed a suit against Austin’s bag ban in 2013 but later withdrew its petition, and Dallas repealed its bag fee after plastic bag manufacturers sued last year.

The Laredo merchants sued the city in March 2015, and appealed to the Fourth Court after the 341st Judicial District Court in Webb County sided with the city last June. A victory for the merchants could mean the overturning of local bag regulations across the state, while a win for Laredo could encourage other cities to pass regulations of their own.

[…]

On its face, the case is a fight over flimsy pieces of plastic. But the series of amicus briefs filed on each side establish that a much weightier issue is at stake: How much power do local governments have to establish regulations that affect commerce? Three Texas state senators and 17 state representatives, all Republicans, filed an amicus brief last week in support of the merchants, arguing, like the Texas Public Policy Foundation, that state law preempts the bag ban. The Texas Municipal League filed a brief in support of the city. Executive director Bennett Sandlin told the Tribune that the bag issue is one where local control is particularly important because different cities have different environmental concerns; Fort Stockton, for example, cited cattle deaths from ingesting plastic as a reason for the bag ban.

The implications of the local control dispute go beyond plastic bags and extend to ridesharing, energy, rent control, and other areas where municipalities have sought to pass stringent regulations. Last May, Gov. Greg Abbott signed into law House Bill 40, which limited local regulation of drilling activities after Denton voted to ban hydraulic fracking in the city. Recently, legislators have vowed to address local rules on ridesharing companies like Uber and Lyft.

“We’ve got a Legislature that used to believe in local control and now, some of them, all they believe is control of the locals,” Sandlin said. “We’re facing it not just in plastic bags but any number of issues.”

You can say that again. I’ve blogged a bunch about plastic bags, but this lawsuit had escaped my notice till now. I fully expect the issue to be on the agenda for the Lege in 2017 no matter what happens here. It’s not that Texas Republicans love regulating individual behavior, it’s that they do not recognize as legitimate any form of governance that does things they don’t approve of. They sue the feds, and now the cities are squarely in their sights. Look at the words of two-bit authoritarians like Sen. Don Huffines, who was quoted again in this story, and ask yourself whatever happened to the Republican brand of “small government”. Whatever else these guys are now, that ain’t it.