Case 1:17-cv-00425-SS Document 16 Filed 05/24/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS,

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS; SALLY §

HERNANDEZ, in her official capacity as §

Sheriff of Travis County, Texas; CITY OF §

AUSTIN, TEXAS; ORA HOUSTON,

§

DELIA GARZA, SABINO RENTERIA, §

GREGORIO CASAR, ANN KITCHEN, §

JIMMY FLANNIGAN, LESLIE POOL, §

ELLEN TROXCLAIR, KATHIE TOVO, §

and ALISON ALTER, all in their official §

capacities as City Council Members of the §

City of Austin, Texas; STEVE ADLER, in §

his official capacity as Mayor of the City of §

Austin, Texas; ELAINE HART, in her §

official capacity as Interim City Manager of §

the City of Austin, Texas; and the

§

MEXICAN AMERICAN LEGAL

§

DEFENSE AND EDUCATION FUND, §

Defendants.

§

CIVIL ACTION NO. 1:17-CV-425-SS

CITY OF AUSTIN’S MOTION TO DISMISS

TO THE HONORABLE SAM SPARKS, UNITED STATES DISTRICT JUDGE:

The City of Austin, Interim City Manager Elaine Hart, City Council Members Ora

Houston, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Jimmy Flannigan, Leslie

Pool, Ellen Troxclair, Kathie Tovo, and Alison Alter, and Mayor Steve Adler (all together, “City”)

file this motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

I.

SUMMARY

1. Texas’ suit seeks to fabricate a case or controversy based upon public statements

by City officials who believe Senate Bill No. 4 (SB 4) is unconstitutional. The suit fails to establish

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jurisdiction because Texas has suffered no injury, the law is not in effect, and the State’s complaint seeks an impermissible advisory opinion. Thus, the City’s motion to dismiss should be granted.
II. FACTS DEFEATING JURISDICTION A. Texas Filed Suit Before SB 4 Went into Effect 2. The State filed this suit on May 7, 2017. Dkt. 1. 3. Because SB 4 did not garner a two-thirds majority of all members elected to each house, the law will go into effect on September 1, 2017.1 See Dkt. 1-1 at 16 (§ 7.02); id. at 17 (showing votes of Senate and House achieving less than a two-thirds majority). B. Texas Complains that City Officials Criticized SB 4 Before it Became a Law 4. Texas complains that City officials publicly expressed their belief that SB 4 is not a constitutional exercise of the State’s power. See Dkt. 1 ¶¶ 10, 113, 147-149. 5. Although Texas alleges that the City is violating SB 4 in various ways, it fails to identify any alleged acts or omissions of the City occurring between the time the Governor signed SB 4 into law and the time of suit. Texas has not—and cannot—identify any City acts or omissions violating SB 4 that occur after the effective date of September 1, 2017. C. SB 4 Contains Provisions to Punish Non-Compliant Municipalities and Officials 6. SB 4 prohibits “local entities” (a term defined to include municipalities and their employees and officials) from adopting, enforcing, or endorsing any policy that would prohibit or “materially limit” local police or other officials from enforcing “immigration laws.” Dkt. 1-1 at 56 (§ 752.053). To enforce compliance with this provision, SB 4 provides that the Texas Attorney General may file suit to seek a civil penalty against a non-complaint local entity. If awarded by the
1 Texas inexplicably omits the effective date of SB 4 from its complaint, instead pleading “Senate Bill is Texas law as of May 7, 2017.” Dkt. 1 ¶ 115.
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court, the penalty must be between $1,000 and $1,500 for the first day of a violation, and between $25,000 and $25,500 for each additional day of a violation. Id. at 6-7 (§§ 752.055-752.056).
7. SB 4 punishes any elected or appointed official who “adopt[s], enforce[s], or endorse[s]” a policy that limits local police investigations of immigration status. Id. at 8-9 (§ 752.0565 (incorporating by reference § 752.053). Pursuant to this provision, SB 4 requires the Attorney General to file a quo warranto action against any elected or appointed official if the AG is presented with evidence, “including evidence of a statement by the public officer,” establishing probable cause that the official violated SB 4 by, for example, endorsing an objectionable policy. The penalty for an official found “guilty as charged” is removal from office. Id.
III. ARGUMENT AND AUTHORITIES A. A Plaintiff Must Establish Standing to Invoke the Jurisdiction of this Court
8. The United States Constitution limits the jurisdiction of the federal courts to “Cases” or “Controversies.” U.S. CONST., Art. III, § 2. “The doctrine of standing gives meaning to these constitutional limits by identifying those disputes which are appropriately resolved through the judicial process.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (internal citation omitted).
9. To establish standing, a plaintiff must show: (1) it has suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is fairly traceable to defendant’s conduct; and (3) a favorable judgment is likely to redress the injury. Cruz v. Abbott, 849 F.3d 594, 598 (5th Cir. 2017). To satisfy the injury-in-fact requirement, a plaintiff must allege an injury that is actual or imminent, not conjectural or hypothetical. Id.
10. The Declaratory Judgment Act also requires an “actual controversy” between the parties before a federal court may exercise its jurisdiction. 28 U.S.C. § 2201(a); Aetna Life Ins.
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Co. v. Haworth, 300 U.S. 227, 239-41 (1937). The standard under Article III is “identical to the actual controversy requirement under the Declaratory Judgment Act.” Texas v. West Pub’g Co., 882 F.2d 171, 175 (5th Cir. 1989), cert. denied, 493 U.S. 1058 (1990). A district court lacks subject matter jurisdiction to issue a declaratory action pursuant to 28 U.S.C. § 2201(a) unless an actual controversy exists. Id.; see also Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000).
11. “Federal courts do not render advisory opinions.” Life Partners, Inc. v. Life Ins. Co. of North America, 203 F.3d 324, 325 (5th Cir. 1999). “It is not the function of district courts to sit in judgment on these nice and intriguing questions which today may readily be imagined, but may never in fact come to pass.” Villas at Parkside Partners v. City of Farmers Branch, 577 F.Supp.2d 880, 883 (N.D.Tex. 2008) (citation omitted). The Supreme Court has rejected attempts to use the Declaratory Judgment Act to obtain an advisory opinion:
The declaratory judgment procedure is available in the federal courts only in cases involving an actual case or controversy, where the issue is actual and adversary, and it may not be made the medium for securing an advisory opinion in a controversy which has not arisen. Coffman v. Breeze Corp., 323 U.S. 316, 324 (1945) (citations omitted). 12. “The refusal to provide advisory opinions is even greater in cases seeking a determination of the constitutionality of a law.” Villas at Parkside, 577 F.Supp.2d at 884 (citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-47 (1936)). In Villas at Parkside, the City of Farmers Branch attempted to obtain a ruling on the constitutionality of an ordinance it had recently passed. The district court dismissed the action for lack of jurisdiction, ruling that the City sought an impermissible advisory opinion. 577 F.Supp.2d at 885. In reaching its conclusion, the district court reasoned that “it would open a Pandora's box and invite every local government to seek a court's judicial blessing on an ordinance by giving it a prospective effective date and filing
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legal action to obtain an advisory opinion on the constitutionality of the ordinance before it went into effect.” Id. at 884-85. In this case, with this lawsuit, the State of Texas is inviting the Court to open this Pandora’s box. The Court should reject that invitation and dismiss the State’s claims.
B. Texas Failed to Allege Any Constitutional Injury 13. Texas claims the Fourth Amendment, the 10th Amendment, and the Supremacy
Clause as the bases for its suit. Dkt. 1 ¶¶ 155-202. The State has failed to allege any conduct by the City that violates any of these constitutional provisions, however.
15. In regard to the Fourth Amendment, Texas does not allege that it has suffered any unreasonable search or seizure, nor that the City is responsible for any such injury. Thus, it has failed to establish standing to sue under the Fourth Amendment.
16. In regard to the 10th Amendment, the Constitution provides for an action against the federal government based upon impermissible “commandeering” of state resources. See, e.g., Printz v. U.S., 521 U.S. 898 (1997). Texas does not allege any facts that would support a 10th Amendment cause of action against the City, however, and thus fails to establish standing.
17. Finally, in regard to the Supremacy Clause, the State does not cite any City law or ordinance that would be preempted by federal law. Accordingly, the State has failed to establish jurisdiction over its preemption cause of action
C. Texas Seeks an Impermissible Advisory Opinion 18. SB 4 is not in effect. Texas attempts to cure this problem by arguing that SB 4 is
“law.” Dkt. 1 ¶ 115. Simply claiming that a bill has been signed and printed does not cure the State’s jurisdictional defect, however. It is impossible for the City to take any action that would violate a not yet effective law, much less impose a cognizable legal injury upon the State. Accordingly, Texas has failed to establish standing and cannot invoke this Court’s jurisdiction.
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19. Highlighting this jurisdictional defect, the Texas Attorney General filed suit mere hours after Governor Abbott signed SB 4 into law. Texas names twelve individual City defendants but does not identify any unconstitutional conduct that occurred in the period of time between the bill becoming a law and the suit being filed. Given that the Governor announced his signing online via “Facebook Live,” Sunday evening, May 7, 2017,2 and given that the AG filed suit at midnight that same evening, it is not surprising that the State cannot identify a single objectionable act during the relevant time period.
D. Equitable Relief is Inappropriate Because Texas Has an Adequate Remedy at Law 20. The Declaratory Judgment Act confers no jurisdiction but is instead a procedural
device designed to provide an additional remedy for the federal court toolbox. See Haworth, 300 U.S. at 239-40. A district court is not required to provide declaratory judgment relief, and it is a matter for the district court’s sound discretion whether to decide a declaratory judgment action. Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 601 (5th Cir. 1983).
21. A court may properly consider the existence of an adequate alternate remedy when dismissing a declaratory judgment claim for lack of jurisdiction. Mission, 706 F.2d at 603 (citing 10A C. Wright, Miller & M. Kane, Federal Practice & Procedure: § 2758 (2d ed. 1983)); see also Granite State Ins. Co. v. Tandy Corp., 986 F.2d 94, 95-96 and fn. 3 (5th Cir. 1992) (noting that Mission states the 5th Circuit rule for discretionary jurisdiction over declaratory judgment claims).
2 See https://www.facebook.com/TexasGovernor/videos/10155316084703256/?hc_ref=SEARCH (last accessed May 18, 2017); see also “Texas Gov. Abbott springs surprise on critics, with unannounced Facebook live signing of sanctuary ban,” Washington Post, May 8, 2017, at https://www.washingtonpost.com/news/morning-mix/wp/2017/05/08/texas-gov-abbott-springssurprise-on-critics-signing-sanctuary-cities-ban-unannounced-on-facebooklive/?utm_term=.e79324c0c394 (last accessed May 18, 2017).
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22. Here, if SB 4 takes effect, the law provides its own remedial scheme. The State can seek to impose large civil fines on municipalities that protect their immigrant populations, and the State can seek to remove from office elected officials who dare to advocate for the civil and human rights of their constituents. Here, the City has done nothing that would trigger Texas’ the right to sue. Indeed, the City could not do anything that would give the State the right to seek relief until SB 4 goes into effect. Even if the State is insecure about the constitutionality of a law the Legislature passed and the Governor signed, this Court is not the venue for the State to seek relief from any anxiety.
PRAYER Texas has failed to establish subject matter jurisdiction. The City requests that the Court grant its motion to dismiss.
Respectfully submitted, ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION /s/ Michael Siegel MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 Michael.Siegel@austintexas.gov Christopher.Coppola@austintexas.gov ATTORNEYS FOR CITY DEFENDANTS
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CERTIFICATE OF SERVICE This is to certify that I have served a copy of the foregoing City Defendants’ Original Answer on all parties, or their attorneys of record, in compliance with the Federal Rules of Civil Procedure, this 24th day of May, 2017. Via Electronic Filing Brantley D. Starr, Deputy First Assistant Attorney General Michael C. Toth, Special Counsel to the First Assistant Attorney General Andrew D. Leonie, Associate Deputy Attorney General Austin R. Nimocks, Associate Deputy Attorney General Darren McCarty, Special Counsel for Civil Litigation David J. Hacker, Senior Counsel Joel Stonedale, Counsel Office of Special Litigation Attorney General of Texas P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 ATTORNEYS FOR PLAINTIFF
/s/ Michael Siegel MICHAEL SIEGEL
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 Case 1:17-cv-00425-SS Document 18 Filed 05/26/17 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS,

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS;

§

SALLY HERNANDEZ, in her official

§

capacity as Sheriff of Travis County,

§

Texas; CITY OF AUSTIN, TEXAS;

§

ORA HOUSTON, DELIA GARZA,

§

SABINO RENTERIA, GREGORIO

§

CASAR, ANN KITCHEN, JIMMY

§

FLANNIGAN, LESLIE POOL,

§

ELLEN TROXCLAIR, KATHIE TOVO, §

And ALISON ALTER, all in their official §

Capacities as City Council Members of

§

The City of Austin, Texas; STEVE

§

ADLER, in his official capacity as

§

Mayor of the City of Austin, Texas;

§

ELAINE HART, in her official capacity §

as Interim City Manager of the City of

§

Austin, Texas; and the MEXICAN

§

AMERICAN LEGAL DEFENSE AND

§

EDUCATION FUND;

§

Defendant.

§

Civil Action No. 1:17-cv-00425-SS

DEFENDANTS’ TRAVIS COUNTY AND SHERIFF SALLY HERNANDEZ’S MOTION TO DISMISS PURSUANT TO RULE 12 (b)(1) AND MOTION FOR EXPEDITED RULING

TO THE HONORABLE JUDGE SAM SPARKS:

COME NOW, Defendants Travis County and Sheriff Sally Hernandez, in her official

capacity as Sheriff of Travis County, (hereafter “Travis County”) and file this Motion to Dismiss pursuant to F.R.C.P. 12 (b)(1).1 Travis County respectfully moves the Court to dismiss Plaintiff

1 An “official capacity” lawsuit is in actuality a lawsuit against the unit of government. Will v. Michigan Dept. of State Police. 491 U.S. 58, 71 (1989).

Motion to Dismiss Pursuant to Rule12(b)(6)

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State of Texas’ (hereafter “the State”) Complaint for want of subject matter jurisdiction and in support thereof, Travis County offers the following:
I. SUMMARY In its Complaint, [DKT 1] the State prays that the Honorable Court declare as constitutional a statute, S.B. 4, that under Texas law, is already presumed constitutional. Burlington Northern & Santa Fe Ry.Co. v. Poole Chemical Co., 419 F. 3d 355, 361 (5th Cir. 2005) citing Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W. 2d 931, 934 (Tex. 1996). The State, and its allegations, fail to properly invoke the Court’s juridisdiction for two related reasons: (1) the relief as sought by the State is not justiciable; and (2) the State does not have standing to pursue the relief it seeks. Article III of the U.S. Constitution provides federal courts with the jurisdiction to adjudicate “‘concrete legal issues, presented in actual cases, not abstractions.’” Golden v. Zwickler, 394 U.S. 103 108 (1969) quoting United Public Workers of America v Mitchell, 330 U.S. 75, 89 (1947). Justiciablity is a broader concept that includes standing. Flast v. Cohen, 392 U.S. 83, 95 (1968). The reach of justiciablity is “illustrated by the various grounds upon which questions sought to be adjudicated in the federal courts have been held not to be justiciable. Thus, no justiciablity controversy is presented when . . . the parties are asking for an advisory opinion.” Id. As for the somewhat narrower concept of standing, the Supreme Court has held, “[t]he doctrine of standing gives meaning to these constitutional limits [“cases” and “controversies” under Art. III] by ‘idenify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehous, 134 S. Ct. 2334, 2341 (2014) quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Both justiciablity and standing are

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threshold jurisdictional issues. Farmer v. Mabus, 940 F. 2d 921 (5th Cir. 1991). The State has not, and cannot, meet these threshold jurisdictional requirements, and for these reasons, this case should be dismissed pursuant to F.R.C.P. 12 (b)(1).
II. TRAVIS COUNTY JOINS IN THE CITY’S MOTION TO DISMISS Travis County joins in the City of Austin’s Motion to Dismiss [DKT 16] and offers this motion as a supplement to the City’s arguments.
III. STANDARD OF REVIEW Given the frivolous nature of the State’s claim, sua sponte dismissal of this case is appropriate; the State has not properly invoked the Honorable Court’s jursidcition and a case may not proceed forward with such a serious jurisidictional defect. Gonzalez v. Thaler, 555 U.S. 134, 141 (2012). Nonetheless, Travis County moves for dismissal of the State’s cause pursuant to F.R.C.P. 12(b)(1) which authorizes dismissal of a case for lack of subject matter jurisdiction. Under 12(b)(1), a claim may not be dismissed unless it appears certain that a plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Benston v. United States, 960 F. 2d 19, 21 (5th Cir. 1992) citing Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). If the State’s allegations are taken as true, it has not properly invoked the Court’s jurisdiction and, pursuant to F.R.C.P. 12(b)(1), this Motion to Dismiss must be granted. Id.
IV. MOTION FOR EXPEDITED RULING The State has filed a Motion to Consolidate [DKT 17] in an effort to consolidate into the instant case, a case from San Antonio, Civil Action No. 5:17-cv-404-OG; City of El Cenizo, Texas, et al; In the United States District Court for the Western District of Texas; San Antonio Division. Travis County asserts that the Court can either dismiss the State’s case sua sponte or

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grant this Motion to Dismiss, as well as those of the other Defendants, and mooting the State’s Motion to Consolidate. Benton v. U.S. E.P.A., 2013 WL 4483091 *1. It appears that the State has filed the instant case to take advantage of the “first filed” rule, and thereby, provoking a “disorderly race to the courthouse” by some of those parties who are interested in S.B. 4. Such action by the State is not supported by the Fifth Circuit nor the Supreme Court. See Amerada Petroleum Corp., v. Marshall, 381 F. 2d 661, 663 (5th Cir. 1967); Cunningham Brothers, Inc. v. Bail, 407 F. 2d 1165 (7th Cir.), cert. denied, 395 U.S. 959 (1969). For these reason, Travis County requests an expedited ruling on all Motions to Dismiss in this case and such ruling will render as moot the State’s Motion to Consolidate.
IV. ARGUMENTS AND AUTHORITIES A. Background and State’s Allegations.
Immediately after Governor Abbott signed S.B. 4, which will become effective on September 1, 2017, the State filed the instant suit, a Complaint for Declaratory Judgement naming as defendants local governments, elected officials and a non-profit advocacy group. In this suit, the State is requesting that this Court declare the State’s own statute, S.B. 4, constitutional even though S.B. 4 is already presumed to be constititutional under Texas law, see Burlington Northern & Santa Fe Ry.Co. v. Poole Chemical Co., supra.
In an effort to establish a strawman defendant, the State relies on two incorrect assertions: first, the State asserts, falsely, that S.B.4 is “law as of May 7, 2017.” 2 [DKT. 1 p. 10, 113, 147149] even though it will not become effective until September 1, 2017. Second, the State asserts that statements made by Sheriff Hernandez and Travis County Judge Eckhardt prior to S.B. 4’s

2 Evidence of the disingenuous nature of the State’s Complaint in the instant case is found in the State’s own Motion to Transfer Venue filed in San Antonio [Dkt. 14]. In the San Antonio pleading, the State alleges that S.B. 4 will not take effect until September 1, 2017, whereas in the instant case, the State asserts that S.B.4 is already the applicable law and that the Defendants are violating it.

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passage constitute a current violation of the S.B. 4 because these officials were publicly opposed to the concepts underlying S.B. 4. [Dkt 1 p. 2 & 14]. The State further complains that Travis County, generally, does not cooperate with federal immigration detainer requests and that this alleged lack of cooperation hampers the federal government’s authority. [DKT 1 p. 15].
B. State is not, and will never be, the proper plaintiff; lacks standing. While a federal court would have jurisdiction to determine whether, or not, S.B. 4
complies with various aspects of the United States Constitution, the State is not, and can never be, the proper plaintiff to request such a determination: not now and not after S.B. 4 goes into effect on September 1. As a plaintiff requesting a judicial affirmation of its own statute, a statute that is already presumed constitutional, the State does not have standing to pursue such a declaration by a federal court.
The jurisdiction of the Federal Court is both “defined and limited by Article III of the Constitution.” Susan v. Anthony List v. Driehous, 134 S. Ct. at 2341. Further, the Court’s power is restricted to “cases and controversies.” Id. The doctrine of standing gives meaning to which disputes are appropriately resolved through the judicial process. Id. In making a determination on standing for Article III purposes, courts must make two inquiries: (1) is the party who is attempting to invoke federal court jurisdiction a proper party to bring the claim; and (2) what is the claim sought to be adjudicated. Flast v. Cohen, 392 U.S. 83, 99-102. Also see, Warth v. Seldon, 422 U.S. 490 (1975). To determine whether a party has standing, courts must discern, the “nexus between the status asserted by the litigant and the claim he presents to insure that [the litigant] is a proper and appropriate party to invoke federal jurisdiction.” Flast v. Cohen, 392 U.S. at 102.

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Regarding part one of the standing inquiry, “the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Id at 99-100. The Supreme Court continues, “A proper party is demanded so that federal courts will not be asked to decide ‘ill-defined controversies over constitutional issues.’” Id. citing United Public Workers of America v. Mitchell, 330 U.S. at 90. The Supreme Court likens the “proper party” aspect of the standing inquiry to the rule that the federal courts will not entertain friendly lawsuits. Flast v. Cohen, 392 U.S. at 100.
As for part two of the standing inquiry, i.e. the dispute in question, the inquiry is as follows: “whether the dispute touches upon “the legal relation of parties having adverse legal interests.” Id.
When applying part one of the standing analysis to the instant cause, it is evident that the State will never be a proper plaintiff for seeking a declaration on the constitutionality of its own statute. This is because the statute is presumed constitutional and any opinion rendered in favor of the State would just be further affirmation of the statute’s constitutionality, and thereby advisory in nature. (See discussion, infra). In seeking this affirmation by the Court, the State is like a party in a friendly lawsuit: seeking a court to “sign off” on something that the State already presumes is true i.e. the alleged constitutionality of S.B. 4.
As to the second part of the inquiry, i.e. the claim sought to be adjudicated, the constitutionality of S.B. 4 could, appropriately, be called into question, but that cause must be asserted by parties who are challenging the constutitionality of S.B 4, and therefore, have legal interests that are adverse to those of the State. Flast v. Cohen, 392 U.S. at 101-102. Such a party i.e. a party that has an interest adverse to the State, would be a proper party to challenge the

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constitutionality of S.B. 4. is Flast v. Cohen, 392 U.S. at 99-101. For these reasons, this motion to dismiss should be granted.

C. State is seeking an advisory opinion contrary to Article III. In essence, the State is seeking an advisory opinion from the Honorable Court and such a
request is not justiciable. Flast v, Cohen, 392 U.S. at 95-96. In quoting a well known treatise, the Supreme Court asserts that ‘the oldest and most consistent thread in federal law of justiciability is that federal courts will not give advisory opinions.’” Flast v. Cohen, 392 U.S. at 96. quoting C. Wright, Federal Courts 34 (1963). Regarding advisory opinions, the Supreme Court cautions, “[w]hen a court is asked to provide an opinion on actions of the legislative branch, without a dispute that could be resolved through the judicial process, such opinion would be contrary to the separation of powers prescribed by the Constitution under Article III, and thereby, such court would lack jurisdiction over the issue.” Id. Here, the State’s Complaint [DKT 1] requesting that the Honorable Court declare as constitutional a statute that is already presumed constitutional under Texas law, lacks a concrete dispute that can be resolved through the judicial process. Any opinion rendered by the Honorable Court on the validity of the State’s Complaint would be advisory in nature. For this reason, the case should be dismissed for lack of jurisdiction.
D. The State does not meet the requirements of the Declaratory Judgment Act. In the alternative, and in addition to the preceeding arguments, Travis County asserts an
additional reason for dismissal: the State does not meet the requirements of the Declaratory Judgment Act. Despite the hypothetical nature of the State’s claims, it has chosen to sue Travis County pursuant to the Declaratory Judgement Act. The Declaratory Judgment Act is limited to

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“actual controversies within the jurisdiction.” 28 U.S.C. 2201. Also see, Golden v. Zwickler, 394 U.S. at 109- 110. For a court to adjudicate constitutional issues, those issues must be “concrete legal issues, presented in actual cases, not abstractions.” Id. quoting United Public Workers of American v. Mitchell, 330 U.S. at 89. As the Supreme Court holds, “No federal court whether this court or district court, has ‘jurisdiction to pronounce any statute, either of a state or of the United States, void, because it is irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ . . . The express limitation of the Declaratory Judgment Act to cases of actual controversy is an explicit recognition of this principle.” Golden v. Zwicker, 394 U.S. at 110 quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 22 , 39 (1885). (Emphasis added). While there may be a forum for the federal government or the State to address immigration enforcement concerns regarding Travis County, a declaratory judgement action in federal court is not the correct vehicle or forum. For this reason, this case should be dismissed for lack of jurisdiction.
E. Conclusion Travis County respectfully requests that the Honorable Court dismiss the State’s
Complaint under F.R.C.P. 12(b)(1) because the Court lacks subject matter jurisidiction for the following reasons: (1) the State is not, and can never be, the proper plaintiff to seek a declaration affirming the constitutionality of S.B. 4, a statute that is, by state law, presumed constitutional until a court finds otherwise; (2) the State seeks a declaration by the Court that the State’s own statute, S.B. 4, complies with the U.S. Constitution, and thereby, the State seeks an opinion from the Court that is advisory in nature; (3) the State’s Complaint fails to comply with the requirements of the Declaratory Judgment Act. For these reasons, Travis County’s Motion to Dimiss should be granted.

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V. PRAYER For these reasons Travis County respectfully prays that the Honorable Court dismiss the State’s cause pursuant to F.R.C.P. 12 (b)(1), expedite a ruling on this matter, and for all other relief both at law and in equity to which Travis County may be justly entitled.
Respectfully submitted,

DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY P. O. Box 1748 Austin, Texas 78767 (512) 854-9415 (512) 854-4808 FAX

and
ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION

By: /s/ Sherine E. Thomas Sherine E. Thomas Assistant County Attorney State Bar No. 00794734 sherine.thomas@traviscountytx.gov Sharon K. Talley Assistant Travis County Attorney State Bar No. 19627575 sharon.talley@traviscountytx.gov Anthony J. Nelson Assistant County Attorney State Bar No. 14885800 tony.nelson@traviscountytx.gov Laurie R. Eiserloh Assistant County Attorney State Bar No. 06506270 laurie.eiserloh@traviscountytx.gov Tim Labadie Assistant County Attorney tim.labadie@traviscountytx.gov
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS

/s/ Michael Siegel MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 Michael.Siegel@austintexas.gov Christopher.Coppola@austintexas.gov
ATTORNEYS FOR CITY OF AUSTIN DEFENDANTS

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Case 1:17-cv-00425-SS Document 18 Filed 05/26/17 Page 10 of 10

CERTIFICATE OF SERVICE I hereby certify that on the 26th day of May, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:

Via Electronic Mail Sherine E. Thomas Sharon Talley Anthony J. Nelson Laurie R. Eiserloh Tim Labadie P.O. Box 1748 Austin, Texas 78767 ATTORNEYS FOR DEFENDANTS, TRAVIS COUNTY AND SHERIFF HERNANDEZ
Via Electronic Mail Christopher Coppola Michael J. Weills Siegel
City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 ATTORNEYS FOR DEFENDANTS CITY OF AUSTIN AND INDIVIDUAL CITY DEFENDANTS

Via Electronic Mail Ken Paxton Attorney General of Texas Jeffrey C. Mateer First Assistant Attorney General Brantley D. Starr Deputy First Assistant Attorney General Brantley.starr@oas.texas.gov Michael C. Toth Special Counsel to the First Assistant, Attorney General Andrew D. Leonie Associate Deputy Attorney General Austin D. Leonie Associate Deputy Attorney General Austin R. Nimocks Associate Deputy Attorney General Darren McCarty Special Counsel for Civil Litigation David J. Hacker Senior Counsel Joel Stonedale Counsel
Office of Special Litigation Attorney General of Texas P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 ATTORNEYS FOR TEXAS

/s/ Sherine E. Thomas

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 Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS,

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS;

§

SALLY HERNANDEZ, in her official

§

capacity as Sheriff of Travis County,

§

Texas; CITY OF AUSTIN, TEXAS;

§

ORA HOUSTON, DELIA GARZA,

§

SABINO RENTERIA, GREGORIO

§

CASAR, ANN KITCHEN, JIMMY

§

FLANNIGAN, LESLIE POOL,

§

ELLEN TROXCLAIR, KATHIE TOVO, §

And ALISON ALTER, all in their official §

Capacities as City Council Members of

§

The City of Austin, Texas; STEVE

§

ADLER, in his official capacity as

§

Mayor of the City of Austin, Texas;

§

ELAINE HART, in her official capacity §

as Interim City Manager of the City of

§

Austin, Texas; and the MEXICAN

§

AMERICAN LEGAL DEFENSE AND

§

EDUCATION FUND;

§

Defendant.

§

Civil Action No. 1:17-cv-00425-SS

DEFENDANTS’ TRAVIS COUNTY AND SHERIFF SALLY HERNANDEZ’S AMENDED MOTION TO DISMISS PURSUANT TO RULE 12 (b)(1) AND REQUEST TO EXPEDITE RULING

TO THE HONORABLE JUDGE SAM SPARKS:

COME NOW, Defendants Travis County and Sheriff Sally Hernandez, in her official

capacity as Sheriff of Travis County, (hereafter “Travis County”) and file this Amended Motion to Dismiss pursuant to F.R.C.P. 12 (b)(1) and Request to Expedite Ruling.1 Travis County

respectfully moves the Court to dismiss Plaintiff State of Texas’ (hereafter “the State”)

1 An “official capacity” lawsuit is in actuality a lawsuit against the unit of government. Will v. Michigan Dept. of State Police. 491 U.S. 58, 71 (1989).

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 2 of 12
Complaint for want of subject matter jurisdiction and in support thereof, Travis County offers the following:
I. SUMMARY In its Complaint, [DKT 1] the State prays that the Honorable Court declare as constitutional a statute, S.B. 4, that under Texas law, is already presumed constitutional. Burlington Northern & Santa Fe Ry.Co. v. Poole Chemical Co., 419 F. 3d 355, 361 (5th Cir. 2005) citing Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W. 2d 931, 934 (Tex. 1996). The State, and its allegations, fail to properly invoke the Court’s juridisdiction for two related reasons: (1) the relief as sought by the State is not justiciable; and (2) the State does not have standing to pursue the relief it seeks. Article III of the U.S. Constitution provides federal courts with the jurisdiction to adjudicate “‘concrete legal issues, presented in actual cases, not abstractions.’” Golden v. Zwickler, 394 U.S. 103 108 (1969) quoting United Public Workers of America v Mitchell, 330 U.S. 75, 89 (1947). Justiciablity is a broader concept that includes standing. Flast v. Cohen, 392 U.S. 83, 95 (1968). The reach of justiciablity is “illustrated by the various grounds upon which questions sought to be adjudicated in the federal courts have been held not to be justiciable. Thus, no justiciablity controversy is presented when . . . the parties are asking for an advisory opinion.” Id. As for the somewhat narrower concept of standing, the Supreme Court has held, “[t]he doctrine of standing gives meaning to these constitutional limits [“cases” and “controversies” under Art. III] by ‘idenify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehous, 134 S. Ct. 2334, 2341 (2014) quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Both justiciablity and standing are

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 3 of 12
threshold jurisdictional issues. Farmer v. Mabus, 940 F. 2d 921 (5th Cir. 1991). The State has not, and cannot, meet these threshold jurisdictional requirements, and for these reasons, this case should be dismissed pursuant to F.R.C.P. 12 (b)(1).
II. TRAVIS COUNTY JOINS IN THE CITY’S MOTION TO DISMISS Travis County joins in the City of Austin’s Motion to Dismiss [DKT 16] and offers this motion as a supplement to the City’s arguments.
III. STANDARD OF REVIEW Given the frivolous nature of the State’s claim, sua sponte dismissal of this case is appropriate; the State has not properly invoked the Honorable Court’s jursidcition and a case may not proceed forward with such a serious jurisidictional defect. Gonzalez v. Thaler, 555 U.S. 134, 141 (2012). Nonetheless, Travis County moves for dismissal of the State’s cause pursuant to F.R.C.P. 12(b)(1) which authorizes dismissal of a case for lack of subject matter jurisdiction. Under 12(b)(1), a claim may not be dismissed unless it appears certain that a plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Benston v. United States, 960 F. 2d 19, 21 (5th Cir. 1992) citing Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). If the State’s allegations are taken as true, it has not properly invoked the Court’s jurisdiction and, pursuant to F.R.C.P. 12(b)(1), this Amended Motion to Dismiss must be granted. Id.
IV. REQUEST TO EXPEDITE RULING The State has filed a Motion to Consolidate [DKT 17] in an effort to consolidate into the instant case, a case from San Antonio, Civil Action No. 5:17-cv-404-OG; City of El Cenizo, Texas, et al; In the United States District Court for the Western District of Texas; San Antonio Division. Travis County asserts that the Court can either dismiss the State’s case sua sponte or

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 4 of 12

grant this Motion to Dismiss, as well as those of the other Defendants, and mooting the State’s Motion to Consolidate. Benton v. U.S. E.P.A., 2013 WL 4483091 *1. It appears that the State has filed the instant case to take advantage of the “first filed” rule, and thereby, provoking a “disorderly race to the courthouse” by some of those parties who are interested in S.B. 4. Such action by the State is not supported by the Fifth Circuit nor the Supreme Court. See Amerada Petroleum Corp., v. Marshall, 381 F. 2d 661, 663 (5th Cir. 1967); Cunningham Brothers, Inc. v. Bail, 407 F. 2d 1165 (7th Cir.), cert. denied, 395 U.S. 959 (1969). For these reason, Travis County requests an expedited ruling on all Motions to Dismiss in this case and such ruling will render as moot the State’s Motion to Consolidate.
IV. ARGUMENTS AND AUTHORITIES A. Background and State’s Allegations.
Immediately after Governor Abbott signed S.B. 4, which will become effective on September 1, 2017, the State filed the instant suit, a Complaint for Declaratory Judgement naming as defendants local governments, elected officials and a non-profit advocacy group. In this suit, the State is requesting that this Court declare the State’s own statute, S.B. 4, constitutional even though S.B. 4 is already presumed to be constititutional under Texas law, see Burlington Northern & Santa Fe Ry.Co. v. Poole Chemical Co., supra.
In an effort to establish a strawman defendant, the State relies on two incorrect assertions: first, the State asserts, falsely, that S.B.4 is “law as of May 7, 2017.” 2 [DKT. 1 p. 10, 113, 147149] even though it will not become effective until September 1, 2017. Second, the State asserts that statements made by Sheriff Hernandez and Travis County Judge Eckhardt prior to S.B. 4’s

2 Evidence of the disingenuous nature of the State’s Complaint in the instant case is found in the State’s own Motion to Transfer Venue filed in San Antonio [Dkt. 14]. In the San Antonio pleading, the State alleges that S.B. 4 will not take effect until September 1, 2017, whereas in the instant case, the State asserts that S.B.4 is already the applicable law and that the Defendants are violating it.

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 5 of 12
passage constitute a current violation of the S.B. 4 because these officials were publicly opposed to the concepts underlying S.B. 4. [Dkt 1 p. 2 & 14]. The State further complains that Travis County, generally, does not cooperate with federal immigration detainer requests and that this alleged lack of cooperation hampers the federal government’s authority. [DKT 1 p. 15].
B. State is not, and will never be, the proper plaintiff; lacks standing. While a federal court would have jurisdiction to determine whether, or not, S.B. 4
complies with various aspects of the United States Constitution, the State is not, and can never be, the proper plaintiff to request such a determination: not now and not after S.B. 4 goes into effect on September 1. As a plaintiff requesting a judicial affirmation of its own statute, a statute that is already presumed constitutional, the State does not have standing to pursue such a declaration by a federal court.
The jurisdiction of the Federal Court is both “defined and limited by Article III of the Constitution.” Susan v. Anthony List v. Driehous, 134 S. Ct. at 2341. Further, the Court’s power is restricted to “cases and controversies.” Id. The doctrine of standing gives meaning to which disputes are appropriately resolved through the judicial process. Id. In making a determination on standing for Article III purposes, courts must make two inquiries: (1) is the party who is attempting to invoke federal court jurisdiction a proper party to bring the claim; and (2) what is the claim sought to be adjudicated. Flast v. Cohen, 392 U.S. 83, 99-102. Also see, Warth v. Seldon, 422 U.S. 490 (1975). To determine whether a party has standing, courts must discern, the “nexus between the status asserted by the litigant and the claim he presents to insure that [the litigant] is a proper and appropriate party to invoke federal jurisdiction.” Flast v. Cohen, 392 U.S. at 102.

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 6 of 12
Regarding part one of the standing inquiry, “the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Id at 99-100. The Supreme Court continues, “A proper party is demanded so that federal courts will not be asked to decide ‘ill-defined controversies over constitutional issues.’” Id. citing United Public Workers of America v. Mitchell, 330 U.S. at 90. The Supreme Court likens the “proper party” aspect of the standing inquiry to the rule that the federal courts will not entertain friendly lawsuits. Flast v. Cohen, 392 U.S. at 100.
As for part two of the standing inquiry, i.e. the dispute in question, the inquiry is as follows: “whether the dispute touches upon “the legal relation of parties having adverse legal interests.” Id.
When applying part one of the standing analysis to the instant cause, it is evident that the State will never be a proper plaintiff for seeking a declaration on the constitutionality of its own statute. This is because the statute is presumed constitutional and any opinion rendered in favor of the State would just be further affirmation of the statute’s constitutionality, and thereby advisory in nature. (See discussion, infra). In seeking this affirmation by the Court, the State is like a party in a friendly lawsuit: seeking a court to “sign off” on something that the State already presumes is true i.e. the alleged constitutionality of S.B. 4.
As to the second part of the inquiry, i.e. the claim sought to be adjudicated, the constitutionality of S.B. 4 could, appropriately, be called into question, but that cause must be asserted by parties who are challenging the constutitionality of S.B 4, and therefore, have legal interests that are adverse to those of the State. Flast v. Cohen, 392 U.S. at 101-102. Such a party i.e. a party that has an interest adverse to the State, would be a proper party to challenge the

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 7 of 12
constitutionality of S.B. 4. is Flast v. Cohen, 392 U.S. at 99-101. For these reasons, this motion to dismiss should be granted.
C. State is seeking an advisory opinion contrary to Article III. In essence, the State is seeking an advisory opinion from the Honorable Court and such a
request is not justiciable. Flast v, Cohen, 392 U.S. at 95-96. In quoting a well known treatise, the Supreme Court asserts that ‘the oldest and most consistent thread in federal law of justiciability is that federal courts will not give advisory opinions.’” Flast v. Cohen, 392 U.S. at 96. quoting C. Wright, Federal Courts 34 (1963). Regarding advisory opinions, the Supreme Court cautions, “[w]hen a court is asked to provide an opinion on actions of the legislative branch, without a dispute that could be resolved through the judicial process, such opinion would be contrary to the separation of powers prescribed by the Constitution under Article III, and thereby, such court would lack jurisdiction over the issue.” Id. Here, the State’s Complaint [DKT 1] requesting that the Honorable Court declare as constitutional a statute that is already presumed constitutional under Texas law, lacks a concrete dispute that can be resolved through the judicial process. Any opinion rendered by the Honorable Court on the validity of the State’s Complaint would be advisory in nature. For this reason, the case should be dismissed for lack of jurisdiction.
D. The State does not meet the requirements of the Declaratory Judgment Act. In the alternative, and in addition to the preceeding arguments, Travis County asserts an
additional reason for dismissal: the State does not meet the requirements of the Declaratory Judgment Act. Despite the hypothetical nature of the State’s claims, it has chosen to sue Travis County pursuant to the Declaratory Judgement Act. The Declaratory Judgment Act is limited to “actual controversies within the jurisdiction.” 28 U.S.C. 2201. Also see, Golden v. Zwickler,

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 8 of 12
394 U.S. at 109- 110. For a court to adjudicate constitutional issues, those issues must be “concrete legal issues, presented in actual cases, not abstractions.” Id. quoting United Public Workers of American v. Mitchell, 330 U.S. at 89. As the Supreme Court holds, “No federal court whether this court or district court, has ‘jurisdiction to pronounce any statute, either of a state or of the United States, void, because it is irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ . . . The express limitation of the Declaratory Judgment Act to cases of actual controversy is an explicit recognition of this principle.” Golden v. Zwicker, 394 U.S. at 110 quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 22 , 39 (1885). (Emphasis added). While there may be a forum for the federal government or the State to address immigration enforcement concerns regarding Travis County, a declaratory judgement action in federal court is not the correct vehicle or forum. For this reason, this case should be dismissed for lack of jurisdiction.
E. Conclusion Travis County respectfully requests that the Honorable Court dismiss the State’s
Complaint under F.R.C.P. 12(b)(1) because the Court lacks subject matter jurisidiction for the following reasons: (1) the State is not, and can never be, the proper plaintiff to seek a declaration affirming the constitutionality of S.B. 4, a statute that is, by state law, presumed constitutional until a court finds otherwise; (2) the State seeks a declaration by the Court that the State’s own statute, S.B. 4, complies with the U.S. Constitution, and thereby, the State seeks an opinion from the Court that is advisory in nature; (3) the State’s Complaint fails to comply with the requirements of the Declaratory Judgment Act. For these reasons, Travis County’s Amended Motion to Dimiss should be granted.

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 9 of 12
V. PRAYER
For these reasons Travis County respectfully prays that the Honorable Court dismiss the
State’s cause pursuant to F.R.C.P. 12 (b)(1), expedite a ruling on this matter, and for all other
relief both at law and in equity to which Travis County may be justly entitled.
Respectfully submitted,
DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY P. O. Box 1748 Austin, Texas 78767 (512) 854-9415 (512) 854-4808 FAX
By: /s/ Sherine E. Thomas Sherine E. Thomas Assistant County Attorney State Bar No. 00794734 sherine.thomas@traviscountytx.gov Sharon K. Talley Assistant Travis County Attorney State Bar No. 19627575 sharon.talley@traviscountytx.gov Anthony J. Nelson Assistant County Attorney State Bar No. 14885800 tony.nelson@traviscountytx.gov Laurie R. Eiserloh Assistant County Attorney State Bar No. 06506270 laurie.eiserloh@traviscountytx.gov Tim Labadie Assistant County Attorney tim.labadie@traviscountytx.gov
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 10 of 12

CERTIFICATE OF SERVICE I hereby certify that on the 26th day of May, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:

Via Electronic Mail Sherine E. Thomas Sharon Talley Anthony J. Nelson Laurie R. Eiserloh Tim Labadie P.O. Box 1748 Austin, Texas 78767 ATTORNEYS FOR DEFENDANTS, TRAVIS COUNTY AND SHERIFF HERNANDEZ
Via Electronic Mail Christopher Coppola Michael J. Weills Siegel
City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 ATTORNEYS FOR DEFENDANTS CITY OF AUSTIN AND INDIVIDUAL CITY DEFENDANTS

Via Electronic Mail Ken Paxton Attorney General of Texas Jeffrey C. Mateer First Assistant Attorney General Brantley D. Starr Deputy First Assistant Attorney General Brantley.starr@oas.texas.gov Michael C. Toth Special Counsel to the First Assistant, Attorney General Andrew D. Leonie Associate Deputy Attorney General Austin D. Leonie Associate Deputy Attorney General Austin R. Nimocks Associate Deputy Attorney General Darren McCarty Special Counsel for Civil Litigation David J. Hacker Senior Counsel Joel Stonedale Counsel
Office of Special Litigation Attorney General of Texas P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 ATTORNEYS FOR TEXAS

/s/ Sherine E. Thomas

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 11 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS,

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS;

§

SALLY HERNANDEZ, in her official

§

capacity as Sheriff of Travis County,

§

Texas; CITY OF AUSTIN, TEXAS;

§

ORA HOUSTON, DELIA GARZA,

§

SABINO RENTERIA, GREGORIO

§

CASAR, ANN KITCHEN, JIMMY

§

FLANNIGAN, LESLIE POOL,

§

ELLEN TROXCLAIR, KATHIE TOVO, §

And ALISON ALTER, all in their official §

Capacities as City Council Members of

§

The City of Austin, Texas; STEVE

§

ADLER, in his official capacity as

§

Mayor of the City of Austin, Texas;

§

ELAINE HART, in her official capacity §

as Interim City Manager of the City of

§

Austin, Texas; and the MEXICAN

§

AMERICAN LEGAL DEFENSE AND

§

EDUCATION FUND;

§

Defendant.

§

Civil Action No. 1:17-cv-00425-SS

PROPOSED ORDER GRANTING DEFENDANTS TRAVIS COUNTY AND SHERIFF SALLY HERNANDEZ’S AMENDED MOTION TO DISMISS PURSUANT TO RULE 12(b)(1)
Before the Court is Defendants’ Amended Motion to to Dismiss Pursuant to Rule
12(b)(1). After careful consideration of the Motion, Plaintiff’s response, if any, and the
pleadings filed by the parties, the Court is of the opinion that the Motion has merit and should be
GRANTED. Accordingly, it is therefore

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Case 1:17-cv-00425-SS Document 19 Filed 05/26/17 Page 12 of 12 ORDERED, ADJUDGED and DECREED that Plaintiff's Causes of Action against Defendants Travis County, Texas and Travis County Sheriff Sally Hernandez are herby dismissed.
Honorable Sam Sparks, Presiding Judge

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 Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 1 of 60

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
TEXAS; and KEN PAXTON, in his official capacity as Texas Attorney General,

FL ED

17Py3, PH3:6

WESTERN

mSIj
LI:!!CT

COURT OF TEXAS

fl

Plaintiffs,

V.
TRAVIS COUNTY, TEXAS; SALLY
HERNANDEZ, in her official capacity as Sheriff of Travis County; CITY OF
AUSTIN, TEXAS; ORA HOUSTON, DELIA GARZA, SABINO RENTERIA, GREGORIO CASAR, ANN KITCHEN, JIMMY FLANNIGAN, LESLIE POOL, ELLEN TROXCLAIR, KATHIE TOVO,
and ALISON ALTER, all in their official capacities as City Council Members of the City of Austin; STEVE ADLER, in his official capacity as Mayor of the City of Austin; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso
County; CITY OF EL CENIZO, TEXAS; RAUL L. REYES, in his official capacity as Mayor of the City El Cenizo; TOM SCHMERBER, in his official capacity as Sheriff of Maverick County; MARIO A. HERNANDEZ, in his official capacity as Constable Pct. 3-1 of Maverick County; the TEXAS ORGANIZING PROJECT EDUCATION FUND; the MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND; and the LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

Civ. Action No. 1:17-cv-425-SS
FIRST AMENDED COMPLAINT FOR
DECLARATORY JUDGMENT

1

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 2 of 60
Texas and Ken Paxton, Attorney General of the State of Texas (collectively referred to hereinafter as "Texas"), by and through the Attorney General, and for its First Amended Complaint against the Defendants, states as follows:
INTRODUCTION 1. This case is about the rule of law. The Texas Legislature and Governor, elected by the People of Texas, exercised their constitutional authority to enact a
state-wide lawSenate Bill 4 ("SB 4")to codify a longstanding practice of Texas law
enforcement to cooperate with federal immigration officials in the application of immigration law.
2. According to Texas Department of Public Safety Statistics, between June 1, 2011, and April 30, 2017, over 220,000 criminal aliens have been booked into Texas jails. The 586,000 criminal offenses charged against these aliens in Texas during their lifetimes include 1,196 homicides, 6,274 sexual assaults, and 16,996 burglaries. The ongoing threat to public safety, deriving from the failure of localities to cooperate with federal immigration policies, was significant to the passage of SB
4.
3. Prior to and since the enactment of SB 4, a few vocal municipalities and
local officials decided that they have, or should have, authority superior to the Texas's
Legislature and executive, and should be granted unfettered discretion as to whether they will cooperate with federal immigration officials. Accordingly, they publicly declared their intentions to contest and/or violate SB 4, regardless of the threat to public safety.
4. The federal government recognizes that cooperation by Texas "is
necessary to preserve the Federal Government's ability to enforce the immigration laws." Texas possesses an independent, sovereign responsibility to protect the
1 See, e.g., Br. of United States as Amicus Curiae in Support of Neither Party at 1-2. Massachusetts v. Lunn, No. SJC-12276, 2017 WL 1240651, at *1_2 (Mass. 2017).
2

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 3 of 60
health, welfare, and safety of its residents. Texas, cognizant of this duty, enacted SB 4 to affirm its policy of cooperation with federal immigration authorities.
5. Prior to SB 4, many, but not all, Texas law enforcement agencies worked cooperatively with federal immigration authorities on a regular basis. Often, this meant officers detaining an individual pursuant to a request from Immigration and Customs Enforcement ("ICE") so that those who flout immigration law cannot slip through the cracks of the justice system.
6. Among other things, SB 4 requires local law enforcement agencies to cooperate with federal immigration authorities; prohibits them from preventing officers from inquiring into someone's immigration status; requires them to comply with ICE detainers; and requires early release to federal authorities for incarcerated persons subject to ICE detainers.
7. With the passage of SB 4, Texas, pursuant to the Texas Constitution, and the powers reserved to it under the Tenth Amendment of the United States Constitution, took measures to ensure cooperation with federal immigration officials as they enforce immigration law.
8. Despite the cooperation between many Texas law enforcement agencies and ICE, Defendants desire to maintain their policies and practices of noncooperation under SB 4.
9. Travis County, Texas and its Sheriff, Sally Hernandez, have been publicly hostile to cooperation with federal immigration enforcement. Both in policy and practice, and through various public statements, Travis County, Texas has openly rejected even routine cooperation with federal immigration officials.
10. The City of Austin, Texas, its City Council, and executives with discretionary authority provided by the Texas Local Government Code oppose cooperation with federal immigration enforcement. Both in policy and practice, and through various public statements, the City of Austin, Texas, the city council, the
3

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 4 of 60
mayor, and the city manager are openly hostile and have failed to render even routine cooperation to federal immigration officials. In fact, the Austin City Council recently approved a resolution to sue Texas over SB 4 so that it may continue operating under policies and practices that violate SB 42 In open session, debating the City of Austin's resolution to contest SB 4, the Defendant Adler made clear his intention to flout SB 4, stating in part "I and many of us up here, I would anticipate, will endorse policies contrary to this law [SB 4], it would be good to have a court say we can't be removed from
office."
11. The City of El Cenizo, Texas and its Mayor, Raul L. Reyes, have openly and deliberately refused to cooperate with federal immigration officials since at least 1999. They continue to do so today and refuse to change their policies and practices
that violate SB 4. Tellingly, El Cenizo and Mayor Reyes sued Texas, claiming that SB
4 is unconstitutional. 12. The Sheriff of Maverick County, Texas, Tom Schmerber, and one of its
constables, Mario A. Hernandez, also maintain policies and practices that refuse to comply with federal immigration officials and publicly declared that they will continue those practices under SB 4. As a result, they sued Texas, claiming that SB
4 is unconstitutional and unenforceable. 13. El Paso County and its Sheriff, Richard Wiles, maintain policies and
practices that refuse to comply with federal immigration officials and will continue
those policies and practices under SB 4. Accordingly, they sued Texas and the Attorney General, among others, over the constitutionality of SB 4.
14. The Mexican American Legal Defense and Education Fund ("MALDEF") is publicly hostile to cooperation with federal immigration enforcement, and, through
2 Plaintiffs note that despite the City of Austin's recent resolution to sue Texas over SB 4, it hypocritically filed a motion to dismiss this lawsuit claiming there is no actual case or controversy.

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various public statements, indicated it will sue Texas over the constitutionality of SB
4.
15. League of United Latin American Citizens ("LULAC") is publicly hostile to cooperation with federal immigration enforcement and sued Texas over the constitutionality of SB 4.
16. The Texas Organizing Project Education Fund sued Texas and the Attorney General, among others, over the constitutionality of SB 4.
17. Defendants maintain policies and practices that violate SB 4 and they have no intention to change those policies to comply with SB 4.
18. This action is premised on the United States Constitution concerning rights reserved to Texas under the Tenth Amendment, the power of the United States to "establish an uniform Rule of Naturalization," Art. I, § 8, ci. 4, the related laws enacted by the United States pursuant to that authority, Texas's sovereign rights pursuant to its own constitution, the right to be secure from unlawful searches and seizures under the Fourth Amendment, and equal protection of law and due process of law under the Fourteenth Amendment. Further, this declaratory judgment action is premised upon First Amendment challenges to SB 4 alleged by some Defendants.
19. Defendants flout the newly enacted mandate of SB 4 and have sued or threatened to sue Texas and its officials over the constitutionality of SB 4.
20. Each and every act of Defendants, past and ongoing, aiieged herein was and is committed by Defendants, each and every one of them, under the coior of Texas law and authority.
JURISDICTION AND VENUE 21. This action raises federal questions under the United States Constitution, particularly Article I and the First, Fourth, Ninth, Tenth, and Fourteenth Amendments, as well as 42 U.S.C. § 1983. The Court has the authority to provide Texas with declaratory relief. See Sherwin-Williams Co. v. Holmes Cty.,
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343 F.3d 383, 388 (5th Cir. 2003); St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 591 (5th Cir. 1994); Travelers Ins. Co. v. La. Farm Bureau Fed'n, Inc., 996 F.2d 774, 776-77 (5th Cir. 1993). Consistent with the purposes of the Declaratory Judgment Act, Texas
brings this action "to avoid a multiplicity of suits in various forums . . . so that the one pertinent issue . . . [can] be resolved consistently in one, rather than multiple, forums." Travelers, 996 F.2d at 777.
22. The Court has jurisdiction over these claims pursuant to 28 U.S.C. § 1331 and 1343.
23. The Court has authority to award the requested declaratory relief pursuant to 28 U.S.C. § 220 1-02.
24. Venue lies in this district pursuant to 28 U.S.C. § 1391 because certain Defendants reside in this district and/or all of the acts described in this Complaint occurred in this district.
PLAINTIFFS 25. Plaintiff Texas is a free and independent sovereign, subject only to the Constitution of the United States. Tex. Const. art. I, § 1. 26. The Legislature, under its general police power, may enact such legislation not forbidden by the United States or Texas constitutions to reasonably regulate the rights and duties of all persons and corporations within its jurisdiction which are necessary for the common good and welfare of its citizenship. Texas v.
Smith, 47 S.W.2d 642, 644 (Tex. Civ. App.Waco 1932, no writ).
27. Cities and counties are subordinate to the Texas Constitution and general laws enacted by the Legislature.
28. The Texas Constitution vests the Legislature with the power to create counties for the convenience of the people. Tex. Const. art. 9, § 1.
29. Qualified voters of a city of more than five thousand inhabitants may engage in home-rule, "subject to such limitations as may be prescribed by the

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Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." Tex. Const. art. 11, § 5.
30. Texas has the sovereign authority and responsibility to protect the health, safety, and welfare of its residents. See, e.g., Texas v. Richards, 301 S.W.2d 597, 602 (Tex. 1957) ("As a general rule the [police] power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience. .. ."); Lombardo v. City of Dali., 73 S.W.2d 475, 479 (Tex. 1934) ("[T]he police power of a state embraces regulations designed to promote the public health, the public morals, or the public safety.").
31. To that end, Texas exercises its police power through state and local law enforcement agencies and cooperates with federal authorities in the enforcement of
immigration law. 32. Texas possesses the sovereign authority to pass civil and criminal laws
that bind the actions and responsibilities of law enforcement agencies throughout Texas, as it has done through SB 4, among other laws.
33. Plaintiff Attorney General Ken Paxton, in his official capacity, is the duly elected Attorney General of Texas and is responsible for enforcement of SB 4.
DEFENDANTS 34. Defendant Travis County, Texas is, at all times relevant to this Complaint, a county located in Texas. 35. Defendant Travis County has a policy and practice of noncooperation with federal immigration policies and ICE detainers. On information and belief, Defendant Travis County intends to maintain those policies and practices under SB
4.
36. Defendant Sally Hernandez is, at all times relevant to this Complaint, the Sheriff of Travis County.
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37. Defendant Sally Hernandez is the final policymaker for actions of the Travis County's Sheriffs Office.
38. Defendant Sally Hernandez is responsible for the enactment and enforcement of the Travis County's Sheriffs Office's policies and practices, including those governing compliance with Texas law and federal immigration detainers.
39. All changes in Travis County's Sheriffs Office's policy or practice are made only with the prior approval of Defendant Sally Hernandez.
40. Defendant Sally Hernandez has a policy and practice of noncooperation with federal immigration policies and ICE detainers. On information and belief, Defendant Sally Hernandez intends to maintain those policies and practices under
41. Defendant Sally Hernandez is sued in her official capacity. 42. Defendant City of Austin, Texas is a home rule municipality, headquartered in Travis County, Texas, that openly refuses to comply with Texas law. 43. Defendant City of Austin has a policy and practice of noncooperation with federal immigration law and ICE detainers. On information and belief, Defendant City of Austin intends to maintain those policies and practices under SB
44. Defendants Ora Houston, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Jimmy Flannigan, Leslie Pool, Ellen Troxclair, Kathie Tovo, and Alison Alter ("City Council Defendants") are, at all times relevant to this Complaint, city council members of the City of Austin, Texas.
45. The City Council Defendants are the final policymakers for actions of the City of Austin, Texas.

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46. The City Council Defendants are responsible for the enactment and enforcement of the City of Austin's policies and practices, including those governing compliance with Texas law and federal immigration detainers.
47. All changes in the City of Austin's policies or practices are made only with the prior approval of the City Council Defendants.
48. The City Council Defendants have a policy and practice of noncooperation with federal immigration law and ICE detainers. On information and belief, the City Council Defendants intend to maintain those policies and practices under SB 4.
49. On May 18, 2017, the City Council Defendants voted to sue Texas over the constitutionality of SB 4 so that they can maintain their unlawful police and practice of noncooperation with federal immigration officials.
50. The City Council Defendants are sued in their official capacities. 51. Defendant Steve Adler is, at all times relevant to this Complaint, the Mayor of the City of Austin, Texas. 52. Defendant Adler is the chief executive officer of the City of Austin,
Texas.
53. Defendant Adler ensures that the laws and ordinances of the municipality are properly carried out. He also performs duties and exercises the powers prescribed by the City Council Defendants.
54. Defendant Adler inspects the conduct of each subordinate municipal officer and causes any negligence, carelessness, or other violation of duty to be prosecuted and punished.
55. Defendant Adler gives to the governing body any information, and
recommends to the governing body any measure, that relates to improving the
finances, police, health, security, cleanliness, comfort, ornament, or good government of the municipality.

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 10 of 60
56. To preserve the peace and good order in the municipality, Defendant Adler may order the arrest of a person who violates Texas law or a municipal ordinance.
57. Defendant Adler is responsible for enactment and enforcement of City of Austin's policies and practices, including those governing compliance with Texas law and federal immigration detainers.
58. All changes in City of Austin's policy or practice are made only with the prior approval of Defendant Adler.
59. Defendant Adler declared publicly on multiple occasions that he will not
abide by SB 4 and will do everything in his power to ensure the City of Austin does not follow the law.
60. Defendant Adler has a policy and practice of noncooperation with federal immigration law and ICE detainers. Defendant Adler intends to maintain those policies and practices under SB 4
61. Defendant Adler is sued in his official capacity. 62. Defendant Elaine Hart is, at all times relevant to this Complaint, the interim City Manager of the City of Austin, Texas. 63. Defendant Hart administers the municipal business and the governing
body of the municipality ensures that the administration is efficient. 64. The City Council Defendants may delegate to Defendant Hart any
additional powers or duties the City Council Defendants consider proper for the efficient administration of municipal affairs.
65. Defendant Hart is responsible for enforcement of City of Austin's policies and practices, including those governing compliance with Texas law and federal immigration detainers.
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66. Defendant Hart maintains a policy and practice of noncooperation with federal immigration law and ICE detainers. On information and belief, Defendant Hart intends to maintain those policies and practices under SB 4.
67. The City Council Defendants voted to direct Defendant Hart to "pursue litigation against" Texas "to provide relief to the City of Austin and the people of Texas from Senate Bill 4."
68. The City Council Defendants directed Defendant Hart to "explore, identify, and allocate the necessary resources, financial or otherwise, to prepare and pursue effective litigation and defense."
69. The City Council Defendants directed Defendant Hart "to explore coordination with other municipalities and entities engaging in similar litigation."
70. Defendant Hart is sued in her official capacity. 71. Defendant El Paso County, Texas is, at all times relevant to this Complaint, a county located in Texas. 72. Defendant El Paso County has a policy and practice of noncooperation with federal immigration law and ICE detainers. On information and belief, Defendant El Paso County intends to maintain those policies and practices under SB
73. After Plaintiffs filed this lawsuit, Defendant El Paso County sued Texas over the constitutionality of SB 4 and raised the same causes of action pleaded herein. See El Paso Cty., et al. v. Texas, et al., No. 5:17-cv-459-OLG (W.D. Tex., San Antonio
Division).
74. Defendant Richard Wiles is, at all times relevant to this Complaint, the Sheriff of El Paso County.
75. Defendant Wiles is the final policymaker for actions of the El Paso County Sheriffs Office.
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76. Defendant Wiles is responsible for the enactment and enforcement of the El Paso County's Sheriffs Office's policies and practices, including those governing compliance with Texas law and federal immigration detainers.
77. All changes in El Paso County's Sheriffs Office's policy or practice are made only with the prior approval of Defendant Wiles.
78. Defendant Wiles has a policy and practice of noncooperation with federal immigration law and ICE detainers. On information and belief, Defendant Wiles intends to maintain those policies and practices under SB 4.
79. After Plaintiffs filed this lawsuit, Defendant Wiles sued Texas over the constitutionality of SB 4 and raised the same causes of action pleaded herein. See El Paso Cty., No. 5:17-cv-459-OLG (W.D. Tex., San Antonio Division).
80. Defendant Wiles is sued in his official capacity. 81. Defendant City of El Cenizo, Texas is a municipal corporation organized and headquartered in Webb County. Defendant City of El Cenizo openly refuses to cooperate with SB 4. 82. Defendant City of El Cenizo has a policy and practice of noncooperation with federal immigration law and ICE detainers. Defendant City of El Cenizo intends to maintain those policies and practices under SB 4. 83. After Plaintiffs filed this lawsuit, Defendant City of El Cenizo sued Texas over the constitutionality of SB 4 and raised the same causes of action pleaded herein. See City of El Cenizo, et al. v. Texas, et al., No. 5:17-cv-404-OLG (W.D. Tex., San Antonio Division). 84. Defendant Raul L. Reyes is, at all times relevant to this Complaint, the Mayor of the City of El Cenizo, Texas. 85. Defendant Reyes is the chief executive officer of the City of El Cenizo, Texas.
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86. Defendant Reyes ensures that the laws and ordinances of the municipality are properly carried out. He also performs duties and exercises the powers prescribed by the Defendant City of El Cenizo.
87. Defendant Reyes inspects the conduct of each subordinate municipal officer and causes any negligence, carelessness, or other violation of duty to be prosecuted and punished.
88. Defendant Reyes gives to the governing body any information, and
recommends to the governing body any measure, that relates to improving the
finances, police, health, security, cleanliness, comfort, ornament, or good government of the municipality.
89. To preserve the peace and good order in the municipality, Defendant Reyes may order the arrest of a person who violates Texas law or a municipal ordinance.
90. Defendant Reyes is responsible for enactment and enforcement of Defendant City of El Cenizo's policies and practices, including those governing compliance with Texas law and federal immigration detainers.
91. All changes in Defendant City of El Cenizo's policy or practice are made only with the prior approval of Defendant Reyes.
92. Defendant Reyes declared publicly on multiple occasions that he will not
abide by SB 4 and will do everything in his power to ensure the City of El Cenizo does not follow the law.
93. Defendant Reyes has a policy and practice of noncooperation with federal immigration law and ICE detainers. Defendant Reyes intends to maintain those policies and practices under SB 4.
94. After Plaintiffs filed this lawsuit, Defendant Reyes sued Texas over the constitutionality of SB 4 and raised the same causes of action pleaded herein. See City of El Cenizo, No. 5:17-cv-404-OLG (W.D. Tex., San Antonio Division).
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95. Defendant Reyes is sued in his official capacity. 96. Defendant Maverick County, Texas is, at all times relevant to this Complaint, a county located in Texas that openly refuses to enforce or otherwise comply with Texas law. 97. Defendant Maverick County has a policy and practice of noncooperation with federal immigration law and ICE detainers. Defendant Maverick County intends to maintain those policies and practices under SB 4. 98. Defendant Maverick County voted to sue Texas over the constitutionality of SB 4 and is listed in the caption of the lawsuit filed by City of El Cenizo. See City of El Cenizo, No. 5:17-cv-404-OLG (W.D. Tex., San Antonio Division). 99. Defendant Tom Schmerber is, at all times relevant to this Complaint, the Sheriff of Maverick County. 100. Defendant Schmerber is the final policymaker for actions of the Maverick County's Sheriffs Office. 101. Defendant Schmerber is responsible for the enactment and enforcement of the Maverick County's Sheriffs Office's policies and practices, including those governing compliance with Texas law and federal immigration detainers. 102. All changes in Maverick County's Sheriffs Office's policy or practice are made only with the prior approval of Defendant Schmerber. 103. Defendant Schmerber has a policy and practice of noncooperation with federal immigration law and ICE detainers. Defendant Schmerber intends to maintain those policies and practices under SB 4. 104. After Plaintiffs filed this lawsuit, Defendant Schmerber sued Texas over the constitutionality of SB 4 and raised the same causes of action pleaded herein. See City of El Cenizo, No. 5:17-cv-404-OLG (W.D. Tex., San Antonio Division). 105. Defendant Schmerber is sued in his official capacity.
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106. Defendant Constable Mario A. Hernandez is, at all times relevant to this
Complaint, a Constable of Maverick County, Texas. 107. Defendant Mario Hernandez is charged with statutory authority to
engage in certain law enforcement duties including service of process and warrants. 108. Defendant Mario I-Iernandez has a policy and practice of noncooperation
with federal immigration law and ICE detainers. On information and belief, Defendant Mario Hernandez intends to maintain those policies and practices under SB4.
109. After Plaintiffs filed this lawsuit, Defendant Mario Hernandez sued Texas over the constitutionality of SB 4 and raised the same causes of action pleaded herein. See City of El Cenizo, No. 5:17-cv-404-OLG (W.D. Tex., San Antonio Division).
110. Defendant Mario Hernandez is sued in his official capacity. 111. Defendant the Texas Organizing Project Education Fund (TOPEF) is self-described as an education organization with a focus on working class neighborhoods in Dallas, Houston, and San Antonio. TOPEF claims to improve the lives of low-income and working class Texas families through education, civil engagement, and community organizing. TOPEF is incorporated in Texas. 112. After Plaintiffs filed this lawsuit, Defendant TOPEF sued Texas over the constitutionality of SB 4 and raised the same causes of action pleaded herein. See El Paso Cty., No. 5:17-cv-459-OLG (W.D. Tex., San Antonio Division). 113. Defendant Mexican American Legal Defense and Education Fund
("MALDEF") is a nonprofit that has a regional office in Texas. 1\/IALDEF describes itself as the nation's leading Latino legal civil rights organization. MALDEF asserts that it promotes social change through advocacy, communications, community
education, and litigation in the areas of education, employment, immigrant rights, and political access.
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114. Defendant League of Latin American Citizens (LULAC) is a nonprofit that has chapters throughout Texas and members in at least Austin, San Antonio, Waco, Midland, Pecos, Alpine, Del Rio, and El Paso. LULAC describes itself as representing Latino and other minority interests in all regions of the State. LULAC
asserts that its members could and will be impacted severely both as individual
residents in Counties deemed not in compliance with SB 4 and as members of law enforcement.
115. After Plaintiffs filed this lawsuit, Defendant LULAC sued Texas over the constitutionality of SB 4 and raised the same causes of action pleaded herein. See City of El Cenizo, No. 5:17-cv-404-OLG (W.D. Tex., San Antonio Division).
FACTUAL BACKGROUND
The Cooperative Nature of Immigration Law
116. The United States Constitution grants the federal government authority over immigration law and policy.
117. Congress specifies categories of aliens who may not be admitted to the United States. See 8 U.S.C. § 1182.
118. Federal law prohibits unlawful entry and unlawful reentry into the country. Id. § 1325, 1326.
119. Once here, aliens must register with the federal government and carry proof of status on their person. Id. § 1301-1306. Failure to do so is a federal misdemeanor. Id. § 1304(e), 1306(a).
120. Federal immigration law also authorizes Texas to deny noncitizens a range of public benefits, id. § 1622, and it imposes sanctions on employers who hire unauthorized workers, id. § 1324a.
121. Congress specifies which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at
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the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Id. § 1227.
122. Components of the U.S. Department of Homeland Security play a major role in enforcing immigration laws.
123. ICE conducts criminal investigations involving the enforcement of immigration-related statutes.
124. ICE also operates the Law Enforcement Support Center, which provides immigration status information to federal, state, and local officials.
125. ICE officers identify, apprehend, and remove illegal aliens from the United States.
126. ICE officers have the authority to arrest any alien pursuant to a warrant or if they have "reason to believe" the alien is in the United States without permission and is "likely to escape before a warrant can be obtained." 8 U.S.C. § 1357(a)(2).
127. Any authorized ICE officer may issue a Form 1-247, Immigration DetainerNotice of Action, to any other federal, state, or local law enforcement agency (herein, "ICE detainer"). 8 C.F.R. § 287.7(a).
128. ICE detainers are supported by probable cause. 129. An ICE detainer advises other law enforcement agencies that ICE seeks the custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. Id. 130. An ICE detainer is a request that such agency advise ICE prior to releasing the alien, so that ICE may arrange to assume custody. Id. 131. An ICE detainer also commonly asks the local law enforcement agency to hold the person for up to 48 hours in order to assume custody. Id. § 287.7(d). 132. As of April 2, 2017, the ICE detainer policy requires "[a]ll immigration officers must establish probable cause to believe that the subject is an alien who is
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removable from the United States before issuing a detainer with a federal, state, local, or tribal [law enforcement agency]."3
133. The new ICE policy requires that all ICE detainers be accompanied by one of two types of Federal immigration warrants, which is signed by an authorized
ICE immigration officer. Id. 134. Congress authorized Federal immigration officials to "arrest[] and
detainU" an alien while awaiting a removal decision pursuant to "a warrant issued by the Attorney General." 8 U.S.C. § 1226(a).
135. Immigration law welcomes the cooperation of Texas law enforcement with requests like ICE detainers.
136. The United States Attorney General can enter into a "written agreement" with Texas or any political subdivision of Texas, which deputizes state or local law enforcement officers as immigration officers. Id. § 1357(g)(1).
137. In these instances, Texas state and local officers are "considered to be acting under color of Federal authority." Id. § 1357(g)(8).
138. Even absent a written agreement, Texas and local law enforcement officers may become deputized to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." Id. § 1357(g)(1O).
139. "State and local law enforcement officials are authorized to arrest and detain" an individual who is "an alien illegally present in the United States" and "has been previously convicted of a felony in the United States and deported or left the United States after such conviction." 8 U.S.C. § 1252c(a).
ICE Policy 10074.2, Issuance of Immigration Detainers by ICE Immigration Officers ¶ 2.4 (last visited May 7, 2017), https://www.ice.gov/sites/default/files/documents/Document/201 7/10074-
2.pdf.

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Texas's Practice of Cooperating with Federal Immigration Authorities
140. For some time now, law enforcement agencies across Texas have held persons in custody for up to 48 hours based on ICE detainers, and they do so to cooperate with federal agencies as well as fulfill the requirements of Texas law..
141. Between 2011 and 2017, over 212,000 criminal aliens were booked into Texas jails.
142. Texas places statutory duties on agencies, such as the Texas Department of Public Safety ("DPS"), the Texas Department of Criminal Justice ("TDCJ"), and the Texas Commission on Jail Standards ("TCJS"), as well as subdivisions such as Travis County and the City of Austin, to cooperate with federal immigration officials with respect to persons in their custody.
143. Texas law charges DPS with authority to enforce "laws protecting public safety and provide for the prevention and detection of crime." Tex. Gov't Code
§ 411.002(a). 144. DPS "is composed of the Texas Rangers, the Texas Highway Patrol," and
other administrative divisions. Id. 145. The Texas Rangers have the same powers and duties of sheriffs, except
their authority extends throughout Texas. Id. § 411.022(a). 146. The Texas Highway Patrol has the same powers and authority as the
Texas Rangers, in addition to other powers and duties provided by law. Id. § 411.032. 147. Texas law requires DPS to cooperate with local law enforcement. 148. "The sheriff and constables of each county and chief of police of each
municipality are associate members of the department and are entitled to the rights and privileges granted to them by the department." Id. § 411.009(a).
149. The director of DPS implements coordination among peace officers throughout Texas and may require the assistance of those officers "to aid or assist in the performance of a duty imposed" by Texas law. Id. § 411.009(b).
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150. Law enforcement agencies throughout Texas cooperate together and share responsibility to enforce the law.
151. This nexus of cooperation extends to the federal level as well, especially with respect to the identification of aliens.
152. DPS coordinates with federal and local authorities at international border checkpoints and shares the costs of those efforts with the federal government.
Tex. Gov't Code § 411.0209.
153. In furtherance of this cooperation, DPS has a program for preventing and detecting the unlawful movement or transfer between Texas and an adjacent state, or between Texas and the United Mexican States, of firearms, controlled substances, currency, or smuggling or trafficking of persons. Id. § 411.0208(a).
154. DPS implements this program "in conjunction with federal and local law enforcement agencies." Id. § 411.0208(d).
155. The DPS Border Security Operations Center coordinates Operation BorderStar to collect intelligence and statistical information, which is shared with federal, state, and local law enforcement each week.
156. Because of the responsibilities and duties placed on DPS by Texas law, uniform cooperation with federal immigration officers is of vital importance to Texas.
157. Once individuals are in custody, counties, Rangers, Highway Patrol, and local police can run their fingerprints through DPS systems, which notify federal immigration officers of any potential aliens in custody.
158. DPS's Bureau of Identification and Records collects information of all
persons arrested, id. § 411.042(b)(1), maintains a database of criminal history that allows for entry of records into an FBI database, Id. § 411.042(b)(9), and serves as a
clearinghouse for local law enforcement to check fingerprints against federal databases at FBI and the Department of Homeland Security.
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159. When the accused stand trial and are found guilty, Texas judges must notify federal immigration officers of those who are criminal aliens, as defined by Texas law. Tex. Code Crim. Proc. art. 2.25 ("A judge shall report to the United States Immigration and Naturalization Service a person who has been convicted in the judge's court of a crime or has been placed on deferred adjudication for a felony and is an illegal criminal alien as defined by Section 493.015(a), Government Code.").
160. TCJS monitors the use of county jails for ICE detentions. Tex. Gov't
Code § 511.0101(a)(1)(J). 161. Texas law also requires the prison system to cooperate with immigration
officers.
162. TDCJ must "cooperate with the [U.S.] Immigration and Naturalization Service in implementing an efficient system for the deportation of illegal criminal aliens on completion of the inmates' sentences or release of the inmates on parole or mandatory supervision." Tex. Gov't Code § 493.015(g).
163. As of December 2015, over 9,000 Texas prisoners were under an ICE detainer of some kind, and ICE determined more than 6,000 of them to be unlawfully present.
164. Texas law obligates TDCJ to "identify those inmates who" may be "an illegal criminal alien" in their custody. Id. § 493.015(b).
165. If a person in custody is determined to be an illegal criminal alien, TDCJ "shall promptly notify" INS. Id. § 493.015(d).
166. TDCJ also "shall promptly notify the criminal justice division of the governor's office of any inmate determined by [TDCJ] or by [INS] to be an illegal criminal alien," and the "governor's office shall apply to the federal government for any funds due the state for criminal justice costs incurred with respect" to that person. Id. § 493.015(e).
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167. TDCJ also provides facilities as central locations to "hold inmates who are illegal criminal aliens for the period immediately preceding release on parole or mandatory supervision," and provides "two-way closed circuit communications systems and other technology that will assist the state and the federal government in ensuring the timely and efficient deportation of illegal criminal aliens." Id. § 493.015(g)(1-2).
168. Texas possesses an interest in consistency in law enforcement, as evidenced by the standards and supervision exercised by TCJS.
169. Among other things, TCJS establishes reasonable rules and minimum standards for the construction, maintenance, and operation of county jails, as well as for the custody, care, and treatment of prisoners. Tex. Gov't Code § 511.009(a).
170. TCJS also monitors the use of state and county jails for ICE detentions and calculates the costs of those detentions. Id. § 511.0101(a)(1)(J).
SB 4 Prohibits Local Policies that Refuse to Cooperate
with Enforcement of Immigration Law
171. Notwithstanding Texas's longstanding practice to cooperate with federal immigration authorities, some local law enforcement entities and leaders opposed this practice. This included opposing cooperation with ICE detainers.
172. In order to unify Texas policy, and solidify cooperation with federal immigration law, Senate Bill 4 is Texas law as of May 7, 2017. A true and correct copy of SB 4 is attached to this Complaint as Exhibit 1.
173. SB 4 states that a: local entity or campus police department may not: (1) adopt, enforce, or endorse a policy under which the entity or department prohibits or
materially limits the enforcement of immigration laws; (2) as demonstrated by pattern or practice, prohibit or materially limit the
enforcement of immigration laws; or (3) for an entity that is a law enforcement agency or for a department, as demonstrated by pattern or
practice, intentionally violate Article 2.25 1, Code of Criminal Procedure.
Ex. 1 § 752.053.
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174. SB 4 prohibits local law enforcement agencies from adopting, enforcing,
or endorsing a policy that limits the enforcement of federal immigration laws. 175. Texas does not interpret SB 4 to prohibit or restrict affected
governments and officials from freely speaking against or in any way commenting upon, or communicating about, immigration laws, policies, actions, SB 4, or any related issues or matters.
176. SB 4 also states: a local entity or campus police department may not prohibit or materially limit a person who is a commissioned peace officer described by Article 2.12, Code of Criminal Procedure, a corrections officer, a booking clerk, a magistrate, or a district attorney, criminal district attorney, or other prosecuting attorney and who is employed by or otherwise under the direction or control of the entity or department from doing any of the following:
(1) inquiring into the immigration status of a person under a lawful detention or under arrest;
(2) with respect to information relating to the immigration status, lawful or unlawful, of any person under a lawful detention or under arrest, including information regarding the person's place of birth:
(A) sending the information to or requesting or receiving the information from United States Citizenship and Immigration Services, United States Immigration and Customs Enforcement, or another relevant federal agency;
(B) maintaining the information; or (C) exchanging the information with another local entity or campus police department or a federal or state governmental entity; (3) assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance; or (4) permitting a federal immigration officer to enter and conduct enforcement activities at a jail to enforce federal immigration laws.
Id. § 752.053. 177. SB 4 bans local law enforcement agencies from prohibiting or limiting
their officers or employees from inquiring into a person's immigration status when that person is under lawful detention or arrest.
178. SB 4 bans local law enforcement agencies from prohibiting or limiting their officers or employees from sharing immigration status of a person with federal
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authorities, collecting a person's immigration status, or exchanging that information
with another local law enforcement agency.4 179. SB 4 bans local law enforcement agencies from prohibiting or limiting
their officers or employees from cooperating with federal immigration officers. 180. SB 4 bans local law enforcement agencies from prohibiting or limiting
their officers or employees from permitting federal immigration officers to enter and conduct enforcement activities within their jails.
181. SB 4 permits a peace officer, while investigating an alleged criminal offense, to inquire as to the nationality or immigration status of a victim or witness to the offense only if it is necessary to investigate the offense or to provide the victim or witness with information about federal visas designed to protect individuals providing assistance to law enforcement. Id. art. 6, § 6.01.
182. SB 4 also states that a "local entity, campus police department, or a person employed by or otherwise under the direction or control of the entity or department may not consider race, color, religion, language, or national origin while enforcing immigration laws except to the extent permitted by the United States
Constitution or Texas Constitution." Id. § 752.054. 183. SB 4 prohibits unlawful discrimination based on race, color, religion,
language, or national origin. 184. Any person residing within the jurisdiction of the local law enforcement
agency may file a complaint about that agency with the Attorney General of Texas, who may seek equitable relief in court against that agency to compel compliance with
the law. Id. § 752.055.
"SB 4 is in harmony with 8 U.S.C. § 1373 (2017), which purports to prohibit any restrictions on government entities or officials that would prevent them from communicating with INS regarding citizenship or immigration status, maintaining such information, or sharing such information with other governmental entities.
24

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 25 of 60
185. A local law enforcement agency found in violation of SB 4 is subject to
civil penalties in an amount "(1) not less than $1,000 and not more than $1,500 for the first violation; and (2) not less than $25,000 and not more than $25,500 for each subsequent violation." Id. § 752.056(a)(1-2). Each day a local law enforcement agency violates SB 4 "constitutes a separate violation for the civil penalty under this section."
Id. § 752.056(b). 186. Civil penalties collected under SB 4 are deposited into the victims of
crime fund established under Subchapter B, Chapter 56, Code of Criminal Procedure.
187. SB 4 states that "a person holding an elective or appointive office of a political subdivision of this state does an act that causes the forfeiture of the person's office if the person violates Section 752.053." Id. § 752.0565(a).
188. Under SB 4, elective or appointed officials of a political subdivision may be removed from office if he or she prohibits officers or employees from:
a) inquiring into a person's immigration status if that when that person is
under lawful detention or arrest; b) sharing immigration status of a person with federal authorities, maintain
a person's immigration status, or exchanging that information with another
local law enforcement agency; c) cooperating with federal immigration officers; and d) permitting federal immigration officers to enter and conduct enforcement
activities within their jails.
Id. 189. The Attorney General of Texas is charged with authority to enforce
section 752.0565(a). Id. § 752.0565(b).
190. SB 4 states that each local law enforcement agency: may adopt a written policy requiring the agency to perform community outreach activities to educate the public that a peace officer may not inquire into the immigration status of a victim of or witness to an alleged criminal offense unless . . . the officer determines that the inquiry is necessary to: (1) investigate the offense; or (2) provide the victim or
witness with information about federal visas designed to protect individuals providing assistance to law enforcement.
25

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 26 of 60
Id. § 752.057(a). 191. Any outreach policy adopted under section 752.057 must include
outreach to victims of family violence and sexual assault. Id. § 752.057(b). 192. SB 4 also provides grants to local law enforcement entities to offset costs
related to enforcing immigration laws, or complying with, honoring, or fulfilling immigration detainer requests. Id. § 772.0073(b).
SB 4 Requires Cooperation with ICE Detainers 193. SB 4 states that a law enforcement agency that has custody of a person subject to an
immigration detainer request issued by United States Immigration and Customs Enforcement shall: (1) comply with, honor, and fulfill any request made in the detainer request provided by the federal government; and (2) inform the person that the person is being held pursuant to an immigration detainer request issued by United States Immigration and Customs Enforcement. Id. art. 2.251(a). 194. SB 4 requires law enforcement agencies holding a person subject to an ICE detainer to comply with, honor, and fulfill that request and inform the person in custody that he or she is being held pursuant to an ICE detainer. 195. A law enforcement agency is not required to comply with an ICE detainer if the person in custody proves his or her United States citizenship, or lawful immigration status, through government-issued identification. Id. art. 2.251(b). 196. SB 4 provides grants to local law enforcement entities to offset costs related to enforcing immigration laws, or complying with, honoring, or fulfilling immigration detainer requests. Id. § 772.0073(b). 197. SB 4 authorizes the Attorney General of Texas to defend a local entity in any action in any court if the local entity requests help and if the Attorney General determines that the local entity was attempting to comply in good-faith with an ICE detainer. Id. § 402.0241.
26

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 27 of 60

198. SB 4 provides that it is a Class A misdemeanor for a sheriff chief of police, constable, or person who has primary authority for administering a jail to knowingly fail to comply with an ICE detainer request issued concerning a person in his or her custody, unless the person in custody proves his or her lawful citizenship or immigration status. Id. § 39.07.

SB 4 Requires Early Release of Incarcerated Persons Subject to ICE Detainers to Federal Authorities
199. SB 4 also provides that an incarcerated individual who is subject to an ICE detainer may be transferred from a Texas correctional facility to federal authorities during the last seven (7) days of the individual's sentence.

200. SB 4 states:
In a criminal case described by Subsection (a) [where the judgment requires the defendant to be confined in a correctional facility and the defendant is subject to an immigration detainer request], the judge shall, at the time of pronouncement of a sentence of confinement, issue an order requiring the secure correctional facility in which the defendant is to be confined and all appropriate government officers, including a sheriff, a warden, or members of the Board of Pardons and Paroles, as appropriate, to require the defendant to serve in federal custody the final portion of the defendant 's sentence, not to exceed a period of seven days, following the facility 's or officer 's determination that the change in the place of confinement will facilitate the seamless transfer of the defendant into federal custody. In the absence of an order issued under this subsection, a facility or officer acting under exigent circumstances may perform the transfer after making the determination described by this subsection. This subsection applies only if appropriate officers of the federal government consent to the transfer of the defendant into federal custody under the circumstances described by this subsection.
Id. art. 42.039.

Defendants' Immediate

PInoljiucriyestoanPdlaPinraticfftiscEesnaVcitomlaetentSaBn4d

and Cause a Concrete, Enforcement of SB 4

201. Defendant Travis County has a policy and practice of ignoring ICE

detainer requests and refusing to cooperate with federal immigration officials.

27

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 28 of 60
202. Defendant Travis County, Defendant Sally Hernandez, and other county officials, engage in patterns and practices of ignoring ICE detainer requests and not cooperating with federal officials.
203. On February 1, 2017, well after SB 4 was introduced in the Texas Legislature, Defendant Sally Hernandez issued a revised, written policy concerning Travis County's non-cooperation with federal immigration authorities. Under the policy, Travis County shall not cooperate with federal immigration officials and their lawful activities, except in limited circumstances determined solely by the Travis County and its sheriff.
204. Defendant Sally Hernandez described the County's policy in place when SB 4 was passed in a publicly available video statement: The Travis County Sheriffs Office will not "conduct or initiate any immigration status investigation" into those in custody. The Travis County Sheriffs Office prohibits the use of county resources to communicate with ICE about an "inmate's release date, incarceration status, or court dates, unless ICE presents a judicial warrant or court order." Absent such a warrant or order, ICE will not be allowed to conduct "civil immigration status investigations at the jail or [Travis County Sheriffs Office] ." Further "no [Travis County Sheriff's Office] personnel in the jail, on patrol, or elsewhere may inquire about a person's immigration status."5
205. Travis County Judge Sarah Eckhardt publicly endorsed Travis County's policy and practice:
Place of birth alone is no indication that a person is a threat to public safety under the criminal laws of Texas or is in violation of immigration laws of the U.S. Under both Texas and U.S. Constitutions, jailers and immigration agents do not determine probable cause to detain a person. Only a judge can make that determination. It's called a warrant. I fully
Travis County Sheriffs Office, ICE Policy Video, at http://www.tcsheriff.org/inmate-jail-info/ ice-video (last visited May 6, 2017).
I.J

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 29 of 60
support Sheriff Hernandez requiring a warrant to deprive anyone of his or her liberty under the 4th Amendment of the U.S. Constitution.6 206. As of the original filing of this lawsuit, Defendant Sally Hernandez's and Travis County's policy remained in place, unaffected by SB 4. 207. Defendant Hernandez, acting as the Travis County Sheriff, continues not to cooperate with federal immigration officials and, on information and belief, has no plans to change this policy and practice. 208. Defendant Travis County's failure to cooperate with federal immigration officials is pervasive. According to a report by the U.S. Department of Homeland Security, of 206 detainer requests denied between January 28 and February 3, 2017, Travis County declined 142 requests to hold unauthorized immigrants, or about 69%, which is more than any other local jurisdiction. 209. Defendant City of Austin has a policy and practice of ignoring ICE detainer requests and refusing to comply with federal immigration officials. 210. Defendants City of Austin, Adler, and Hart, the City Council Defendants, and other city officials publicly endorse and engage in patterns and practices of ignoring ICE detainer requests and not cooperating with federal officials. 211. On May 18, 2017, Defendants City of Austin, Adler, Hart, and the City Council Defendants voted to sue Texas over the constitutionality of SB 4. 212. During the City Council Defendants' discussion on whether to file a lawsuit against Texas over SB 4, Defendant Casar stated that the City of Austin, the City Council Defendants, and Defendants Adler and Hart are part of a broad coalition that want to stop SB 4 before it gets implemented. 213. During the City Council Defendants' discussion on whether to file a lawsuit against Texas over SB 4, Defendant Casar also stated that SB 4 will require
6 Casey Claiborne, Travis Co. Commissioners discuss Hernandez ICE policy, FOX 7 (Jan. 24 2017, 06:20 PM), http://www.fox7austin.com/news/local-news/23 1502450-story (last visited May 6,
2017).
29

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 30 of 60
the City of Austin to make a policy change to cooperate with federal immigration law and ICE detainers.
214. During the City Council Defendants' discussion whether to file a lawsuit against Texas over SB 4, Defendant Adler stated that a city should be able to have their culture reflected in the ordinances, rules, and policies they adopt. In other words, Defendant Adler does not believe the City of Austin, a subordinate unit of government to Texas, must comply with Texas law.
215.
216. Defendant City of Austin, the City Council Defendants, and Defendants
Adler and Hart intend to file a pre-enforcement challenge to SB 4 that is nearly identical to this first-filed matter.
217. Defendant Hart participated in Defendant City of Austin's violation of SB 4 by directing the City Law Department to file a baseless motion to dismiss this action just days after the City Council Defendants voted to sue Texas over SB 4.
218. Defendant El Paso County and Defendant Wiles have policies and practices of ignoring ICE detainer requests and refusing to cooperate with federal immigration officials.
219. Defendant El Paso County, Defendant Wiles, and other county officials, engage in patterns and practices of ignoring ICE detainer requests and not cooperating with federal officials.
220. Defendant Wiles said SB 4 was pointless. 221. On May 15, 2017, the commissioners' court of Defendant El Paso County voted to sue Texas over the constitutionality of SB 4. 222. On May 22, 2017, Defendants El Paso County and Wiles sued Plaintiffs over the constitutionality of SB 4. See El Paso Cty., No. 5:17-cv-459-OLG (W.D. Tex., San Antonio Division).
30

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 31 of 60
223. The lawsuit filed by Defendants El Paso County, Wiles, and TOPEF characterizes SB 4 as a cruel and racially animated law.
224. Defendants Maverick County, Schmerber, and Mario Hernandez have policies and practices of ignoring ICE detainer requests and refusing to cooperate with federal immigration officials.
225. Defendants Maverick County, Schmerber, and Mario Hernandez, and other county officials, engage in patterns and practices of ignoring ICE detainer requests and not cooperating with federal officials.
226. On May 8, 2017, Defendants Schmerber and Mario Hernandez sued Plaintiffs over the constitutionality of SB 4. See City of El Cenizo, No. 5:17-cv-404OLG (W.D. Tex., San Antonio Division).
227. On information and belief, the commissioners' court of Defendant Maverick County voted to sue Texas over the constitutionality of SB 4.
228. On May 18, 2017, Defendant Maverick County sued Plaintiffs over the constitutionality of SB 4. See City of El Cenizo, No. 5:17-cv-404-OLG (W.D. Tex., San
Antonio Division). 229. Defendants City of El Cenizo and Reyes have policies and practices of
ignoring ICE detainer requests and refusing to cooperate with federal immigration
officials.
230. Defendants City of El Cenizo and Reyes, and other city officials, engage in patterns and practices of ignoring ICE detainer requests and not cooperating with federal officials.
231. Defendant Reyes alleged that SB 4 is "dangerous and discriminatory" and that it "opens up the door to racial profiling against Hispanics."
232. On May 8, 2017, Defendants City of El Cenizo and Reyes sued Plaintiffs over the constitutionality of SB 4. See City of El Cenizo, No. 5:17-cv-404-OLG (W.D. Tex., San Antonio Division).
31

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 32 of 60
233. In Defendants LULAC's, City of El Cenizo's, Reyes's, Schmerber's, and Mario Hernandez's allegations against Texas and two of its officials, they have
alleged that Texas has no constitutional or sovereign authority to enforce SB 4. Further, they allege that "SB 4 is a severe invasion of Plaintiffs' sovereign rights as local governments to form their own laws and policies"even, apparently, as it
relates to immigration law and policy. 234. Defendants LULAC, City of El Cenizo, Reyes, Schmerber, and Mario
Hernandez have admitted in legal pleadings that they "have in some case directed their employees and officers not to assist the Federal government in enforcing federal
immigration law, with limited exceptions. 235. Defendant MALDEF publicly declared imminent legal action against
Texas regarding the constitutionality of the Texas law described herein.7 236. Defendant LULAC filed suit against Texas regarding the
constitutionality of the Texas law described herein. See City of El Cenizo, No. 5:17cv-404-OLG (W.D. Tex., San Antonio Division).
237. Defendants' deliberate failure to cooperate with federal immigration officials hampers the federal government's ability to exercise its constitutional authority to make removal decisions. Arizona v. United States, 132 S. Ct. 2492, 2499
(2012).
238. Defendants' policies and practices undermine the fundamental principle that foreign countries "must be able to confer with one national sovereign, not the 50
separate States"much less countless local governments. Id. at 2498.
See, e.g., Press Release, MALDEF Statement on Texas SB 4 "Sanctuary Cities" Bill (May 4, 2017), http://www.maldef.org/news/releases/201 7_5_4_MALDEF_Statement_on_TX_SB_4_Sanctuary _CitiesBill/; Mercedes Olivera, Legal fight on SB 4 gears up, Dallas Morning News, May 6, 2017.
32

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 33 of 60
239. All Defendants follow a pattern and practice of failing to cooperate with federal immigration officials, which on information and belief, they intend to continue prior to and after September 1, 2017.
240. All Defendants have either sued Texas and/or its officials over the
constitutionality of SB 4 or resolved to take legal action against Texas alleging that
SB 4 is unconstitutional. ALLEGATIONS OF LAW
241. At all times relevant to this Complaint, each and all of the acts alleged herein are attributed to the Defendants who acted under color of a statute, regulation, custom, or usage of Texas.
242. Defendants are aware that refusing to comply with SB 4is in violation
of Texas law.
243. Defendants are aware that SB 4 is valid under the United States
Constitution. 244. Texas has no adequate or speedy remedy at law to correct or redress
these violations of Texas law. 245. Until SB 4 is declared constitutional, Defendants will continue to pursue
legal action adverse to SB 4 and/or with their unlawful policy or practice. FIRST CAUSE OF ACTION
Fourth Amendment Right to Protection Against Unreasonable Searches and Seizures
246. Texas incorporates by reference as if set forth fully herein paragraphs 1
to 245.
247. The Fourth Amendment, incorporated and made applicable to Texas by the Fourteenth Amendment to the United States Constitution, prohibits unreasonable searches and seizures.
248. To establish a claim for unreasonable seizure, one must show that an arrest is unreasonable.
33

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 34 of 60
249. A warrantless arrest is considered unreasonable if, at the moment of the arrest, there is no probable cause for the peace officer to reasonably believe that an
unlawful act has been or is being committed. 250. Probable cause does not require proof beyond a reasonable doubt, but
only a showing of a fair probability of unlawful activity. 251. The reasonableness of an arrest must also be judged based on what a
reasonable peace officer would do under the circumstances, and does not consider the officer's state of mind.
252. The question is whether a reasonable officer believes that the law was violated based on the facts available to that officer.
253. Defendants assert that SB 4 violates the Fourth Amendment because it requires them to participate in an ICE detainer, which they attest is an unreasonable
seizure. 254. ICE detainers may be issued for civil or criminal immigration law
violations. 255. Whether an ICE detainer is civil or criminal in nature, it must be
supported by probable cause. 256. ICE makes the determination of whether it has probable cause to issue
a detainer and will not issue a detainer without probable cause. Current ICE policy further reflects this probable-cause requirement, as ICE will not issue a detainer without an accompanying Federal immigration warrant signed by an authorized ICE immigration officer.
257. ICE detainers, therefore, are supported by probable cause established by ICE officers under federal law.
258. SB 4's requirement that local law enforcement cooperate with ICE detainers does not violate the Fourth Amendment's prohibition on unreasonable
seizures.
34

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 35 of 60
259. SB 4 does not violate the Fourth Amendment. 260. Texas has no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 261. Texas has no adequate remedy at law. 262. Absent declaratory relief, Texas will continue to be harmed.
SECOND CAUSE OF ACTION
Fourteenth Amendment Right to Equal Protection of Law
263. Texas incorporates by reference as if set forth fully herein paragraphs 1
to 262.
264. The Fourteenth Amendment to the United States Constitution guarantees persons the equal protection of the laws, and prohibits the government from treating persons differently than a similarly situated individual.
265. Laws are not unconstitutional under the Fourteenth Amendment if they result in a racially disproportionate impact.
266. Representatives of Defendants publicly assert that Texas enacted SB 4 with a discriminatory purpose that violates the Fourteenth Amendment.
267. SB 4's requirement that local law enforcement cooperate with federal authorities in the enforcement of immigration laws does not have a discriminatory
purpose.
268. SB 4's requirement that local law enforcement not prevent peace officers from verifying immigration status of a person does not have a discriminatory purpose.
269. Racial discrimination is not a substantial or motivating factor behind SB 4 and Texas law.
270. The historical background of SB 4 does not indicate discriminatory intent.
35

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 36 of 60
271. Texas enacted SB 4 to set a policy of cooperation with federal immigration authorities, not to discriminate against one particular race or group of
people.
272. The enactment of SB 4 did not deviate from the normal procedural sequence of passing laws in Texas.
273. SB 4 does not bear more heavily on persons from one race than another. 274. SB 4 does not promote discrimination in the cooperation with ICE detainers and prohibits, rather than promotes, discrimination by Texas law
enforcement. 275. SB 4 does not violate the Fourteenth Amendment. 276. Texas has no adequate or available administrative remedy, or, in the
alternative, any effort to obtain an administrative remedy would be futile. 277. Texas has no adequate remedy at law. 278. Absent declaratory relief, Texas will continue to be harmed. THIRD CAUSE OF ACTION
Fourteenth Amendment Right to Due Process of Law
279. Texas incorporates by reference as if set forth fully herein paragraphs 1
to 278.
280. The Fourteenth Amendment to the United States Constitution guarantee persons the right to due process of law.
281. Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Fourteenth Amendment.
282. Substantive due process protects individuals from government deprivations of liberty or property.
283. SB 4 does not deny the substantive or procedural due process rights of any person.
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Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 37 of 60
284. The requirements of SB 4 are not vague. SB 4 is plain and understandable, providing adequate notice of what conduct is required and prohibited by it.
285. SB 4 does not deprive the right of any person to access to the courts, the safeguards thereof, and any available redress thereby.
286. SB 4 does not deprive any person of life, liberty, or property without due process.
287. SB 4 does not deprive any person of any fundamental liberty. 288. All matters of immigration enforcement are left to federal immigration officials, not Texas law enforcement. 289. SB 4 does not violate the Fourteenth Amendment. 290. Texas has no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 291. Texas has no adequate remedy at law. 292. Absent declaratory relief, Texas will continue to be harmed.
FOURTH CAUSE OF ACTION
Federal Preemption
293. Texas incorporates by reference as if set forth fully herein paragraphs 1
to 292_.
294. The Supremacy Clause of the United States Constitution provides that
"[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." U.S. Const. art. VI, cl. 2.
295. The Supremacy Clause provides that federal law may expressly or
impliedly preempt Texas or local laws.
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296. Generally, Texas can assert a preemption argument in a claim for injunctive relief under Ex Parte Young, 209 U.s. 123 (1908). See Armstrong v. Exceptional Child Ctr., Inc., 135 5. Ct. 1378, 1383 (2015) ("[I]f an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted.").
297. Section 1373 of Title 8 of the United States Code provides that local
government entities and officials "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual."
298. In the spirit of cooperative federalism, Texas enacted SB 4 in part to effectuate federal immigration law, as expressed in, but not limited to, 8 U.S.C.
§ 1373.
299. SB 4 promotes the objectives of 8 U.S.C. § 1373, and the objectives of federal immigration law more generally, by prohibiting government entities or officials from enacting policies that restrict sharing information regarding immigration status and otherwise cooperating with federal immigration authorities, including the Immigration and Naturalization Service, and imposes enforcement mechanisms to achieve those objectives.
300. 5B4 is in harmony with the U.S. Constitution, federal immigration law, and all other federal laws, including but not limited to 8 U.S.C. § 1373.
301. SB4 does not expressly conflict with the U.S. Constitution, federal immigration law, or any other federal law, including but not limited to 8 U.S.C.
§ 1373.
302. SB4 does not impliedly conflict with, or impose an obstacle to, the U.S. Constitution, federal immigration law, or any other federal law, including but not limitedto8U.S.C. § 1373.
11 I.

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303. Federal regulation of immigration is not so pervasive as to occupy the field and disallow Texas from passing SB 4.
304. SB 4 does not violate the Supremacy Clause. 305. Texas has no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 306. Texas has no adequate remedy at law. 307. Absent declaratory relief, Texas will continue to be harmed.
FIFTH CAUSE OF ACTION
First Amendment
308. Texas incorporates by reference as if set forth fully herein paragraphs 1
to 307.
309. The First Amendment, among other things, prohibits laws "abridging the freedom of speech."
310. The First Amendment's Free Speech Clause, incorporated and made applicable to the states by the Fourteenth Amendment to the United States Constitution, prohibits content and viewpoint discrimination of persons in public
forums. 311. The Free Speech Clause also prohibits compelled speech of private
citizens.
312. The First Amendment does not protect speech by the government or government officials acting in their official capacities.
313. Defendants allege that SB 4 violates the Free Speech Clause by
inhibiting the free speech of those regulated by SB 4. 314. SB 4 does not chill or infringe on speech protected by the First
Amendment.
315. Texas does not interpret SB 4 as regulating any speech that would otherwise be protected against government interference by the First Amendment.
39

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 40 of 60
316. SB 4 does not violate the First Amendment. 317. Defendants are actively engaged in contests to the constitutional validity of SB 4 based, in part, upon the allegation that it violates the First Amendment. 318. Texas has no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 319. Texas has no adequate remedy at law. 320. Absent declaratory relief, Texas will continue to be harmed.
SIXTH CAUSE OF ACTION
Separation of Powers Under the Texas Constitution
321. Texas incorporates by reference as if set forth fully herein paragraphs 1
to 320.
322. Defendants allege that SB 4 violates powers constitutionally reserved to local governments and officials by the Texas Constitution.
323. SB 4 does not conflict with any provision of the Texas Constitution. 324. No provision of the Texas Constitution grants local governments or local officials the discretion to violate or ignore general laws enacted by the legislature.
325. Binding precedent from the Texas Supreme Court establishes that
general laws enacted by the Texas legislature supersede any inconsistent conflicting local ordinances.
326. In the case of larger cities, traditionally granted more power than other localities, the Texas Constitution expressly establishes the supremacy of legislatively
enacted general laws over local ordinances. 327. Texas has no adequate or available administrative remedy, or, in the
alternative, any effort to obtain an administrative remedy would be futile. 328. Texas has no adequate remedy at law. 329. Absent declaratory relief, Texas will continue to be harmed.

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 41 of 60
PRAYER FOR RELIEF WHEREFORE, Texas respectfully requests that this Court enter judgment against Defendants and provide Texas and Attorney General Paxton with the
following relief:
a. Declare that SB 4 is valid under the First, Fourth, and Fourteenth
Amendments to the United States Constitution; SB 4 is not preempted
by federal law; and SB 4 does not violate provisions of the Texas
Constitution; and
b. All other further relief to which Texas and Attorney General Paxton may be entitled.
Respectfully submitted this the 3lth day of May, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER
First ssistant Attorney General
BPANLEY IY STARR De'piify First Assistant Attorney General Texas Bar No. 24046904
brantley.starr@oag.texas.gov MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General DARREN MCCARTY Special Counsel for Civil Litigation DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009
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Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 42 of 60
Austin, Texas 78711-2548 (512) 936-1414 (512) 936-0545 Fax
ATTORNEYS FOR TEXAS
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Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 43 of 60
CERTIFICATE OF SERVICE
I, Brantley D. Starr, hereby certify that on this the 3lth day of May, 2017, a true and correct copy of the foregoing document was transmitted using the GMtEF'
system. A copy of this document will be served on each defendant. Bra y D. Starr
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Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 44 of 60
EXHIBIT 1

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 45 of 60

No.

1

ANACT

2 relating to t:he enforcement by campus police departments and 3 certain local governmental entities of state and federal laws 4 governing immigration and to related duties and liability of 5 certain persons in the crimina justice system; providing a civil 6 penalty; creating a criminal offense.

7

BE IT ENACTED BY THE LEGISLATURE GE THE STATE OF TEXAS:

8 ARTICLE 1. POLICIES OF AND GRANT PROGRAMS FOR LOCAL ENTiTIES AND

9

CAMPUS POLICE DEPARTMENTS

10

SECTION 1.01. Chapter 752, Government Code, is amended by

ii adding Subchapter C to read as follows:

12 SUBCHAPTER c. ENFORCEMENT OF STATE AND FEDERAL IMMIGRATION LAWS BY

13

LOCAL ENTITIES AND CAMPUS POLICE DEPARTMENTS

14

Sec. 752.051. DEFINITIONS. In this subchapter:

lb

(1) "Campus police department" means a law enforcement

16 agency of an institution of higher education.

17

(2) "Immigration laws" means the laws of this state or

18 federal law relating to aliens, immigrants, or immigration,

19 including the federal Immigration and Nationality Act (8 U.S.C.

20 Section 1101 et seq.).

21

(3) "institution of higher education" means:

22

(A) an institution of higher education as defined

23 by Section 61.003, Education Code; or

24

(B) a private or independent institution of

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 46 of 60

S.B. Nc. 4

1 higher education as defined by Section 61.003, Education Code.

2

(4) "Lawful detention" means the detention of an

3 individual by a local entity, state criminal justice agency, or

4

pus police department tar the investigation of a criminal

5 offense. The term excludes a detention if the sole redson for the

6 detention is that the individual:

7
8 offense; or

(A) is a victim of or witness to a criminal

9

(B) is reportina criminal offense.

10

(5) "Local entity" means:

11

(A) the governing body of a municipality, coyy,

12 or special district or authority, subject to Section 752.052;

13

(B) an officer or employee of or a division,

14 department, or other body that is part of a municIpality, county, or

15 special district or authority, including a sheriff, municipal

16 police department, municipal attorney, or county attorney; and

17
18 attorney.

(C) a district attorney or criminal district

19

(6) "Policy" includes a formal, written rule, order,

20 or dinance, or policy and an informal, unwritten policy.

21

Sec. 752.052. APPLICABILITY OF SUBCHAPTER.

(a) This

22 subchapter does not apply to a hospital or hospital district

23 created under Subtitle C or 0, Title 4, Health and Safety Code, a

24 federally qualified health center as defined in Section 31.017,

25 Health and Safety Code, a hospital owned or operated by an

26 institution of higher education, or a hospital district created

27 under a general or special law authorized by Article IX, Texas

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 47 of 60

S,8. No. 4
1 Constitution, to the extent that the hosita1 or hosoital district 2 is providing access to or delivering med1cal or health carc
3 services as required under the following applicable federal or 4 state laws:

5

(1) 42 U.S.C. Section l39Sdd;

6

(2) 42 U.S.C. Section 1396b(v);

7

(3) Subchapter C, Chapter 61, Ucalth and Safety Code;

8

(4) Chapt:er 81, bealth and Safety Code; and

9

(5) Section 311.022, Flealth and Safety Code.

10

(h) Subsection (a) exciudes the application of this

ii subchapter to a commissioned peace officer:

12

(1) employed by a hospital or hospital districjurin

13 the officer's employment; or

14

(2) commissioned by a hospital or hospital district.

15

(c) This subchapter does not apply to a commissioned peace

16 officer employed or contracted by a religious oqanization during

17 the officer's employment with the organization or while the officer

18 is performing the contract.

19

(d) This subchapter does not apply to a school district or

ofLemloed 20 open-enrollment charter school, including a peace

21 or contracted by a district or charter school during the officer's

22 employment with the district or charter school or while the officer

23 is performing the contract. This subchapter does not apply to the

24 release of information contained in educational records of an

25 educationaL agency or institution, except in conformity with the

26 Family Educational Riahts and Privacy Act of 1974 (20 U.S.C.

27 Section 1232

3

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 48 of 60

5.5. No. 4

1

(e) This subchapter does riot apply to the public health

2 department of a local entity.

3

(f) This subchapter does not appl.y to;

4

(1) a community center as defined by Section 571.003,

5 Health and Safety Code; or

6

(2) a local mental health authority as defined by

7 Section 531.002. Health and Safety Code.

8

Sec. 752.053. POLICIES AND ACTIONS REGARDrNG IMMIGRATION

9 ENFORCEMENT. (a) A local entity or campus police department may

10 not:

11

(1) adopt, enforce, or endorse a policy under which

12 the entity or department prohibits or materially limits the

13 enforcement of immigration laws;

14

practichit (2) as demonstrated by pattern or

15 or materially limit the enforcement of immigration laws; or

16

(3) for an entity that is a law enforcement agency or

17 for a department, as demonstrated by pattern or practice,

18 intentionally violate Article 2.251, Code of Criminal Procedure.

19

(b) In compliance with Subsection (a), a local entity or

20 campus police department may not prohibit or materially limit a

21 person who is a commissioned peace officer described by Article

22 2.12, Code of Criminal Procedure, a corrections officer, a book

23 clerk, a magistrate, or a district attorney, criminal district

24 attorney, or other prosecuting attorney and who is employed by or

25 otherwise under the direction or control of the entity or

26 department from doing any of the following;

27

(1) inquiring into the immigration status of a person

ii

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 49 of 60

I under a lawful detention or under arrest;

S.B. No. 4

2

(2) with respect to information relating to the

3 immigration status, lawful or unlawful, of any person under a

4 lawful detention or under arrest, including information regarding

5 the person's place of birth

6

(A) sending the information to or reauesting or

7 receiving the information from United States Citizenship and

8 Immigration Services, United States Immigration and Customs

9 Enforcement, or another relevant federal agency;

10

(1) maintaining the information; or

11

(C) exchanging the information with another

12 local entity or campus police department or a federal or state

13 governmental entity;

14

(3> assisting or cooperating with a federal

15 immigration officer as reasonable or necessary, including

16 providing enforcement assistance; or

17

(4) permitting a federal immigration officer to enter

18 and conduct enforcement activities at a lail to enforce federal

19 immigration laws.

20

(c) Notwithstanding Subsection (b)(3), a local entity or

21 campus police department may prohibit persons who are employed by

22 or otherwise under the direction or control of the entity or

23

artment from assistinaox cooperating with a federal immigration

24 officer if the assistance or cooperation occurs at a place ot

25 worship.

26

Sec. 752.054. DISCRIMINATION PROHIBITED. A local entity,

27 campus police department, or a person employed by or otherwise

5

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 50 of 60

S.B. No. 4 1 under the direction ox control of the entity or deoartment: may not 2 consider race, color, religion, language, or national origin while
3 enforcing immigration laws except to the extent rrnedb the
4 United States Constitution or Texas Conslitut ion.

5

Sec. 752.055. COMPLAINT; EQUITABLE RELIEF.

(a) Anj

6 citizen residing in the jurisdiction of a local entity oranl

7 citizen enrolled at or employed by an institution of higher

8 education may file a complaint with the attorney general if the

9 person asserts facts supporting an allegation that the entity or

10 the institution's campus 2olice department has violated Section

11 352.053. The citizen must include a sworn statement with the

12 complaint stating that to the best of the citizen's knowledge, all

13 of the facts asserted in the complaint are true and correct.

14

(b) if the attorney general determines that a complaint

15 filed under Subsection (a) against a local entity ox campus police

16 department is valid, the attorney qeneral may tile a petition for a 17 writ of mandamus or apply for other appropriate equitable relief in

18 a district court in Travis County or in a county in which the

19 principal office of the entity or department is located to compel 20 the entity or department that is suspected of violating Section 21 752.053 to comply with that section.

22

(c) An appeal of a suit brought under Subsection (b) is

23 governed by the procedures for accelerated appeals in civil cases

24 under the Texas Rules of Appe Hate Procedure. The appellate court

25 shall render its final order or judgment with the least possible

26 delay.

27

Sec. 752.056. CIVIL PENALTY. (a) A local entity or campus

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 51 of 60

S.B. No. 4

pce 1

department that is found by a court of law as having

2 intentionally violated Section 752.053 is subject to a civil

3 penalty in an amount:

4

(1) not less than $1,000 and not more thdn $1,500 for

5 the first violation; and

6

(2) not less than $25,000 and not more than $25,500 for

3 each subseqent violation.

S

(b) Each day of a continuing violation of Section 752.053

9 constitutes a separate violation for the civil penalty under this

10 sectIon.

11

(c) The court that hears an action brought under Section

1.2 752.055 against the local entity or campus police department shall

13 determine the amount of the civil penalty under this section.

14

(d) A civil penalty collected under this section shall be

15 deposited to the credit of the compensation to victims of crime fund

16 established under Subchapter B, Chapter 56, Code of Crimlndl

17 Procedure.

18

(e) Sovereign immunity of this state and governmental

19

nifl' of a county and municipality to suit is waived and

20 abolished to the extent of liability created by this section.

21

Sec. 752.0565. REMOVAL FROM OFFICE. (a) For purposesof

22 Section 66.001, Civi.i Practice and Remedies Code, a person holding

23 an elective or appointive office of a political subdivision of this 24 state does an act that causes the forfeiture of the person's office

25 if the person violates Section 752.053.

26

(b) The attorney general shall file a petition unde.r Sect on ...

27 66.002, Civil Practice and Remedies Code, against a public officer

V1

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 52 of 60

S.B. No. 4 1 to which Subsection (a> applies if presented with evidence, 2 including evidence of a rtatemont by the public officer 3 establishing probable grounds that the public officer engaged in 4 conduct described by Subsection (a>. The court in which the
5 petition is filed shall give precedence to proceedings relating to
6 the petition in the same manner as urovided for an election contest
7 under Section 23.101.

8

Cc) If the person against whom an information is fil edbased

9 on conduct described by Subsection (a) is found guilty as charq

10 the court shall enter judgment removing the person from office.

11

Sec. 752.057. COKMUNITY OUTREACH POLICY. (a) Each law

12 enforcement agency that is subject to the requirements of this

13 subchapter may adopt a written policy requiring the agency to

14

form community outreach activities to educate the public that a

15 peace officer may not inquire into the immigration sttus .. a
16 victim of or witness to an alleged criminal offense unless, as

17 provided by Article 2,13, Code of Criminal Procedure, the officer

18 determines that the inquiry is necessary to:

19

(1) investigate the offense; or

20

(2) provide the victim or witness with information

21 about federal visas designed to protect individuals providing

22 assistance to law enforcement.

23

(b) A _policy adopted under this section must include

24 outreach to victims of:

25

(1) family violence, us that term is de.fined

26 Section 7l.004 Family Code, including those receiving services at

27 family violence centers under Chapter 51, Human Resources Code; and

8

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 53 of 60

S.B. No, 4

1

(2) sexual assault, including these receiving

2 services under a sexual assault program, as those terms arc defined

3 by Section 420.003.

4

SECTION 1.02. Subchapter A, Chapter 772, Government Code,

5 is amended by adding Section 772.0073 to read as follows:

b

Sec. 772.0073. ENFORCEMENT OF IMMIGRATION LAW GRANT

7 PROGRAM. (a) In this section:

8

(1) "Criminal justice division" means the criminal

9 jpstice division established under Section 772.006.

10

(2) "Immigration detainer request" means a federal

11 government request to a local entity to maintain temporary custody

12 of an alien, including a United States Department of Homeland

13 Security Form 1-247 document or a similar or successor form.

14

(3) "Immigration laws" means the laws of this state or

15 federal law relating to aliens, immigrants, or immigration,

1.6 including the federal Immigration and Nationality Act (8 U.S.C.

17 Section 1101 et sea.

18

(4) "Local entity" means a municipality or county.

19

(b) The criminal justice division shall establish and

20 administer a competitive grant program to provide financial

21 assistance to local entities to offset costs related to;

22

(1) enforcing immigration laws; or

23

(2) complying with, honoring, or fulfillinj

24 immigration dotainer requests.

25

(c) The criminal justice division shall establish:

26

(1) eligibility criteria for grant applicants;

27

(2) grant application procedures;

9

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 54 of 60

S.B. No. 4

1

(3) criteria for evaluating grant applicatjons and

2 awarding grants;

3

(4) guidelines related to grant amounts; and

4

(5) procedures for monitoring the use of a grant

5 awarded under this section and ensuring compliance with any

6 conditions of the grant.

7

(d) The criminal justice division may use any revenue

8 available for purposes of this section.

9

ARTICLE 2, DUTIES OF LAW ENFORCEMENT AGENCIES AND JUDGES

10

SECTION 2.01. Chapter 2, Code of Criminal Procedure, is

11 amended by adding Article 2.251 to read as follows:

12

Art. 2.251. DUTIES RELATED TO IMMIGRATION DETAINEE

13 REQUESTS. (a) A aw enforcement aqency that has custody of a

14 person subject to an immigration detainer request issued by United

15 States Immigration and Customs Enforcement shall:

1.

(1) comp]y with, honor, and fulfill any request made

17 in the detainer request provided by the federal government; and

18

(2) inform the person that the person is being hold

19 pursuant to an immigration detainer request issued by United States

20 Immigration and Customs Enforcement.

21

(b) A law enforcement agency is not required to pertorm a

22 duty imposed by Subsection (a) with respect to a person who has

23 ,vided proof that the person is a citizen of the United States or

24 that the person has lawful. immigration status in the United States,

25 such as a Texas driver's license or similar qovernment-issued

26 identi±ication.

27

SECTION 2.02. Chapter 42, Code of Criminal Procedure, is

10

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 55 of 60

1 amended by adding Article 42.039 to read as fo1lows

S.B. No. 4

2

Art. 42.039. COMPLETION OF SENTENCE IN FEDERZ'L CUSTODY.

3 (a) This article applies only to a criminal case in which:

4

(1) the judgment requires the defendant tobe confined

5 in a secure correctional facility; and

6

(2) the defendant is subiect to an irnmiaration

7 detainer request.

8

(b) In a criminal case described by Subsection (a), the

9 judge shall, at the time of pronouncement of a sentence of

1 confinement, issue an order requiring the secure correctional

11 facility in which the defendant is to he confined and alt

12 appropriate government officers, inciudinj a shcr 1ff, a warden, ox

13 members of the Board of Pardons and Paroles, as appropriate, to

finaLon 14 require the defendant to serve in federal custody the

15 of the defendant's sentence, not to exceed a period of seven days,

16 following the facility's or officers determination that the change

17 in the place of confinement will facilitate the seamless transfer

15 of the defendant into federal custody. In the absence of an order

19 issued under this subsection, a facility or officer acting under

20 exigent circumstances may perform the transfer after making the

21 determination described by this subsection. This subsection

22 applies only if appropriate officers of the fede alovernment

23 consent to the transfer of the defendant into federal custody under

24 the circumstances described by this subsection.

25

(c) If the applicable information described by Subsection

26 (a)(2) is not available at the time sentence is pronounced in the

27 case, the judge shall issue the order described by Subsection (b) as

11

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 56 of 60

S.B. Nc. 4
1 soon as the information becomes available. The judaerens
2 jrisdiction for the purpose of issuing an order under this
3 article.

4

(d) For purposes of this article, "secure correctional

5 facil ity" has the meaning assigned by Section 1.07, Penal Code,

6

ARTICLE 3. DEFENSE OF LOCAL ENTITTES BY ATTORNEY GENERAL

7

SECTION 3.01. Subchapter B, Chapter 402, Government Code,

8 is amended by adding Section 402,0241 to read as follows:

9

Sec. 402.0241. DEFENSE OF LOCAL ENTiTIES IN SUITS RELATED

10 TO IMNIGRATION DF.TAINER REQUESTS. (a) In this section, "local

11 entity" has the meaning assigned by Section 752.051.

12

(b) The attorriy general shall defend a local entity in any

13 action in any court if:

14

(1) the executive head or governing body, as

15 appIicabe, of the local entity requests the attorney general's

16 assistance in the defense; and

17

(2) the attorney general determines that the cause of

18 action arises out of a claim involving the local entity's

19 good-faith compliance with an immigration detainer request

20 required by Article 2.251, Code of Criminal Procedure.

21

(c) If the attorney general defends a local entity under

22 Subsection (b), the state is liable for the expenses, costs,

23 judgment, or settlement of the claims arising out of the

24 lresentation. The attorney general may settle or compromise any

25 and all claims described by Subsection (b)(2). The state may not be

26 liable for any expenses, costs, judgments, or settlements of any

27 claims against a local entity not being represented by the attorney

12

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 57 of 60

1 general under Subsection (b)

5.0. No.

2

ARTICLE 4. SURETY BOND

3

SECTION 4.01. Article 17.16, Code of Criminal Procedure, is

4 amended by amending Subsection (a) and adding Subsection (a-i) to

5 read as follows:

6

(a) A surety may before forfeiture relieve the surety of the

7 surety's undertaking by:

B

(1) surrendering the accused into the custody of the

9 sheriff of the county where the prosecution is pending; or

10

(2) delivering to the sheriff of the county in which

ii the prosecution is pending and to the office of the prosecuting

12 attorney an affidavit stating that the accused is incareerared 10:

13

(A) federal custody, subject to Subsection

]4 (a-i);

15

[J (B)

the custody of any state;[-,] or

16

(C) (4] any county of this state.

17

(a-i) For purposes of Subsection (a) (2), the surety may not

16 be relieved of the surety's undertaking if the accused is in federal

19 custody to determine whether the accused is lawfully present in the 20 United States.

21

ARTICLE 5. PROHIBITED CONDUCT BY SHERIFF OR CONSTABLE

22

SECTION 5.01. Section 87.031, Local Government Code, is

23 amended by adding Subsection (c) to read as follows:

24

(c) For purposes of Subsection (a), "a misdemeanor

25 involving official misconduct" includes a misdemeanor under

26 Section 39.07, Penal Code.

27

SECTION 5.02. Chapter 39, Penal Code, is amended by adding

13

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 58 of 60

1 Section 39.07 to read as follows:

5.8. No. 4

2

Sec. 39.07. FAILURE TO COMPLY WITH IMMIGRATION DETAINER

3 REQUEST. (a) A person who is a sheriff, chief of police, or

4 constab]e ox a person who otherwise has primary authority for

5 administering a jail commits an offense if the person:

6

(1) has custo4y of a person subject to an immigration

7 detainer request issued by United States Immigration and Customs 8 Enforcement; and

9
10 request.

(2) knowingly fails to_,pI with the detainer

11

(b) An offense under this section is a Class A misdernecinor.

12

(c) it is an exception to the application of this section

13 that the person who was subject to an immigration detainer request

14 described by Subsection (a)(l) had provided proof that the Lerson
15 isa citizen of the United States or that the person has lawful

16 immigration status in the United States, such as a Texas driver's

17 license or similar government-issued identification.

18

ARTICLE 6. INQUIRY BY PEACE OFFICER REGARDING IMMIGRATiON OR

19

NATIONALITY OF CRIME VICTIM OR WITNESS

20

SECTION 6.01. Article 2.13, Code of Criminal Procedure, is

21 amended by adding Subsections (d) and (e) to read as follows:

22

(d) Subject to Subsection (e), in the course of

23 investigating an alleged criminal offense, a peace officer may

24 inquire as to the nationality or immigration status of a victim of

25 or witness to the offense only if the officer determines that the

26 inquiry is necessary to:

27

(1) investigate the offense; or

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 59 of 60

S.B. No. 4

1

(2) provide the victim or witness with information

2 about federal visas designed to protect individuals pioviding

3 assistance to law enforcement.

4

(e) Subsection (d) does not prevent a peace officer from:

5

(1) conducting a separate investigation of any other

6 alleged criminal offense; or

7

(2> inquiring as to the nationality or immigration

8 status of a victim of or witness to a criminal offense if the

9 officer has probable cause to believe that the victim or witness has

10

gaged in specific conduct constituting a separate criminal

11 offense.

12

ARTiCLE 7. SEVERABILITY AND EFFECTIVE DATE

13

SECTION 7.01. It is the intent of the legislature that every

14 provision, section, subsection, sentence, clause, phrase, or word

15 in this Act, and every application of the provisions in this Act to

16 each person or entity, are severable from each other. If any

17 application of any provision in this Act to any person, group of

18 persons, or circumstances is found by a court to be invalid tar any

19 reason, the remaining applications of that provision to all, other

20 persons and circumstances shall be severed and may not, be affected.

21

SECTION 7.02. This Act takes effect immediately if it

22 receives a vote of two-thirds of all the members elected to each

23 house, as provided by Section 39, Article III, Texas Constitution.

24 If this Act does nqt receive the vote necessary for immediate

25 effect, this Act takes effect September 1, 2017.

15

Case 1:17-cv-00425-SS Document 23 Filed 05/31/17 Page 60 of 60

5.13. No. 4

Pr sident f the Senate se

I hereby certify that SAl,

. 4 passed the Senate on

February 8, 2017, by the foUowing vote; Yeas 20, Nays 10; and that

the Senate concurred in House amendments en May 3, 2017, by the

following vote: Yeas 20, Nays Il. _______________________ _____

LJ

Secretary f

nate

I hereby certify that 5.13. No. 4 passed the Eouse, with

amendments, on April 27, 2017, by the following vote: Nays 53, one present not votir

Yeas 94,

Approved:
__-:_

22/7
Date

Cover fl__

FILED 1N THE 0FFCE OF THE SECRETARY OF STATE
i2.O'cLOcK
-MA WD1
Secretary of State

 
 Case 1:17-cv-00425-SS Document 26 Filed 06/02/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS,

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS;

§

SALLY HERNANDEZ, in her official

§

capacity as Sheriff of Travis County,

§

Texas; CITY OF AUSTIN, TEXAS;

§

ORA HOUSTON, DELIA GARZA,

§

SABINO RENTERIA, GREGORIO

§

CASAR, ANN KITCHEN, JIMMY

§

FLANNIGAN, LESLIE POOL,

§

ELLEN TROXCLAIR, KATHIE TOVO, §

And ALISON ALTER, all in their official §

Capacities as City Council Members of

§

The City of Austin, Texas; STEVE

§

ADLER, in his official capacity as

§

Mayor of the City of Austin, Texas;

§

ELAINE HART, in her official capacity §

as Interim City Manager of the City of

§

Austin, Texas; and the MEXICAN

§

AMERICAN LEGAL DEFENSE AND

§

EDUCATION FUND;

§

Defendant.

§

Civil Action No. 1:17-cv-00425-SS

DEFENDANTS TRAVIS COUNTY AND SHERIFF SALLY HERNANDEZ’S MOTION TO DISMISS FIRST AMENDED COMPLAINT
PURSUANT TO F.R.C.P. 12(b)(1) AND REQUEST TO EXPEDITE RULING

TO THE HONORABLE JUDGE SAM SPARKS: COME NOW, Defendants Travis County and Sheriff Sally Hernandez, in her official
capacity as Sheriff of Travis County, (hereafter “Travis County”) and file this Motion to Dismiss First Amended Complaint Pursuant to F.R.C.P. 12(b)(1) and Request to Expedite Ruling.1 Travis County respectfully moves the Court to dismiss Plaintiff State of Texas’ (hereafter “the State”)
1 An “official capacity” lawsuit is in actuality a lawsuit against the unit of government. Will v. Michigan Dept. of State Police. 491 U.S. 58, 71 (1989).

Motion to Dismiss First Amended Complaint Pursuant to F.R.C.P. 12(b)(1)

499386 / 329.201

1

Case 1:17-cv-00425-SS Document 26 Filed 06/02/17 Page 2 of 13
First Amended Complaint [DKT 23] for want of subject matter jurisdiction, and in support thereof, Travis County offers the following:
I. SUMMARY In its First Amended Complaint in 1:17-cv-00425-SS, [DKT 23] (Hereafter 1:17-cv00425-SS shall be referred to as the “Instant Case”) the State prays that the Honorable Court declare as constitutional a statute, S.B. 4, that under Texas law, is already presumed constitutional. Burlington Northern & Santa Fe Ry. Co. v. Poole Chemical Co., 419 F. 3d 355, 361 (5th Cir. 2005) citing Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W. 2d 931, 934 (Tex. 1996). The State, and its allegations, fail to properly invoke the Court’s jurisdiction for two related reasons: (1) the relief as sought by the State is not justiciable; and (2) the State does not have standing to pursue the relief it seeks. Article III of the U.S. Constitution provides federal courts with the jurisdiction to adjudicate “‘concrete legal issues, presented in actual cases, not abstractions.’” Golden v. Zwickler, 394 U.S. 103 108 (1969) quoting United Public Workers of America v Mitchell, 330 U.S. 75, 89 (1947). Justiciability is a broader concept that includes standing. Flast v. Cohen, 392 U.S. 83, 95 (1968). The reach of justiciability is “illustrated by the various grounds upon which questions sought to be adjudicated in the federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when . . . the parties are asking for an advisory opinion.” Id. As for the somewhat narrower concept of standing, the Supreme Court has held, “[t]he doctrine of standing gives meaning to these constitutional limits [“cases” and “controversies” under Art. III] by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) quoting

Motion to Dismiss First Amended Complaint Pursuant to F.R.C.P. 12(b)(1)

499386 / 329.201

2

Case 1:17-cv-00425-SS Document 26 Filed 06/02/17 Page 3 of 13
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Both justiciability and standing are threshold jurisdictional issues. Farmer v. Mabus, 940 F. 2d 921 (5th Cir. 1991). The State has not, and cannot, meet these threshold jurisdictional requirements, and for these reasons, this case should be dismissed pursuant to F.R.C.P. 12(b)(1).
II. TRAVIS COUNTY JOINS IN THE CITY’S MOTION TO DISMISS Travis County joined in the City of Austin’s Motion to Dismiss [DKT 16] and will join in any Motion filed by the City to Dismiss the State’s First Amended Complaint and offers this motion as a supplement to the City’s arguments.
III. STANDARD OF REVIEW Given the frivolous nature of the State’s claim, sua sponte dismissal of the Instant Case is appropriate; the State has not properly invoked the Honorable Court’s jurisdiction and a case may not proceed forward with such a serious jurisdictional defect. Gonzalez v. Thaler, 555 U.S. 134, 141 (2012). Nonetheless, Travis County moves for dismissal of the State’s cause pursuant to F.R.C.P. 12(b)(1), which authorizes dismissal of a case for lack of subject matter jurisdiction. Under 12(b)(1), a claim may not be dismissed unless it appears certain that a plaintiff cannot prove any set of facts in support of its claim, which would entitle it to relief. Benston v. United States, 960 F. 2d 19, 21 (5th Cir. 1992) citing Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). If the State’s allegations are taken as true, it has not properly invoked the Court’s jurisdiction and, pursuant to F.R.C.P. 12(b)(1), this Motion to Dismiss First Amended Complaint must be granted. Id.
IV. REQUEST TO EXPEDITE RULING The State has filed a Motion to Consolidate [DKT 17] in an effort to consolidate into the Instant Case, a case from San Antonio, Civil Action No. 5:17-cv-404-OG; City of El Cenizo,

Motion to Dismiss First Amended Complaint Pursuant to F.R.C.P. 12(b)(1)

499386 / 329.201

3

Case 1:17-cv-00425-SS Document 26 Filed 06/02/17 Page 4 of 13
Texas, et al; In the United States District Court for the Western District of Texas; San Antonio Division. (Hereafter El Cenizo Case). Travis County asserts that the Court can either dismiss the Instant Case sua sponte or grant this Motion to Dismiss First Amended Complaint, as well as those Motions to Dismiss filed by other Defendants, and thereby, moot the State’s Motion to Consolidate. Benton v. U.S. E.P.A., 2013 WL 4483091 *1 (N.D. Tex. 2013) (finding a motion to consolidate moot after deciding that it lacked subject matter jurisdiction over plaintiff’s claim). It appears that the State has filed the Instant Case to take advantage of the “first filed” rule, thereby provoking a “disorderly race to the courthouse” by some of those parties who are interested in S.B. 4. Such action by the State is not supported by the Fifth Circuit nor the Supreme Court. See Amerada Petroleum Corp., v. Marshall, 381 F. 2d 661, 663 (5th Cir. 1967); Cunningham Brothers, Inc. v. Bail, 407 F. 2d 1165 (7th Cir.), cert. denied, 395 U.S. 959 (1969) (holding that it is improper use of the Declaratory Judgment Act to permit an alleged tortfeasor to sue prospective plaintiffs in the forum and at the time of the alleged tortfeasor’s choosing). For these reasons, Travis County requests an expedited ruling on all Motions to Dismiss in this case and such ruling will render as moot the State’s Motion to Consolidate.
V. ARGUMENTS AND AUTHORITIES A. Background and State’s Allegations.
Immediately after Governor Abbott signed S.B. 4, which will become effective on September 1, 2017, the State filed the Instant Case, a Complaint for Declaratory Judgement naming as defendants Travis County and the City of Austin including elected official of those two governmental entities as well as the Mexican American Legal Defense and Education Fund (“MALDEF”), a nonprofit advocacy group. The State’s Amended Complaint [DKT 23] adds parties to the Instant Case who are plaintiffs in other S.B. 4 litigation in San Antonio e.g. the El

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Cenizo case and a related matter brought by El Paso County, 5:17 –CV-00459 OG. In both its Original Complaint [DKT 1] and the First Amended Complaint [DKT 23], the State is requesting that this Court declare the State’s own statute, S.B. 4, constitutional even though S.B. 4 is already presumed to be constitutional under Texas law, see Burlington Northern & Santa Fe Ry. Co. v. Poole Chemical Co., supra.
In an effort to establish a strawman defendant, the State relies on two incorrect assertions: first, the State asserts, falsely, that S.B.4 is “law as of May 7, 2017.” 2 [DKT. 23 pg. 33 paragraph 242] even though it will not become effective until September 1, 2017. Second, the State asserts that statements made by Sheriff Hernandez and Travis County Judge Eckhardt prior to S.B. 4’s passage constitute a current violation of the S.B. 4 because these officials were publicly opposed to the concepts underlying S.B. 4. [DKT 23 pg. 3 paragraph 9 & pg. 28 paragraphs 202-205]. The State further complains that Travis County, generally, does not cooperate with federal immigration detainer requests and that this alleged lack of cooperation hampers the federal government’s authority. [DKT 23 p. 29 paragraphs 207-209].
B. State is not, and will never be, the proper plaintiff; lacks standing. While a federal court would have jurisdiction to determine whether or not S.B. 4
complies with various aspects of the United States Constitution, the State is not, and can never be, the proper plaintiff to request such a determination: not now and not after S.B. 4 goes into effect on September 1. As a plaintiff requesting a judicial affirmation of its own statute, a statute that is already presumed constitutional, the State does not have standing to pursue such a declaration by a federal court.

2 Evidence of the disingenuous nature of the State’s Complaint in the instant case is found in the State’s own Motion to Transfer Venue filed in the El Cenizo Case [Dkt. 14]. In the San Antonio pleading, the State alleges that S.B. 4 will not take effect until September 1, 2017, whereas in the instant case, the State asserts that S.B.4 is already the applicable law and that the Defendants are violating it.

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The jurisdiction of the Federal Court is both “defined and limited by Article III of the Constitution.” Susan B. Anthony List v. Driehaus, 134 S. Ct. at 2341. Further, the Court’s power is restricted to “cases and controversies.” Id. The doctrine of standing gives meaning to which disputes are appropriately resolved through the judicial process. Id. In making a determination on standing for Article III purposes, courts must make two inquiries: (1) is the party who is attempting to invoke federal court jurisdiction a proper party to bring the claim; and (2) what is the claim sought to be adjudicated. Flast v. Cohen, 392 U.S. 83, 99-102. Also see, Warth v. Seldon, 422 U.S. 490 (1975). To determine whether a party has standing, courts must discern, the “nexus between the status asserted by the litigant and the claim he presents to insure that [the litigant] is a proper and appropriate party to invoke federal jurisdiction.” Flast, 392 U.S. at 102.
Regarding part one of the standing inquiry, “the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Id. at 99-100. The Supreme Court continues, “A proper party is demanded so that federal courts will not be asked to decide ‘ill-defined controversies over constitutional issues.’” Id. citing United Public Workers of America v. Mitchell, 330 U.S. at 90. The Supreme Court likens the “proper party” aspect of the standing inquiry to the rule that the federal courts will not entertain friendly lawsuits. Flast v. Cohen, 392 U.S. at 100.
As for part two of the standing inquiry, i.e. the dispute in question, the inquiry is as follows: whether the dispute touches upon “the legal relation of parties having adverse legal interests.” Id.
When applying part one of the standing analysis to the Instant Case, it is evident that the State will never be a proper plaintiff for seeking a declaration on the constitutionality of its own

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statute. This is because the statute is presumed constitutional and any opinion rendered in favor of the State would just be further affirmation of the statute’s constitutionality, and thereby advisory in nature. (See discussion, infra). In seeking this affirmation by the Court, the State is like a party in a friendly lawsuit: seeking a court to “sign off” on something that the State already presumes is true, i.e., the alleged constitutionality of S.B. 4.
As to the second part of the inquiry, i.e. the claim sought to be adjudicated, the constitutionality of S.B. 4 could, appropriately, be called into question, but that cause must be asserted by parties who are challenging the constitutionality of S.B 4, and therefore, have legal interests that are adverse to those of the State. Flast, 392 U.S. at 101-102. Such a party, i.e., a party that has an interest adverse to the State, would be a proper party to challenge the constitutionality of S.B. 4. Id. at 99-101. For these reasons, this Motion to Dismiss the State’s First Amended Complaint should be granted.
C. State is seeking an advisory opinion contrary to Article III. In essence, the State is seeking an advisory opinion from the Honorable Court and such a
request is not justiciable. Id. at 95-96. In quoting a well-known treatise, the Supreme Court asserts that, “‘the oldest and most consistent thread in federal law of justiciability is that federal courts will not give advisory opinions.’” Id. at 96 quoting C. Wright, Federal Courts 34 (1963). Regarding advisory opinions, the Supreme Court cautions, “[w]hen a court is asked to provide an opinion on actions of the legislative branch, without a dispute that could be resolved through the judicial process, such opinion would be contrary to the separation of powers prescribed by the Constitution under Article III, and thereby, such court would lack jurisdiction over the issue.” Id. Here, the State’s First Amended Complaint [DKT 23] in the Instant Case requesting that the Honorable Court declare as constitutional a statute that is already presumed constitutional under

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Texas law, lacks a concrete dispute that can be resolved through the judicial process. Any opinion rendered by the Honorable Court on the validity of the State’s First Amended Complaint would be advisory in nature. For this reason, the case should be dismissed for lack of jurisdiction.
D. The State does not meet the requirements of the Declaratory Judgment Act. In the alternative, and in addition to the preceding arguments, Travis County asserts an
additional reason for dismissal: the State does not meet the requirements of the Declaratory Judgment Act. Despite the hypothetical nature of the State’s claims, it has chosen to sue Travis County pursuant to the Declaratory Judgment Act. [DKT 23 pg. 41]. The Declaratory Judgment Act is limited to “actual controversies within the jurisdiction.” 28 U.S.C. §2201. Also see, Golden v. Zwickler, 394 U.S. at 109- 110. For a court to adjudicate constitutional issues, those issues must be “concrete legal issues, presented in actual cases, not abstractions.” Id. quoting United Public Workers of American v. Mitchell, 330 U.S. at 89. As the Supreme Court holds, “No federal court whether this court or district court, has ‘jurisdiction to pronounce any statute, either of a state or of the United States, void, because it is irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ . . . The express limitation of the Declaratory Judgment Act to cases of actual controversy is an explicit recognition of this principle.” Golden v. Zwickler, 394 U.S. at 110 quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 22, 39 (1885). (Emphasis added). While there may be a forum for the federal government or the State to address immigration enforcement concerns regarding Travis County, a declaratory judgment action in federal court is not the correct vehicle or forum. For this reason, the Instant Case should be dismissed for lack of jurisdiction.

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E. Conclusion
Travis County respectfully requests that the Honorable Court dismiss the State’s First
Amended Complaint [DKT 23] under F.R.C.P. 12(b)(1) because the Court lacks subject matter
jurisdiction for the following reasons: (1) the State is not, and can never be, the proper plaintiff
to seek a declaration affirming the constitutionality of S.B. 4, a statute that is, by state law,
presumed constitutional until a court finds otherwise; (2) the State seeks a declaration by the
Court that the State’s own statute, S.B. 4, complies with the U.S. Constitution, and thereby, the
State seeks an opinion from the Court that is advisory in nature; (3) the State’s First Amended
Complaint fails to comply with the requirements of the Declaratory Judgment Act. For these
reasons, this Motion to Dismiss should be granted.
VI. PRAYER
For these reasons Travis County respectfully prays that the Honorable Court dismiss the
State’s First Amended Complaint pursuant to F.R.C.P. 12(b)(1), expedite a ruling on this matter,
and for all other relief both at law and in equity to which Travis County may be justly entitled.
Respectfully submitted,
DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY P. O. Box 1748 Austin, Texas 78767 (512) 854-9415 (512) 854-4808 FAX
By: /s/ Sherine E. Thomas Sherine E. Thomas Assistant County Attorney State Bar No. 00794734 sherine.thomas@traviscountytx.gov Sharon K. Talley Assistant County Attorney State Bar No. 19627575

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sharon.talley@traviscountytx.gov Anthony J. Nelson Assistant County Attorney State Bar No. 14885800 tony.nelson@traviscountytx.gov Laurie R. Eiserloh Assistant County Attorney State Bar No. 06506270 laurie.eiserloh@traviscountytx.gov Tim Labadie Assistant County Attorney State Bar No. 11784853 tim.labadie@traviscountytx.gov
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of June 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:

Via Electronic Mail Christopher Coppola Michael J. Weills Siegel
City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 ATTORNEYS FOR DEFENDANTS CITY OF AUSTIN AND INDIVIDUAL CITY DEFENDANTS
Via Electronic Mail Nina Perales nperales@maldef.org 110 Broadway, Suite 300 San Antonio, TX 78205 ATTORNEY FOR MALDEF

Via Electronic Mail Ken Paxton Attorney General of Texas Jeffrey C. Mateer First Assistant Attorney General Brantley D. Starr Deputy First Assistant Attorney General Brantley.starr@oas.texas.gov Michael C. Toth Special Counsel to the First Assistant Attorney General Andrew D. Leonie Associate Deputy Attorney General Austin D. Leonie Associate Deputy Attorney General Austin R. Nimocks Associate Deputy Attorney General Darren McCarty Special Counsel for Civil Litigation David J. Hacker Senior Counsel Joel Stonedale Counsel
Office of Special Litigation Attorney General of Texas P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 ATTORNEYS FOR TEXAS

/s/ Sherine E. Thomas

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Case 1:17-cv-00425-SS Document 26 Filed 06/02/17 Page 12 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS,

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS;

§

SALLY HERNANDEZ, in her official

§

capacity as Sheriff of Travis County,

§

Texas; CITY OF AUSTIN, TEXAS;

§

ORA HOUSTON, DELIA GARZA,

§

SABINO RENTERIA, GREGORIO

§

CASAR, ANN KITCHEN, JIMMY

§

FLANNIGAN, LESLIE POOL,

§

ELLEN TROXCLAIR, KATHIE TOVO, §

And ALISON ALTER, all in their official §

Capacities as City Council Members of

§

The City of Austin, Texas; STEVE

§

ADLER, in his official capacity as

§

Mayor of the City of Austin, Texas;

§

ELAINE HART, in her official capacity §

as Interim City Manager of the City of

§

Austin, Texas; and the MEXICAN

§

AMERICAN LEGAL DEFENSE AND

§

EDUCATION FUND;

§

Defendant.

§

Civil Action No. 1:17-cv-00425-SS

PROPOSED ORDER GRANTING DEFENDANTS TRAVIS COUNTY AND SHERIFF SALLY HERNANDEZ’S MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(b)(1)
Before the Court is Travis County Defendants’ Motion to Dismiss First Amended
Complaint Pursuant to F.R.C.P. 12(b) (1). After careful consideration of the Motion, Plaintiff’s
Response, if any, and the pleadings filed by the parties, the Court is of the opinion that the
Motion has merit and should be GRANTED. Accordingly, it is therefore:

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Case 1:17-cv-00425-SS Document 26 Filed 06/02/17 Page 13 of 13 ORDERED, ADJUDGED and DECREED that Plaintiff's Causes of Action against Defendants Travis County, Texas and Travis County Sheriff Sally Hernandez are hereby dismissed.
Honorable Sam Sparks, Presiding Judge

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 Case 1:17-cv-00425-SS Document 27 Filed 06/02/17 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS,

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS, ET AL. §

Defendants.

§

CIVIL ACTION NO. 1:17-CV-425-SS

CITY OF AUSTIN’S AMENDED MOTION TO DISMISS

TO THE HONORABLE SAM SPARKS, UNITED STATES DISTRICT JUDGE:

The City of Austin, Interim City Manager Elaine Hart, City Council Members Ora

Houston, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Jimmy Flannigan, Leslie

Pool, Ellen Troxclair, Kathie Tovo, and Alison Alter, and Mayor Steve Adler (all together, “City”)

file this motion to dismiss Texas’ First Amended Complaint for Declaratory Relief [Dkt. 23]

pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

I.

SUMMARY

1. Texas’ suit seeks to fabricate a case or controversy based upon public statements

by City officials who believe Senate Bill No. 4 (SB 4) is unconstitutional. The suit fails to establish

jurisdiction because Texas has suffered no injury, the law is not in effect, and the State’s complaint

seeks an impermissible advisory opinion. Thus, the City’s motion to dismiss should be granted.

II. FACTS DEFEATING JURISDICTION

A. Texas Filed Suit Before SB 4 Went into Effect

2. The State filed this suit on May 7, 2017. Dkt. 1.

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3. The State filed an amended complaint on May 31, 2017. Dkt. 23. The amended complaint, like the original complaint, seeks only declaratory relief that SB 4 is constitutional and valid.1 Id. at p. 41.
4. Because SB 4 did not garner a two-thirds majority of all members elected to each house, the law will go into effect on September 1, 2017.2 See Dkt. 23-1 at p. 15 (§ 7.02); id. at p. 17 (showing votes of Senate and House achieving less than a two-thirds majority).
B. Texas Complains that City Officials Criticized SB 4 Before it Became a Law 5. Texas complains that City officials publicly expressed their belief that SB 4 is not
a constitutional exercise of the State’s power. See Dkt. 23, ¶¶ 10, 59, 211-217. 6. Although Texas alleges that the City is violating SB 4 in various ways, it fails to
identify any alleged acts or omissions of the City occurring between the time the Governor signed SB 4 into law and the time of suit. Texas has not—and cannot—identify any City acts or omissions violating SB 4 that occur after the effective date of September 1, 2017.
C. SB 4 Contains Provisions to Punish Non-Compliant Municipalities and Officials 7. SB 4 prohibits “local entities” (a term defined to include municipalities and their
employees and officials) from adopting, enforcing, or endorsing any policy that would prohibit or “materially limit” local police or other officials from enforcing “immigration laws.” Dkt. 23-1 at 5-6 (§ 752.053). To enforce compliance with this provision, SB 4 provides that the Texas Attorney General may file suit to seek a civil penalty against a non-complaint local entity. If awarded by the
1 The amended complaint seeks the additional declaration that SB 4 is valid under the Texas Constitution. 2 Except for alleging that the Defendants will continue to violate SB 4 after September 1, 2017, Texas inexplicably omits the effective date of SB 4 from its amended complaint; instead pleading “Senate Bill 4 is Texas law as of May 7, 2017.” Dkt. 23 ¶ 172.
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court, the penalty must be between $1,000 and $1,500 for the first day of a violation, and between $25,000 and $25,500 for each additional day of a violation. Id. at 6-7 (§§ 752.055-752.056).
8. SB 4 punishes any elected or appointed official who “adopt[s], enforce[s], or endorse[s]” a policy that limits local police investigations of immigration status. Id. at 8-9 (§ 752.0565 (incorporating by reference § 752.053). Pursuant to this provision, SB 4 requires the Attorney General to file a quo warranto action against any elected or appointed official of a local entity if the AG is presented with evidence, “including evidence of a statement by the public officer,” establishing probable cause that the official violated SB 4 by, for example, endorsing an objectionable policy. The penalty for an official found “guilty as charged” is removal from office. Id.
III. ARGUMENT AND AUTHORITIES A. A Plaintiff Must Establish Standing to Invoke the Jurisdiction of this Court
9. The United States Constitution limits the jurisdiction of the federal courts to “Cases” or “Controversies.” U.S. CONST., Art. III, § 2. “The doctrine of standing gives meaning to these constitutional limits by identifying those disputes which are appropriately resolved through the judicial process.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (internal citation omitted).
10. To establish standing, a plaintiff must show: (1) it has suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is fairly traceable to defendant’s conduct; and (3) a favorable judgment is likely to redress the injury. Cruz v. Abbott, 849 F.3d 594, 598 (5th Cir. 2017). To satisfy the injury-in-fact requirement, a plaintiff must allege an injury that is actual or imminent, not conjectural or hypothetical. Id.
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11. The Declaratory Judgment Act also requires an “actual controversy” between the parties before a federal court may exercise its jurisdiction. 28 U.S.C. § 2201(a); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-41 (1937). The standard under Article III is “identical to the actual controversy requirement under the Declaratory Judgment Act.” Texas v. West Pub’g Co., 882 F.2d 171, 175 (5th Cir. 1989), cert. denied, 493 U.S. 1058 (1990). A district court lacks subject matter jurisdiction to issue a declaratory action pursuant to 28 U.S.C. § 2201(a) unless an actual controversy exists. Id.; see also Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000).
12. “Federal courts do not render advisory opinions.” Life Partners, Inc. v. Life Ins. Co. of North America, 203 F.3d 324, 325 (5th Cir. 1999). “It is not the function of district courts to sit in judgment on these nice and intriguing questions which today may readily be imagined, but may never in fact come to pass.” Villas at Parkside Partners v. City of Farmers Branch, 577 F.Supp.2d 880, 883 (N.D.Tex. 2008) (citation omitted). The Supreme Court has rejected attempts to use the Declaratory Judgment Act to obtain an advisory opinion:
The declaratory judgment procedure is available in the federal courts only in cases involving an actual case or controversy, where the issue is actual and adversary, and it may not be made the medium for securing an advisory opinion in a controversy which has not arisen. Coffman v. Breeze Corp., 323 U.S. 316, 324 (1945) (citations omitted). 13. “The refusal to provide advisory opinions is even greater in cases seeking a determination of the constitutionality of a law.” Villas at Parkside, 577 F.Supp.2d at 884 (citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-47 (1936)). In Villas at Parkside, the City of Farmers Branch attempted to obtain a ruling on the constitutionality of an ordinance it had recently passed. The district court dismissed the action for lack of jurisdiction, ruling that the City sought an impermissible advisory opinion. 577 F.Supp.2d at 885. In reaching its conclusion, the
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district court reasoned that “it would open a Pandora's box and invite every local government to seek a court's judicial blessing on an ordinance by giving it a prospective effective date and filing legal action to obtain an advisory opinion on the constitutionality of the ordinance before it went into effect.” Id. at 884-85.
14. In this case, with this lawsuit, the State of Texas is inviting the Court to open this Pandora’s box. The Court should reject that invitation and dismiss the State’s claims.
B. Texas Failed to Allege Any Constitutional Injury 15. Texas alleges several federal and state constitutional provisions as the bases for its
suit. Dkt. 23 ¶¶ 246-329. The State has failed to allege any conduct by the City that violates any of these constitutional provisions, however.
16. In regard to the Fourth Amendment, Texas does not allege that it has suffered any unreasonable search or seizure, nor that the City is responsible for any such injury. Thus, it has failed to establish standing to sue under the Fourth Amendment.
17. In regard to the Fourteenth Amendment right to equal protection, Texas does not allege that the City has deprived it of the equal protection of the law. Instead, Texas alleges that SB 4 does not violate this fundamental right. Therefore, Texas does not assert a claim against the City, but merely seeks affirmation that its law is valid.
18. In regard to the Fourteenth Amendment right to due process, Texas again does not allege that the City has taken any action to deprive it of due process of the law. To the contrary, Texas merely claims that SB 4 does not infringe on any person’s rights.
19. In regard to the Supremacy Clause, the State does not cite any City law or ordinance that would be preempted by federal law. Accordingly, the State has failed to establish jurisdiction over its preemption cause of action
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20. In regard to the First Amendment, Texas argues that SB 4 does not infringe on free speech—claiming that it does not interpret SB 4 as regulating any protected speech. Id. at ¶ 315. Once again, this is not a claim against the City, but a defense against real or future claims that other defendants have asserted, and that the City may bring in the future.
21. Finally, Texas argues that SB 4 does not violate the separation of powers in the Texas Constitution. Once again, this “claim” is not a claim against the City, but merely a defense against claims, real or anticipated. It does not, and can never, give Texas standing to sue the City regarding the validity of SB 4.
C. Texas Seeks an Impermissible Advisory Opinion 22. SB 4 is not in effect. Texas attempts to cure this problem by arguing that SB 4 is
“law.” Dkt. 23 ¶ 172. Simply claiming that a bill has been signed and printed does not cure the State’s jurisdictional defect, however. It is impossible for the City to take any action that would violate a not yet effective law, much less impose a cognizable legal injury upon the State. Accordingly, Texas has failed to establish standing and cannot invoke this Court’s jurisdiction.
23. Highlighting this jurisdictional defect, the Texas Attorney General filed suit mere hours after Governor Abbott signed SB 4 into law. Texas names twelve individual City defendants but does not identify any unconstitutional conduct that occurred in the period of time between the bill becoming a law and the suit being filed. Given that the Governor announced his signing online via “Facebook Live,” Sunday evening, May 7, 2017,3 and given that the AG filed suit at midnight
3 See https://www.facebook.com/TexasGovernor/videos/10155316084703256/?hc_ref=SEARCH (last accessed May 18, 2017); see also “Texas Gov. Abbott springs surprise on critics, with unannounced Facebook live signing of sanctuary ban,” Washington Post, May 8, 2017, at https://www.washingtonpost.com/news/morning-mix/wp/2017/05/08/texas-gov-abbott-springssurprise-on-critics-signing-sanctuary-cities-ban-unannounced-on-facebooklive/?utm_term=.e79324c0c394 (last accessed May 18, 2017).
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that same evening, it is not surprising that the State cannot identify a single objectionable act during the relevant time period.
24. In its amended pleadings, Texas has alleges that the City voted to sue over SB 4, and that City will continue to engage conduct that violates SB 4 until and after September 1, 2017. These facts—even if true—do not change the character of Texas’ lawsuit or give it standing. Fundamentally Texas is seeking an impermissible advisory opinion that SB 4 is valid. Texas’ claims should be dismissed.
D. Equitable Relief is Inappropriate Because Texas Has an Adequate Remedy at Law 25. The Declaratory Judgment Act confers no jurisdiction but is instead a procedural
device designed to provide an additional remedy for the federal court toolbox. See Haworth, 300 U.S. at 239-40. A district court is not required to provide declaratory judgment relief, and it is a matter for the district court’s sound discretion whether to decide a declaratory judgment action. Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 601 (5th Cir. 1983).
26. A court may properly consider the existence of an adequate alternate remedy when dismissing a declaratory judgment claim for lack of jurisdiction. Mission, 706 F.2d at 603 (citing 10A C. Wright, Miller & M. Kane, Federal Practice & Procedure: § 2758 (2d ed. 1983)); see also Granite State Ins. Co. v. Tandy Corp., 986 F.2d 94, 95-96, fn. 3 (5th Cir. 1992) (noting that Mission states the Fifth Circuit rule for discretionary jurisdiction over declaratory judgment claims).
27. Here, if SB 4 takes effect, the law provides its own remedial scheme. The State can seek to impose large civil fines on municipalities that protect their immigrant populations, and the State can seek to remove from office elected officials who dare to advocate for the civil and human rights of their constituents. The City has done nothing that would trigger Texas’ the right to sue.
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Indeed, the City could not do anything that would give the State the right to seek relief until SB 4 goes into effect. Even if the State is insecure about the constitutionality of a law the Legislature passed and the Governor signed, this Court is not the venue for the State to seek relief from any anxiety.
PRAYER Texas has failed to establish subject matter jurisdiction. The City requests that the Court grant its motion to dismiss.
Respectfully submitted, ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION /s/ Michael Siegel MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 Michael.Siegel@austintexas.gov Christopher.Coppola@austintexas.gov ATTORNEYS FOR CITY DEFENDANTS
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CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing City of Austin’s Amended
Motion to Dismiss on all parties, or their attorneys of record, in compliance with the Federal Rules
of Civil Procedure, this 2nd day of June, 2017.
Via Electronic Filing Brantley D. Starr, Deputy First Assistant Attorney General Michael C. Toth, Special Counsel to the First Assistant Attorney General Andrew D. Leonie, Associate Deputy Attorney General Austin R. Nimocks, Associate Deputy Attorney General Darren McCarty, Special Counsel for Civil Litigation David J. Hacker, Senior Counsel Joel Stonedale, Counsel Office of Special Litigation Attorney General of Texas P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 ATTORNEYS FOR PLAINTIFFS
David A. Escamilla, Travis County Attorney Sherine E. Thomas, Assistant County Attorney Sharon K. Talley, Assistant County Attorney Anthony J. Nelson, Assistant County Attorney Laurie R. Eiserloh, Assistant County Attorney Tim Labadie, Assistant County Attorney P. O. Box 1748 Austin, Texas 78767 (512) 854-9415 (512) 854-4808 FAX ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
Nina Perales MALDEF 110 Broadway, Suite 300 San Antonio, TX 78205 Phone: (210) 224-5476 Fax: (210) 224-5382 ATTORNEY FOR MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND
/s/ Michael Siegel MICHAEL SIEGEL
9

 
 Case 1:17-cv-00425-SS Document 53 Filed 06/16/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS; and KEN PAXTON, in his official capacity as Texas Attorney General,

Plaintiffs,

v.

TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County; CITY OF AUSTIN, TEXAS; ORA HOUSTON, DELIA GARZA, SABINO RENTERIA, GREGORIO CASAR, ANN KITCHEN, JIMMY FLANNIGAN, LESLIE POOL, ELLEN TROXCLAIR, KATHIE TOVO, and ALISON ALTER, all in their official capacities as City Council Members of the City of Austin; STEVE ADLER, in his official capacity as Mayor of the City of Austin; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso County; CITY OF EL CENIZO, TEXAS; RAUL L. REYES, in his official capacity as Mayor of the City El Cenizo; TOM SCHMERBER, in his official capacity as Sheriff of Maverick County; MARIO A. HERNANDEZ, in his official capacity as Constable Pct. 3-1 of Maverick County; the TEXAS ORGANIZING PROJECT EDUCATION FUND; the MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND; and the LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

Civ. Action No. 1:17-cv-425-SS NOTICE OF VOLUNTARY DISMISSAL PURSUANT TO FED.
R. CIV. P. 41(a)(1)(A)(i)

Defendants.

Case 1:17-cv-00425-SS Document 53 Filed 06/16/17 Page 2 of 5 Plaintiffs Texas and Ken Paxton, in his official capacity as Attorney General of the State of Texas, hereby give notice that their claims against Defendant Mexican American Legal Defense and Educational Fund (MALDEF) are voluntary dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
1

Case 1:17-cv-00425-SS Document 53 Filed 06/16/17 Page 3 of 5
Respectfully submitted this 16th day of June, 2017. KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 (512) 936-1414 (512) 936-0545 Fax ATTORNEYS FOR PLAINTIFFS
2

Case 1:17-cv-00425-SS Document 53 Filed 06/16/17 Page 4 of 5

CERTIFICATE OF SERVICE I certify that on the 16th day of June, 2017, the foregoing was electronically filed with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:

MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin Law Department 301 W. 2nd Street, Austin, TX 78701 P.O. Box 1536 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel@austintexas.gov christopher.coppola@austintexas.gov
ATTORNEYS FOR CITY OF AUSTIN
SHERINE E. THOMAS State Bar No. 00794734 SHARON K. TALLEY State Bar No. 19627575 ANTHONY J. NELSON State Bar No. 14885800 LAURIE EISERLOH State Bar No. 06506270 TIM LABADIE State Bar No. 11784853 Assistant County Attorneys Travis County Attorney P.O. Box 1748 Austin, TX 78767 Telephone: (512) 854-9415 Facsimile: (512) 854-4808 sherine.thomas@traviscountytx.gov sharon.talley@traviscountytx.gov tony.nelson@traviscountytx.gov laurie.eiserloh@traviscountytx.gov tim.labadie@traviscountytx.gov ATTORNEYS FOR TRAVIS COUNTY

NINA PERALES Texas Bar No. 24005046 MARISA BONO Texas Bar No. 24052874 CELINA MORENO Texas Bar No. 24074754 MALDEF [Mexican American Legal Defense & Educational Fund] 110 Broadway Street, #300 San Antonio, TX 78205 Telephone: (210) 224-5476 Facsimile: (210) 224-5382 nperales@maldef.org mbono@maldef.org cmoreno@maldef.org ATTORNEYS FOR MALDEF

3

Case 1:17-cv-00425-SS Document 53 Filed 06/16/17 Page 5 of 5 And I hereby certify that on the 16th day of June, 2017, that a true and correct copy of the foregoing has been sent via United States regular mail to the following: JOSE SANCHEZ California Bar No. 161362 Sidley Austin, LLP 555 West Fifth Street Los Angeles, California 90013 Telephone: (213) 896-6103 YOLANDA C. GARCIA Texas Bar No. 24012457 Sidley Austin, LLP 2021 McKinney Avenue, Ste. 2000 Dallas, TX 75201 Telephone: (214) 981-3300 Facsimile: (214) 981-3400 ygarcia@sidley.com jose.sanchez@sidley.com
/s/Darren McCarty DARREN MCCARTY
4

 
 Case 1:17-cv-00425-SS Document 60 Filed 06/28/17 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Texas, et al. v. Travis County, Texas, et al.

) CIVIL ACTION NO: ) 1:17-CV-00425-SS ) ) ) )

MOTION TO DISMISS BY DEFENDANTS CITY OF EL CENIZO, TEXAS, RAUL L. REYES, MAVERICK COUNTY, TOM SCHMERBER, AND MARIO A. HERNANDEZ

Defendants City of El Cenizo, Texas, Raul L. Reyes, Maverick County, Tom Schmerber,

and Mario A. Hernandez (“the El Cenizo parties”) move to dismiss Texas’s First Amended

Complaint pursuant to Fed. R. Civ. P. 12(b)(1).

In support of this motion, Defendants rely on the attached Memorandum.

For the reasons stated in this Motion and the accompanying Memorandum, Defendants

respectfully request the Court grant this Motion and dismiss this action.

Dated: June 28, 2017

Respectfully Submitted,

Lee Gelernt* Omar C. Jadwat* Andre I. Segura* Spencer E. Amdur* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org asegura@aclu.org samdur@aclu.org

/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187

1

Case 1:17-cv-00425-SS Document 60 Filed 06/28/17 Page 2 of 3

Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 esaldivar@aclutx.org

Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com

Cecillia D. Wang* Cody H. Wofsy* Stephen Kang* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwang@aclu.org cwofsy@aclu.org skang@aclu.org

*Pro Hac Vice Forthcoming Attorneys for the Defendants

2

Case 1:17-cv-00425-SS Document 60 Filed 06/28/17 Page 3 of 3

CERTIFICATE OF SERVICE

I, Luis Vera, Jr., hereby certify that on June 28, 2017 copies of Defendants’ Motion to Dismiss were electronically filed via the Court’s CM/ECF system.

Dated: June 28, 2017

/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net

Case 1:17-cv-00425-SS Document 60-1 Filed 06/28/17 Page 1 of 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Texas, et al. vs. Travis County, Texas, et al.

) CIVIL ACTION NO: ) 1:17-CV-00425-SS ) ) ) )

[PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO DISMISS

Upon consideration of Defendants’ Motion to Dismiss, it is HEREBY ORDERED that

the Defendants’ Motion to Dismiss is GRANTED.

SO ORDERED.

Entered this _____ day of _____, 2017

______________________________ Hon. Orlando L. Garcia United States District Judge

 
 Case 1:17-cv-00425-SS Document 61 Filed 06/28/17 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Texas, et al. vs. Travis County, Texas, et al.

) CIVIL ACTION NO: ) 1:17-CV-00425-SS ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS BY DEFENDANTS CITY OF EL CENIZO, TEXAS, RAUL L. REYES, MAVERICK
COUNTY, TOM SCHMERBER, AND MARIO A. HERNANDEZ Defendants City of El Cenizo, Texas, Raul L. Reyes, Maverick County, Tom Schmerber, and Mario A. Hernandez (“the El Cenizo parties”) move to dismiss Texas’s First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1). Immediately after SB 4 was signed, Texas filed this suit. Its barefaced attempt to outrun the lawsuits it anticipated, and thus upend the ordinary rule that plaintiffs—not governmental entities—decide the forum for challenges to statutes, fails. Indeed, permitting this case to proceed would set a dangerous precedent, inviting any state to run into court any time it enacts a controversial and legally vulnerable statute. Such requests for advisory opinions would be anathema to the constraints on federal judicial power. This case should be dismissed. Texas lacks standing, because it asserts no concrete harm. Even if Texas did have standing, the Court should nonetheless dismiss its lawsuit. The Declaratory Judgment Act provides for discretionary jurisdiction, and that discretion should not be exercised in favor of Texas’s highly unusual preemptive action that is now entirely redundant of El Cenizo, et al. v. Texas, No. 5:17-cv-404 (W.D. Tex. May 8, 2017). The El Cenizo case, which seeks injunctive relief from actual harm, provides the proper vehicle for litigation of
1

Case 1:17-cv-00425-SS Document 61 Filed 06/28/17 Page 2 of 8
Texas’s defense of SB 4. Applications for preliminary injunction have already been submitted and joined in that case, and a hearing was held on June 26. Texas has every opportunity to raise its claims in support of SB 4’s legality in that lawsuit—and has, in fact, done so. No purpose is served by Texas’s lawsuit, and it should be dismissed.1
In the alternative, if this Court does not dismiss, it should transfer the cases to Judge Garcia in San Antonio so he can make a comprehensive decision about all of these actions.
Background Texas filed its declaratory lawsuit late at night on Sunday, May 7, just hours after Governor Abbott signed SB 4 into law. See Compl. ¶ 115, Texas v. Travis County, et al., No. 1:17-cv-425 (W.D. Tex. May 7, 2017) (“Tex. Compl.”). Its complaint openly admitted that it was filed in anticipation of challenges to SB 4, id. ¶¶ 5, 10, 12, 113, 148, and sought nothing more than a declaration that SB 4 is constitutional, id. at 26. The complaint named only Travis County, Texas, the City of Austin, Texas, officials from Travis County and Austin (collectively, “Original Defendants”), and MALDEF – not the El Cenizo parties. On May 31, weeks after the El Cenizo plaintiffs sued Texas in San Antonio, the State amended its complaint in this case. The amended complaint added the El Cenizo plaintiffs as defendants, and added additional claims, including a First Amendment claim that was previously raised in El Cenizo’s Amended Complaint. On June 5, El Cenizo applied for a preliminary injunction in its own case. On June 6, the court consolidated El Cenizo with two other pending cases in the same division: El Paso County, et al. v. Texas, et al., No. 5:17-cv-459-OLG and City of San Antonio, et al. v. Texas, et al., No.
1 Several defendants have already moved to dismiss Texas’s lawsuit.
2

Case 1:17-cv-00425-SS Document 61 Filed 06/28/17 Page 3 of 8
5:17-cv-489-OLG. Numerous other parties, including the cities of Dallas, Houston, and Austin, and Travis County moved, and were allowed, to intervene in the San Antonio action.
All plaintiffs in the consolidated cases subsequently filed applications for a preliminary injunction in the San Antonio action. The State filed its response on June 23.
On June 26, a hearing was held on the preliminary injunction in El Cenizo, at which parties presented live witnesses and presented argument. Texas appeared and argued that the law is constitutional and not preempted.
ARGUMENT I. Texas Lacks Standing
Texas’s complaint makes its lack of standing plain, because the State is not facing any actual injury. See Bauer v. Texas, 341 F.3d 352, 357-58 (5th Cir. 2003) (declaratory plaintiffs must satisfy normal Article III standards). It recites one speculative injury: “Until SB 4 is declared constitutional, Defendants will continue with their unlawful policy or practice.” Tex. Compl. ¶ 154. And even if defendants’ continuation of their policies were a cognizable injury, this suit would not redress it: A declaration that SB 4 is legal would not end any policies. Defendants have sought to protect their policies, not through some campaign of noncompliance, but in suits to enjoin SB 4 in other litigation. Thus, it appears the actual “harm” Texas asserts is that jurisdictions will maintain their policies if and when SB 4 is enjoined. In other words, Texas appears to claim it will be injured by a ruling that SB 4 is unconstitutional. But any such injury would not be cognizable, as the State has no legitimate interest in enforcing a void statute.
In any event, even if the State has some cognizable interest in halting the policies, it surely has failed to demonstrate that, as it conclusory alleges, “Texas has no adequate or speedy remedy at law to correct or redress these violations of Texas law.” Amended Compl. ¶ 244. If
3

Case 1:17-cv-00425-SS Document 61 Filed 06/28/17 Page 4 of 8
the defendants were to refuse to comply with the law once it goes into effect, SB 4 itself imposes multiple draconian remedies, including jail time, Tex. Penal Code § 39.07, removal from office, SB 4 § 752.0565(a)-(c), and heavy fines, id. § 752.056(a). The statute even instructs state courts to fast-track these remedies. Id. § 752.0565(b). Thus Texas clearly has both an “adequate” and a “speedy” remedy at law for any violations of the statute—indeed, Texas itself enacted SB 4, deciding precisely what remedies it could invoke. It cannot, therefore, now complain that it lacks some further unnamed remedy at law that would be adequate. Declaratory relief exists for parties to resolve uncertainty that might cause actual harm—like accruing prospective liability—not for state governments to dictate the terms of litigation against their enactments.2
II. Even if the Case is Justiciable, the Court Should Dismiss Texas’s Suit Even if this case satisfies the minimum requirements of Article III, the Court should
exercise its discretion to dismiss Texas’s Complaint for Declaratory Judgment, because the claims are duplicates of their defenses to El Cenizo’s injunctive action, reflect an improper “race to the courthouse,” and run the risk of creating inconsistent judgments.
The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction, . . . any court of the United States . . . may declare the rights and other legal relations of any interest party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added). “Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). It is settled that a district court may “decline to hear a
2 See McDonald v. Equifax, Inc., 2008 WL 5156690, at *2 (N.D. Tex. Dec. 8, 2000) (“The primary purpose the Declaratory Judgment Act is to avoid accrual of avoidable damages to one not certain of his rights . . . .”) (quotes omitted). Texas’s own citations illustrate this purpose. See, e.g., Yeti Coolers, LLC v. Beavertail Products, LLC, 2015 WL 4759297, at *1 (W.D. Tex. Aug. 12, 2015) (declaration of rights needed to avoid accruing patent damages).
4

Case 1:17-cv-00425-SS Document 61 Filed 06/28/17 Page 5 of 8
declaratory judgment suit at the outset” if doing so would be “a wasteful expenditure of judicial resources.” Id. at 287-88.
Texas’s lawsuit is not an appropriate use of the declaratory judgment procedure because it was filed only to present anticipatory defenses—and to claim the choice of forum for a defendant-in-fact. “The anticipation of defenses is not ordinarily a proper use of the declaratory judgment procedure,” because “[i]t deprives the plaintiff of his traditional choice of forum and timing, and it provokes a disorderly race to the courthouse.” Morgan Drexen, Inc. v. Consumer Fin. Protection Bureau, 785 F.3d 684, 697 (D.C. Cir. 2015) (quotation marks omitted); see J.B. Hunt Transport, Inc. v. Innis, 985 F.2d 553 (Table), at *2 (4th Cir. 1993) (“Declaratory relief should not be used to deprive the real plaintiff of the choice of forum or to determine merely the ‘validity of a defense’ which would be asserted and could be determined in another action.”); Cunningham Bros., Inc. v. Bail, 407 F.2d 1165, 1167 (7th Cir. 1969), cert. denied, 395 U.S. 959 (1969) (“[T]o compel potential . . . plaintiffs to litigate their claims at a time and in a forum chosen by the alleged tort-feasor would be a perversion of the Declaratory Judgment Act.”); 909 Corp. v. Village of Bolingbrook Police Pension Fund, 741 F. Supp. 1290, 1292-93 (S.D. Tex. 1990).
That Texas’s suit serves no other purpose, such as the mitigation of damages while waiting for a potential lawsuit, is clear from its relationship to the other SB 4 litigation. Texas’s lawsuit is duplicative of El Cenizo’s injunctive lawsuit. The claims in Texas’s lawsuit are mirror images of the defenses raised in El Cenizo’s pending lawsuit in the San Antonio Division. El Cenizo claims that SB 4 violates the Supremacy Clause and the First, Fourth, Tenth, and Fourteenth Amendments of the Constitution; Texas’s complaint claims that SB 4 does not violate
5

Case 1:17-cv-00425-SS Document 61 Filed 06/28/17 Page 6 of 8
the Supremacy Clause and the First, Fourth, Tenth Amendments of the Constitution, and Texas raises these identical claims as defenses in the San Antonio case.
Ultimately, it appears that Texas immediately filed this suit principally to take advantage of the first-filed rule—which is not a legitimate use of the declaratory judgment mechanism. And, indeed, that Texas’s is the first-filed case does not make declaratory relief more proper. “[T]he real question for the court is not which action was commenced first but which will most fully serve the needs and convenience of the parties and provide a comprehensive solution of the general conflict.” Morgan Drexen, 785 F.3d at 697 (quoting 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2758, at 530-31 (3d ed. 2013)) (dismissing declaratory claims after an enforcement action was filed one month later); see also AmSouth Bank v. Dale, 386 F.3d 763, 786 (6th Cir. 2004) (“Normally, when a putative tortfeasor sues an injured party for a declaration of nonliability, courts will decline to hear the action in favor of a subsequently-filed coercive action by the ‘natural plaintiff.’”); Tempco Elec. Heater Corp. v. Omega Engineering, Inc., 819 F.2d 746, 749-50 (7th Cir. 1987) (upholding dismissal of declaratory action after enforcement action was subsequently filed, explaining that, because of the now-pending enforcement action, “a declaratory judgment would serve no useful purpose”). And, at any rate, the El Cenizo parties sued Texas weeks before Texas sued them. Texas cannot force all possible challengers to its new enactment to bring suit in the forum it chooses the day it enacts a law.
Dismissal will result in no prejudice to Texas. Texas has an adequate venue in which to litigate its defenses to challenges to SB 4. In fact, in its Response to the Applications for Preliminary Injunctions in El Cenizo, it has done just that. As numerous courts have recognized, a party in Texas’s situation “almost by definition [has] an adequate remedy in a court, that is, the remedy of opposing the Attorney General’s motions in the court in which he files his papers.”
6

Case 1:17-cv-00425-SS Document 61 Filed 06/28/17 Page 7 of 8

NAACP v. Meese, 615 F. Supp. 200, 203 (D.D.C. 1985); see Parke, Davis & Co. v. Califano, 564

F.2d 1200, 1206 (6th Cir. 1977) (“[P]ending enforcement actions provided an opportunity for a

full hearing before a court.”).

III. In the Alternative, Texas’s Case Should be Transferred to San Antonio

Finally, in the alternative, if this Court does not dismiss, it should transfer the cases to

Judge Garcia in San Antonio so he can make a comprehensive decision about all of these actions.

CONCLUSION

For the foregoing reasons, the Court should dismiss or, in the alternative, transfer Texas’s

Amended Complaint.

Dated: June 28, 2017

Respectfully Submitted,

Lee Gelernt* Omar C. Jadwat* Andre I. Segura* Spencer E. Amdur* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org asegura@aclu.org samdur@aclu.org
Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 esaldivar@aclutx.org

/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com

Cecillia D. Wang* Cody H. Wofsy*

7

Case 1:17-cv-00425-SS Document 61 Filed 06/28/17 Page 8 of 8 Stephen Kang* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwang@aclu.org cwofsy@aclu.org skang@aclu.org *Pro Hac Vice Forthcoming
Attorneys for the Defendants
8

 
 Case 1:17-cv-00425-SS Document 62 Filed 06/28/17 Page 1 of 10

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

§

TEXAS,

§

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS;

§

SALLY HERNANDEZ, in her official

§

capacity as Sheriff of Travis County,

§

Texas; CITY OF AUSTIN, TEXAS;

§

ORA HOUSTON, DELIA GARZA,

§

SABINO RENTERIA, GREGORIO

§

CASAR, ANN KITCHEN, JIMMY

§

FLANNIGAN, LESLIE POOL,

§

ELLEN TROXCLAIR, KATHIE TOVO,

§

and ALISON ALTER, all in their official

§

capacities as City Council Members of

§

the City of Austin, Texas; STEVE

§

ADLER, in his official capacity as Mayor §

of the City of Austin, Texas; ELAINE

§

HART, in her official capacity as Interim

§

City Manager of the City of Austin, Texas; §

EL PASO COUNTY, TEXAS; RICHARD §

WILES, in his official capacity as Sheriff of §

El Paso County; CITY OF EL CENIZO,

§

TEXAS; RAUL L. REYES, in his official §

Capacity as Sheriff of Maverick County;

§

MARIO A. HERNANDEZ, in his official §

Capacity as Constable Pct. 3-1 of

§

Maverick County; the TEXAS

§

ORGANIZING PROJECT EDUCATION §

FUND and the LEAGUE OF UNITED

§

LATIN AMERICAN CITIZENS,

§

§

Defendants.

§

§

CIVIL ACTION NO.: AU:17-cv-00425-SS

DEFENDANT TEXAS ORGANIZING PROJECT EDUCATION FUND’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
PURSUANT TO F.R.C.P. 12(b)(1) and 12(b)(6)

Case 1:17-cv-00425-SS Document 62 Filed 06/28/17 Page 2 of 10
The Texas Organizing Project Education Fund (“TOPEF”) files this motion to dismiss Texas’ First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
I. SUMMARY This Court should immediately dismiss Texas’ frivolous suit against TOPEF — a San Antonio-based nonprofit — for at least three reasons. First, Texas lacks standing. Second, Texas fails to state a claim upon which relief can be granted. In over forty pages of pleadings, Texas refers to TOPEF in just four paragraphs. Am. Compl., ECF No. 23 ¶¶ 16, 116, 117, 223. None come close to articulating any connection between TOPEF’s conduct and an injury suffered by Texas or identifying any cause of action upon which a lawsuit against TOPEF could be based. The only explanation for Texas’ lawsuit against TOPEF is one that violates the First Amendment of the United States Constitution — retaliation. The First Amended Complaint for Declaratory Judgment states plainly that it sued TOPEF because the community organizing group sought access to the federal courts “over the constitutionality of SB 4” and has characterized SB 4 as “a cruel and racially animated law.” Am. Compl. ¶¶ 117, 223. These grave First Amendment concerns provide the third reason for dismissal.
II. FACTUAL BACKGROUND On May 7, 2017, the same day Governor Abbott signed SB 4 into law, the State of Texas filed a complaint seeking a declaratory judgment from this Court that SB 4 is constitutional. Compl., ECF No. 1. On May 22, 2017, TOPEF, along with El Paso County and the Sheriff of El Paso County, Richard Wiles, brought suit against Texas for declaratory judgment and injunctive relief, alleging SB 4 violates the Constitution of the United States, the Texas Constitution, and federal law. See El Paso, et al. v. State of Texas, et al., 5:17-cv-00459 (W.D. Tex- San Antonio Division), Compl., ECF No. 1.
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Case 1:17-cv-00425-SS Document 62 Filed 06/28/17 Page 3 of 10
Just nine days later, Texas amended its complaint, adding TOPEF as a defendant. See Am. Compl. The Amended Complaint argues that the defendants, most of whom are elected officials in county and city governments, do not cooperate with federal immigration officials and have sued Texas over the constitutionality of SB 4. Am. Compl. ¶¶ 237, 239-40. The Amended Complaint advances no specific allegations against TOPEF. See Am. Compl. ¶¶ 16, 111-12, 223 (the only paragraphs that reference TOPEF).1 The Amendment Complaint does, however, correctly note that:
[TOPEF] is self-described as an education organization with a focus on working class neighborhoods in Dallas, Houston, and San Antonio. TOPEF claims to improve the lives of low-income and working class Texas families through education, civil engagement, and community organizing. Id. ¶ 111.
III. ARGUMENT
A. THIS COURT LACKS JURISDICTION TO HEAR THIS CASE DUE TO TEXAS’ LACK OF STANDING
Article III of the Constitution limits the jurisdiction of federal courts to “cases and controversies.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting U.S. CONST., Art. III, §§ 1, 2). Standing to sue, a doctrine rooted in the traditional understanding of a case or controversy, serves to “confine[] the federal courts to a properly judicial role.” Id. “As the part[y] invoking jurisdiction,” Texas bears the “burden of establishing standing.” Texas v. U.S., 809 F.3d 134, 154-5 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906 (2016).
1 A day after filing its Amended Complaint, Texas sought to consolidate the instant case with El Paso, et al. v. State of Texas; that motion has been held in abeyance pending the Court’s decision on the pending preliminary injunction motions filed in the consolidated cases. See Pls.’ Opposed Mot. to Consolidate, ECF No. 24; Pls.’ Mot. to Consolidate and Req. for Expedited Ruling, ECF No. 35; Order Setting All Pending Matters, ECF No. 54.
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Here, Texas is subject to the same Article III standards for establishing standing as any non-governmental plaintiff.2 Accordingly, for Texas to seek this Court’s protection against TOPEF, the State must establish “(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) and a likelihood that the injury will be redressed by a favorable decision.” Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015) (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)). Any alleged injury which is not actual, but rather imminent, must be “certainly impending” and not just “possible” to constitute an injury in fact. Crane, 783 F.3d at 251-52.
Texas has utterly failed to establish a causal connection between any injury it has suffered, or could imminently suffer, and TOPEF. Again, Texas refers to TOPEF in just four paragraphs. See Am. Compl. ¶¶ 16, 111-12, 223. After describing TOPEF’s mission as an “education organization with a focus on [improving] working class neighborhoods,” id. ¶ 111, Texas describes TOPEF’s involvement as a plaintiff in El Paso, et al. v. State of Texas, id. ¶ 112, see also id. ¶ 16, and complains that TOPEF has characterized SB 4 as “a cruel and racially animated law,” id. ¶ 223. These paragraphs are later incorporated into Texas’ boilerplate recitation of six causes of action, insisting that SB 4 does not violate the Constitution or other law, and “[a]bsent declaratory relief, Texas will continue to be harmed.” See Am. Compl. ¶¶ 259-262, 275-278, 289-292, 304-307, 316-320, 327-329. That’s it.
2 The “special solicitude” consideration applicable in Texas v. U.S., for instance, does not apply when Texas sues a community organization like TOPEF, with no federal authority, rather than the United States government. In Texas v. U.S., Texas’ standing was established based on the limited facts where there was “direct, substantial pressure directed at the states” and where it surrendered some of its control to the federal government, and highlighted that “pressure to change state law may not be enough — by itself — in other situations. Id. at 154-5. This is similar to the requirements articulated in Massachusetts v. EPA, where the court found Massachusetts to have standing when it faced actual and imminent harm from a federal agency’s refusal to act. Massachusetts v. E.P.A., 549 U.S. 497, 518-21 (2007).
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Of course, then, Texas has failed to show “a sufficiently high degree of likelihood” it will be injured by TOPEF. Pharmacy Buying Ass’n, Inc. v. Sebelius, 906 F. Supp. 2d 604, 614 (W.D. Tex. 2012) (Sparks, J.) (finding lack of standing when plaintiffs had not “identified a single example” of harm in the complaint, so their allegations were “conjectural or hypothetical”). Nor could it — the State’s general interest in statutory compliance does not by itself constitute injury, see Delta Commercial Fisheries Ass’n v. Gulf of Mex. Fishery Mgmt. Council, 364 F.3d 269, 273 (5th Cir. 2004) (holding that plaintiff’s interest in statutory compliance is not by itself an injury in fact for purposes of standing); Coastal Habitat All. v. Patterson, 601 F. Supp. 2d 868, 881 (W.D. Tex. 2008) (holding that desire for defendant to follow the law, alone, “is not an injury sufficient to confer standing”), and TOPEF is not even a “local entity” that is regulated by SB 4 and could therefore even violate SB 4. See Ex. 1 to Compl., ECF. No. 1-1 at 2 (§ 752.052(5)) (defining local entities as municipalities, counties, or special districts or authorities, and their employees).
Even if this Court were to conclude that Texas has sufficiently pleaded an injury in fact, Texas has failed to show a connection between TOPEF’s conduct and a threatened injury suffered by the state. This Court has dismissed complaints for this exact reason. See Koym v. Fry’s Elecs., No. A-08-CA-689-LY, 2009 WL 1883763, at *10 (W.D. Tex. June 30, 2009) (dismissing case for lack of standing where plaintiff failed to identify the specific actions of named defendants causing harm to plaintiff); City of San Antonio v. Edwards Aquifer Auth., No. SA-12-CA-620-OG, 2014 WL 12495605, at *6 (W.D. Tex. Mar. 31, 2014) (dismissing case for plaintiff’s failure to show how defendant played a causal role in injury, a “requirement for
5

Case 1:17-cv-00425-SS Document 62 Filed 06/28/17 Page 6 of 10
Article III standing”). Lacking any explanation of how it is or will be harmed by TOPEF’s conduct, Texas’ allegations are insufficient to establish standing.3
B. TEXAS’ CLAIMS AGAINST TOPEF SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(6)
1. Texas Fails to State a Claim Upon Which Relief can be Granted
The Amended Complaint provides no particularized allegations against TOPEF for
engaging in any conduct (other than seeking to vindicate protected rights in federal court), much
less any act that could form the basis of a cognizable claim. As is well established, to avoid
dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff must present “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also In re Southern Scrap
Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (citing Bell Atl. v. Twombly, 550 U.S. 544,
555, 570 (2007)). Well-pleaded factual allegations “must establish more than a sheer possibility
that a defendant has acted unlawfully,” Peck v. First State Home Loan, Ltd., No. A-13-CA-168-
SS, 2013 WL 12121108, at *1 (W.D. Tex. Apr. 10, 2013) (Sparks, J.), and “conclusory
allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
3 Texas also does not have statutory standing under the Declaratory Judgment Act, which requires a plaintiff to show a substantial and continuing controversy between the adverse parties. Schedeler v. Wells Fargo, N.A., No. 13-CA-875-SS, 2013 WL 12133969, at *3 (W.D. Tex. Dec. 20, 2013) (Sparks, J.). A district court does not have subject matter jurisdiction to issue a declaratory judgment when no controversy exists between the plaintiff and defendant. State of Tex. v. West Publ’g Co., 882 F.2d 171, 175 (5th Cir. 1989). To establish standing in an action seeking a declaratory judgment in federal court, the plaintiff confronts the same burden of establishing the same three elements necessary for Article III standing. Arnett v. Strayhorn, 515 F. Supp. 2d. 699, 703 (W.D. Tex. 2006) (Sparks, J.) (citing Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997)). Therefore, Texas’ failure to establish Article III standing, described above, also means that it cannot establish standing under the Declaratory Judgment Act. Marketing On Hold, Inc. v. Jefferson, No. A-10-CA-104-SS, 2010 WL 2900492, at *7 (W.D. Tex. July 19, 2010) (Sparks, J.).
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Here, Texas has provided no particularized factual allegations about TOPEF at all, so the Amended Complaint fails to raise any possibility that TOPEF has acted unlawfully. This Court should reject Texas’ improper invitation to blindly guess how declaratory relief against TOPEF could, somehow, someway, remedy the injuries alleged by Texas.
2. The Only Plausible Explanation for Texas’ Lawsuit Against TOPEF is Prohibited
TOPEF challenged the constitutionality of SB 4 due to the harms the law would cause to the organization, including racial profiling and a chilling effect on their First Amendmentprotected rights to freely associate, assemble and petition in San Antonio, TX. See El Paso, et al. v. State of Texas, et al., 5:17-cv-00459 (W.D. Tex- San Antonio Division), Compl., ECF No. 1. Mere days later, Texas added as a defendant every plaintiff who had sued it to that point, including TOPEF. As explained above, Texas did not and cannot allege any injury because of TOPEF’s conduct; the only plausible explanation for Texas’ lawsuit against TOPEF is retaliation.
As TOPEF has explained in its San Antonio action, “the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). It is well established that “[t]he right of access to the courts is . . . one aspect of the right of petition.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir. 1986). Thus, federal courts have specifically held that retaliatory lawsuits, like that brought by Texas against TOPEF, are unlawful. See, e.g., Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997) (“[n]umerous claims brought under Mt. Healthy — both in this Circuit and in others — have involved fact patterns in which the government took retaliatory action in response to an individual’s filing of a lawsuit”); Harrison v. Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1428 (8th Cir. 1986) (“state officials may not take retaliatory action
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Case 1:17-cv-00425-SS Document 62 Filed 06/28/17 Page 8 of 10
against an individual designed either to punish him for having exercised his constitutional right to seek judicial relief or to intimidate or chill his exercise of that right in the future”). Indeed, in its Response to Applications for Preliminary Injunction in El Paso v. Texas, the State agreed that that it is impermissible to retaliate “against individuals for speech or engaging in other constitutionally protected activity.” See El Paso, et al. v. State of Texas, et al., ECF No. 91 at 45 (citing Hartman, 547 U.S. at 256).
Because it was brought in retaliation against TOPEF for engaging in protected activities, including accessing the federal courts, the State’s continued litigation against TOPEF raises serious First Amendment concerns. This provides another reason dismissal is proper.
IV. CONCLUSION TOPEF respectfully requests that the Court dismiss Texas’ Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) because the Court lacks subject matter jurisdiction and Texas has failed to state a claim upon which relief can be granted. For these reasons, TOPEF’s Motion to Dismiss should be granted.
DATED: June 28, 2017
Respectfully submitted,
/s/ Mimi Marziani
Mimi Marziani State Bar No. 24091906 Texas Civil Rights Project 1405 Montopolis Drive Austin, Texas 78741 T: (512) 474-5073 mimi@texascivilrightsproject.org
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Efrén C. Olivares Texas Bar No. 24065844 Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, Texas 78516 T: (956) 787-8171 efren@texascivilrightsproject.org Cassandra Champion Texas Bar. No. 24082799 Texas Civil Rights Project 1405 Montopolis Drive Austin, Texas 78741 T: (512) 474-5073 champion@texascivilrightsproject.org ATTORNEYS FOR DEFENDANT TEXAS ORGANIZING PROJECT EDUCATION FUND
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CERTIFICATE OF SERVICE I, Mimi Marziani, hereby certify that, on June 28, 2017, in compliance with the Federal Rules of Civil Procedure, I filed the foregoing Defendant TOPEF’s Motion to Dismiss Plaintiffs’ First Amended Complaint via the Court’s ECF/CM system on all parties, or their attorneys of record.
/s/ Mimi Marziani MIMI MARZIANI
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Case 1:17-cv-00425-SS Document 62-1 Filed 06/28/17 Page 1 of 2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

§

TEXAS,

§

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS;

§

SALLY HERNANDEZ, in her official

§

capacity as Sheriff of Travis County,

§

Texas; CITY OF AUSTIN, TEXAS;

§

ORA HOUSTON, DELIA GARZA,

§

SABINO RENTERIA, GREGORIO

§

CASAR, ANN KITCHEN, JIMMY

§

FLANNIGAN, LESLIE POOL,

§

ELLEN TROXCLAIR, KATHIE TOVO,

§

and ALISON ALTER, all in their official

§

capacities as City Council Members of

§

the City of Austin, Texas; STEVE

§

ADLER, in his official capacity as Mayor §

of the City of Austin, Texas; ELAINE

§

HART, in her official capacity as Interim

§

City Manager of the City of Austin, Texas; §

EL PASO COUNTY, TEXAS; RICHARD §

WILES, in his official capacity as Sheriff of §

El Paso County; CITY OF EL CENIZO,

§

TEXAS; RAUL L. REYES, in his official §

Capacity as Sheriff of Maverick County;

§

MARIO A. HERNANDEZ, in his official §

Capacity as Constable Pct. 3-1 of

§

Maverick County; the TEXAS

§

ORGANIZING PROJECT EDUCATION §

FUND and the LEAGUE OF UNITED

§

LATIN AMERICAN CITIZENS,

§

§

Defendants.

§

§

CIVIL ACTION NO.: AU:17-cv-00425-SS

[PROPOSED] ORDER GRANTING DEFENDANT TEXAS ORGANIZING PROJECT EDUCATION FUND’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(b)(1) and 12(b)(6)

Case 1:17-cv-00425-SS Document 62-1 Filed 06/28/17 Page 2 of 2 Before the Court is Defendant Texas Organizing Project Education Fund’s Motion to Dismiss Plaintiff’s First Amended Complaint Pursuant to F.R.C.P. 12(b)(1) and 12(b)(6). Having duly considered all the parties’ papers filed in support and in opposition to the motion, the Court finds the motion should be GRANTED. It is therefore ORDERED that Plaintiff’s claims against Defendant Texas Organizing Project Education Fund are hereby DISMISSED. SIGNED AND ENTERED this ______ day of __________________________, 2017.
______________________________ HON. ORLANDO L. GARCIA CHIEF U.S. DISTRICT JUDGE
2

 
 Case 1:17-cv-00425-SS Document 64 Filed 06/29/17 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS AUSTIN DIVISION

TEXAS,

§

Plaintiff,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS, ET AL. § CIVIL ACTION NO. 1:17-CV-425-SS

Defendants.

§

THE COUNTY OF EL PASO AND SHERIFF RICHARD WILES’ MOTION TO DISMISS

The County of El Paso, and its Sheriff, Richard Wiles, file this motion to dismiss

Texas’ First Amended Complaint for Declaratory Relief [Dkt. 23] pursuant to Rule

12(b)(1) of the Federal Rules of Civil Procedure.

I.

SUMMARY

1. Texas’ suit seeks to conjure a case or controversy out of thin air based solely

on El Paso County’s decision to file suit against the State of Texas grounded in its belief that

SB 4 is unconstitutional and would impermissibly interfere with the judicial and executive

discretion of El Paso’s constitutional officers. Texas has no jurisdiction to seek relief from this

Court as it has suffered no cognizable or justiciable injury, as SB 4 is not in effect and won’t be

until September 1, 2017. Instead, Texas seeks an advisory opinion based not any real or concrete

injury, but the misadventure of its assumptions, assertions, and baseless allegations. Federal

courts have declined to enter the fray of advisory opinions, and instead have focused their

energies on cases with actual injury. Texas has no pre-enforcement injury that would give rise

to case or controversy before this Court. Thus, the County’s motion to dismiss should be

granted.

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II. FACTS

2. The State filed this suit on May 7, 2017. Dkt. 1. El Paso County nor any of its

officials were included as defendants at this time.

3. On May 22, 2017, El Paso County filed suit against the State of Texas alleging

violations or state and federal law in the San Antonio Division of the Western District of Texas.

See El Paso, et al. v. Texas, et al., 5:17-cv-00459-OLG (W.D. Tex., San Antonio Division).

4. Between May 22, 2017 and May 31, 2017, El Paso County, nor any of its public

officials, have changed any of their policies concerning ICE detainers or compliance with federal

immigration laws.

5.

The State then filed an amended complaint on May 31, 2017. Dkt. 23. The

amended complaint, like the original complaint, seeks only declaratory relief that SB 4 is

constitutional and valid and it added several new defendants including El Paso County and its

Sheriff.

6.

SB 4’s effective date is September 1, 2017.

7.

The County of El Paso nor any of its public officials have violated any law,

statutory duty, or administrative rule currently in effect nor has Texas alleged any violation of

any law currently in effect that would confer standing for this lawsuit.

8.

Texas spends 16 of its 329 paragraphs describing El Paso and its Sheriff. See

Dkt. 23, ¶¶ 71-80, 218-223. In 4 of those paragraphs, Texas alleges that El Paso has a policy of

ignoring federal immigration law and not honoring ICE detainers. Texas further alleges that El

Paso engages in a pattern and practice of prohibiting enforcement of federal immigration law.

See Dkt. 23, ¶¶ 72, 78, 218-9.

9.

Texas, then, cities that Sheriff Wiles described SB 4 as “pointless.” Dkt. 23, ¶

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220. 10. Finally, Texas describes the decision by El Paso to sue the State of Texas
before implementation of SB 4. Dkt. 23, ¶¶ 219-223.
III. ARGUMENT AND AUTHORITIES
11. None of these averred facts as to El Paso County and its Sheriff create the particularized injury necessary to confer jurisdiction on this Court.1 There have been several motions to dismiss in this litigation filed by other jurisdictions that are similarly situated as El Paso County and its public officials. We join those efforts and motions. If those motions to dismiss are granted, then the case against El Paso and its public officials must be dismissed as well.2
12. The United States Constitution limits the jurisdiction of the federal courts to “Cases” or “Controversies.” U.S. CONST., Art. III, § 2; Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting U.S. CONST., Art. III, §§ 1, 2). Standing to sue, a doctrine rooted in the traditional understanding of a case or controversy, serves to “confine[] the federal courts to a properly judicial role.” Id. “As the part[y] invoking jurisdiction,” Texas bears the “burden of establishing standing.” Texas v. U.S., 809 F.3d 134, 154-5 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906 (2016).
13. Texas must establish “(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) and a likelihood that the injury will be redressed by a favorable decision.” Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015)
1 To be clear, El Paso and its Sheriff dispute the veracity of several of these allegations. But, at this stage of the litigation, they must be taken as true. 2 There are no distinguishable facts averred against El Paso or its Sheriff that would differentiate the pending motions to dismiss.
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(quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)). Any alleged injury which is not actual, but rather imminent, must be “certainly impending” and not just “possible” to constitute an injury in fact. Crane, 783 F.3d at 251-52. Texas cannot meet these standards as to El Paso or its Sheriff.
Neither El Paso nor its Sheriff has injured Texas 14. Texas does not point to any conduct by El Paso County or its Sheriff that would form the basis of a cognizable claim under current federal or state law. A plaintiff must present “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also In re Southern Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (citing Bell Atl. v. Twombly, 550 U.S. 544, 555, 570 (2007)). The injury alleged by Texas is that the El Paso defendants have a policy of non-cooperation with federal immigration laws, ignore ICE detainer requests, and engage in a pattern or practice of prohibiting federal immigration enforcement. Dkt. 23, ¶¶ 72,78, 218-9. Currently, Texas has no standing nor ability to seek a remedy for these alleged violations, as immigration policy and compliance with that policy is wholly dedicated to the federal government. U.S. CONST., Art. I, § 8, cl. 3. In fact, none of Texas’ stated causes of actions ask this Court to force the El Paso defendants to change its policies and enforce federal immigration law. Texas only seeks a declaratory judgment that SB 4 is constitutional, which in no way would cure any alleged injury. Where there is no remedy, there is no right. 15. Texas alleges several federal and state constitutional provisions as the bases for its suit. Dkt. 23 ¶¶ 246-329. These bases are made clear in its prayer for relief: “[d]eclare that SB 4 is valid under the First, Fourth, and Fourteenth Amendments to the United States
4

Case 1:17-cv-00425-SS Document 64 Filed 06/29/17 Page 5 of 10
Constitution; SB 4 is not preempted by federal law; and SB 4 does not violate provisions of the Texas Constitution.” Dkt. 23, p. 41.
16. The State has failed to allege any conduct by the County has violated any of these constitutional provisions. Texas does not allege that it has suffered any unreasonable search or seizure. It has not averred that the County is responsible for any such injury. Thus, it has failed to establish standing to sue under the Fourth Amendment. Texas does not allege that the County has deprived it of the equal protection of the law. Instead, Texas alleges that SB 4 does not violate this fundamental right. Therefore, Texas cannot assert this claim against the County. Texas also does not allege that the County has taken any action to deprive it of due process of the law. The State does not cite any County order or policy that would be preempted by federal law. Accordingly, the State has failed to establish jurisdiction for its preemption cause of action or its cause of action pursuant to the due process clause of the 14th Amendment. Texas makes no allegation that the County has violated the First Amendment. Therefore, it has not properly alleged any facts that would grant this court jurisdiction to issue a remedy against El Paso pursuant to the First Amendment. Texas argues that SB 4 does not violate the separation of powers in the Texas Constitution. This claim cannot be a claim against the County, as Texas has not stated any facts that the County is violating the separation of powers of the Texas Constitution. Texas, simply, has not pled these causes of action in a way that would confer standing on Texas to seek a remedy against the El Paso defendants.
17. If the injury alleged by Texas is not actual, then it must be impending or there must be “a sufficiently high degree of likelihood” that it will be injured by the El Paso defendants. Pharmacy Buying Ass’n, Inc. v. Sebelius, 906 F. Supp. 2d 604, 614 (W.D. Tex. 2012) (Sparks, J.) (finding lack of standing when plaintiffs had not “identified a single
5

Case 1:17-cv-00425-SS Document 64 Filed 06/29/17 Page 6 of 10
example” of harm in the complaint, so their allegations were “conjectural or hypothetical”). The State has not pled an injury or an factual allegations that El Paso’s injury against Texas is impending or even likely. However, even if Texas has sufficiently pled this, then injury it has pled is not a judicially sanctioned injury. The State’s need for El Paso to comply with a law that is not in effect is not injury in fact. See Delta Commercial Fisheries Ass’n v. Gulf of Mex. Fishery Mgmt. Council, 364 F.3d 269, 273 (5th Cir. 2004) (holding that plaintiff’s interest in statutory compliance is not by itself an injury in fact for purposes of standing); Coastal Habitat All. v. Patterson, 601 F. Supp. 2d 868, 881 (W.D. Tex. 2008) (holding that desire for defendant to follow the law, alone, “is not an injury sufficient to confer standing”). If the injury alleged is not an injury recognized by federal courts, then Texas has no standing to file this suit.
18. The U.S. Constitution prevents Texas from seeking a remedy El Paso’s supposed non-compliance with federal immigration law enforcement. Texas has not plead any injury by El Paso that would give rise to the causes of action that it asserts. The injury that Texas alleges, (i.e. violations of SB 4) are not injuries in fact as SB 4 is not in effect. And, that injury also is not injury recognized by this Court or any other, because the need for compliance with statutes is not injury in fact. In short, if the El Paso defendants are violating federal immigration law, then the United States would be the proper party to seek that remedy. If El Paso is violating SB 4, then Texas will have the right to seek a remedy in state court for that violation, once SB 4 is in effect. Unless and until then, Texas has not alleged an injury and has no standing to file this suit against El Paso for an imagined injury.
Texas also does not have standing to seek a Declaratory Action 19. Texas also does not have statutory standing under the Declaratory Judgment Act, which requires a plaintiff to show a substantial and continuing controversy between the
6

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adverse parties. Schedeler v. Wells Fargo, N.A., No. 13-CA-875-SS, 2013 WL 12133969, at *3 (W.D. Tex. Dec. 20, 2013) (Sparks, J.). A district court does not have subject matter jurisdiction to issue a declaratory judgment when no controversy exists between the plaintiff and defendant. State of Tex. v. West Publ’g Co., 882 F.2d 171, 175 (5th Cir. 1989). To establish standing in an action seeking a declaratory judgment in federal court, the plaintiff confronts the same burden of establishing the same three elements necessary for Article III standing. Arnett v. Strayhorn, 515 F. Supp. 2d. 699, 703 (W.D. Tex. 2006) (Sparks, J.) (citing Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997)). Therefore, Texas’ failure to establish Article III standing, described above, also means that it cannot establish standing under the Declaratory Judgment Act. Marketing On Hold, Inc. v. Jefferson, No. A-10-CA-104-SS, 2010 WL 2900492, at *7 (W.D. Tex. July 19, 2010) (Sparks, J.).
20. Even if Texas has sufficiently plead injury for a declaratory action, this Court has the discretion to dismiss this suit and should exercise that discretion. A court may properly consider the existence of an adequate alternate remedy when dismissing a declaratory judgment claim for lack of jurisdiction. Granite State Ins. Co. v. Tandy Corp., 986 F.2d 94, 95-96, fn. 3 (5th Cir. 1992) . In this case, when SB 4 becomes effective, it will have multiple avenues to remedy the alleged injury of the El Paso plaintiffs, including severe civil penalties, removal from officer, and criminal sanctions for the Sheriff.
Judicial Policy Reasons to Deny Texas’ legal fiction 21. Texas has invoked the jurisdiction of this Court to seek a declaration that a law is constitutional. Laws are presumed constitutional, and it is up to plaintiffs to prove otherwise. Burlington Northern & Santa Fe Ry.Co. v. Poole Chemical Co., 419 F. 3d 355, 361 (5th Cir. 2005) citing Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W. 2d 931, 934 (Tex. 1996). If SB
7

Case 1:17-cv-00425-SS Document 64 Filed 06/29/17 Page 8 of 10
4 becomes effective, then it will have adequate remedies in state law to solve El Paso’s supposed failure to comply with federal immigration enforcement. If Texas’ laws are presumed constitutional and it will soon have the ability to remedy the alleged injuries of the Defendants, then what is Texas’ real purpose in seeking this suit?
22. Texas filed this lawsuit just a few short hours before it was signed by the Governor and months before it will ever be enforced. The motive for filing action could be the common desire of litigants desire to control venue in courts that they believe will be most receptive to their arguments. This is a desire with which many plaintiffs are acquainted. However, there could be a darker desire in filing this suit by Texas, the elimination of dissent. Texas began this lawsuit by suing the Mexican American Legal Defense and Education Fund. And, now, it has enlarged this suit to include other nonprofits like the Texas Organizing Project Education Fund. These are entities that cannot violate federal immigration law nor SB 4 in any circumstances, now or in the future. They are, however, vocal dissidents of the policy and perspectives that fuel SB 4. It is important to note, if Texas is engaging in litigation to curtail dissent, then under Texas Law this suit would be subject to dismissal. See Texas Civ. Prac. & Rem. Code § 27.03. Either of these motivations should be rejected by this Court.
23. This is not the first time in recent history that the State of Texas has sought to control impending litigation. Before the passage of any redistricting bill, the staff of the Speaker of the House met with and advised a litigant on filing suit against the State of Texas to try and control any ensuing redistricting litigation pursuant to the first filed rule. This attempt failed as the suit was dismissed. If this Court allows Texas to move forward with this suit, then it can expect many more suits to be pre-emptively filed by Texas and many other jurisdictions in the very near term. Jurisdictions large and small seeking to enact deeply controversial bills will
8

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seek forums that are inconvenient for most litigants and seek injury against parties that cannot

defend those suits. While the burden legally is flipped (i.e. Texas must prove by a

preponderance in this litigation that SB 4 is constitutionally valid), the resource burden on

future “defendants” would be too onerous to vigorously seek their rights. This would cut-off

access to courts by litigants seeking to remedy actual and concrete injuries. This is especially

true of nonprofits like TOPEF and MALDEF who routinely represent plaintiffs that do not have

the resources to seek redress. That is a genuine misadventure this Court must reject.

CONCLUSION & PRAYER

24. Texas has failed to establish an injury in fact. It does not have standing to seek

the remedies it seeks. The causes of action cannot sought cannot apply to any alleged activity of

the El Paso defendants. And, even if the Court, finds that Texas has plead adequate injury, it

still should decline this attempt at a declaratory action because Texas has multiple other

remedies at law. El Paso and its Sheriff requests that this Court grant its motion to dismiss.

DATED: June 28, 2017

Respectfully,

By: /s/ Jose Garza

GARZA GOLANDO MORAN Jose Garza Attorney-In-Charge garzpalm@aol.com Texas Bar No. 07731950 Michael Moran michael@ggmtx.com State Bar No. 2409285 115 E. Travis St., Ste. 1235 San Antonio, Texas 78205 (210) 892-8543 Attorneys for Plaintiffs EL PASO COUNTY; and RICHARD WILES, SHERIFF OF EL PASO COUNTY

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Case 1:17-cv-00425-SS Document 64 Filed 06/29/17 Page 10 of 10 CERTIFICATE OF SERVICE
I certify that, on June 23, 2017, I filed the foregoing Plaintiffs El Paso County, et al.’s Motion to Dismiss with the Court’s ECF/CM system, which will serve a copy on all counsel of record.
/s/ Jose Garza Jose Garza
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 Case 1:17-cv-00425-SS Document 65 Filed 06/29/17 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Texas, et al. v. Travis County, Texas, et al.

) CIVIL ACTION NO: ) 1:17-CV-00425-SS ) ) ) )

AMENDED MOTION TO DISMISS BY DEFENDANTS CITY OF EL CENIZO, TEXAS, RAUL L. REYES, MAVERICK COUNTY, TOM SCHMERBER, MARIO A. HERNANDEZ, AND LEAGUE OF UNITED LATIN AMERICAN CITIZENS

Defendants City of El Cenizo, Texas, Raul L. Reyes, Maverick County, Tom Schmerber,

Mario A. Hernandez, and League of United Latin American Citizens (“the El Cenizo parties”)

move to dismiss Texas’s First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1).

In support of this motion, Defendants rely on the attached Memorandum.

For the reasons stated in this Amended Motion and the accompanying Memorandum,

Defendants respectfully request the Court grant this Amended Motion and dismiss this action.

Dated: June 29, 2017

Respectfully Submitted,

Lee Gelernt* Omar C. Jadwat* Andre I. Segura* Spencer E. Amdur* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org asegura@aclu.org samdur@aclu.org

/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS

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Case 1:17-cv-00425-SS Document 65 Filed 06/29/17 Page 2 of 3

Edgar Saldivar Trisha Trigilio AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 esaldivar@aclutx.org ttrigilio@aclutx.org

P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com

Cecillia D. Wang* Cody H. Wofsy* Stephen Kang* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwang@aclu.org cwofsy@aclu.org skang@aclu.org

*Pro Hac Vice Forthcoming Attorneys for the Defendants

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CERTIFICATE OF SERVICE

I, Max Renea Hicks hereby certify that on June 29, 2017 copies of Defendants’ Amended Motion to Dismiss were electronically filed via the Court’s CM/ECF system.

Dated: June 29, 2017

/s/ Max Renea Hicks Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com

Case 1:17-cv-00425-SS Document 65-1 Filed 06/29/17 Page 1 of 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Texas, et al. vs. Travis County, Texas, et al.

) CIVIL ACTION NO: ) 1:17-CV-00425-SS ) ) ) )

[PROPOSED] ORDER GRANTING DEFENDANTS’ AMENDED MOTION TO DISMISS

Upon consideration of Defendants’ Amended Motion to Dismiss, it is HEREBY

ORDERED that the Defendants’ Amended Motion to Dismiss is GRANTED.

SO ORDERED.

Entered this _____ day of _____, 2017

______________________________ Hon. Sam Sparks United States District Judge

 
 Case 1:17-cv-00425-SS Document 71 Filed 07/12/17 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS; and KEN PAXTON, in his official capacity as Texas Attorney General,

Plaintiffs,

v.

TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County; CITY OF AUSTIN, TEXAS; ORA HOUSTON, DELIA GARZA, SABINO RENTERIA, GREGORIO CASAR, ANN KITCHEN, JIMMY FLANNIGAN, LESLIE POOL, ELLEN TROXCLAIR, KATHIE TOVO, and ALISON ALTER, all in their official capacities as City Council Members of the City of Austin; STEVE ADLER, in his official capacity as Mayor of the City of Austin; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso County; CITY OF EL CENIZO, TEXAS; RAUL L. REYES, in his official capacity as Mayor of the City El Cenizo; TOM SCHMERBER, in his official capacity as Sheriff of Maverick County; MARIO A. HERNANDEZ, in his official capacity as Constable Pct. 3-1 of Maverick County; the TEXAS ORGANIZING PROJECT EDUCATION FUND; the MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND; and the LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

Civ. Action No. 1:17-cv-425-SS
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’
MOTIONS TO DISMISS (ECF NOS. 60, 61, 62, 64, 65 & 66)

Defendants.

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Case 1:17-cv-00425-SS Document 71 Filed 07/12/17 Page 2 of 12
Texas and Ken Paxton, in his official capacity as the Attorney General of Texas (collectively, “Texas”), respond to the Texas Organizing Project Education Fund’s (“TOPEF’s”) Motion to Dismiss (ECF No. 62), the County of El Paso and Sheriff Richard Wiles’s Motion to Dismiss (ECF No. 64), and El Cenizo Defendants’1 Motion to Dismiss (ECF Nos. 60 & 61) and Amended Motion to Dismiss (ECF Nos. 65 & 66)2 as follows:
INTRODUCTION This is the second round of largely repetitive motions to dismiss Texas’s declaratory judgment action seeking a ruling on the constitutionality of Senate Bill 4 (“SB 4”), which prohibits localities from implementing policies against cooperation with federal immigration officials. Since SB 4 passed, at least a dozen localities, local officials, and nonprofits sued Texas and its officials in three lawsuits, claiming SB 4 infringes on constitutional protections and impermissibly treads on powers exclusively reserved to the federal government. Those cases have since been consolidated before Judge Garcia in the San Antonio Division. On June 26, 2017, Judge Garcia held a lengthy hearing on several separate applications for preliminary injunction challenging the constitutionality of SB 4. The State of Texas understood the concrete dispute over the constitutionality of SB 4 and filed suit here, first and in the proper venue, to ensure timely consideration by the Court under the Declaratory Judgment Act. The events since Texas’s filing, namely a multiplicity of lawsuits facially challenging SB 4, only
1 El Cenizo Defendants are the City of El Cenizo, Texas, Raul L. Reyes, Maverick County, Tom Schmerber, Mario A. Hernandez, and the League of United Latin American Citizens (“LULAC”).
2 El Cenizo Defendants’ amended motion is largely identical to the prior motion to dismiss, with the exception that LULAC joins in the amended motion to dismiss, but not the original version. In an abundance of caution, Texas responds to both motions in this brief and asserts that both should be denied.
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underscore the propriety of the State’s action. Because there is a ripe controversy for adjudication, Defendants’ motions to dismiss should be denied, and the question of SB 4’s constitutionality should be answered in an orderly, unified fashion in this Court—the only proper venue for this action. See Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion to Consolidate, ECF No. 35-1.
ARGUMENT Defendants bring their motions to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).3 “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). “A motion under 12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.” Id. I. Texas’s Action Is Proper Under the Declaratory Judgment Act. Texas’s Amended Complaint is proper under the Declaratory Judgment Act, which grants every federal court the power “in a case of actual controversy within its jurisdiction . . . [to] declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). As the Supreme Court explained, “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007); see also Orix Credit
3 TOPEF also asserts that Texas has failed to state a claim under Rule 12(b)(6). That argument melds into TOPEF’s assertion that Texas lacks standing to pursue its claims and is addressed in Section II, infra.
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Alliance, Inc. v. Wolfe, 212 F.3d 891, 896 (5th Cir. 2000) (“As a general rule, an actual controversy exists where ‘a substantial controversy of sufficient immediacy and reality [exists] between parties having adverse having adverse legal interests.’” (citation omitted)). “Whether particular facts are sufficiently immediate to establish an actual controversy is a question that must be addressed on a case-by-case basis.” Wolfe, 212 F.3d at 896.
A declaratory judgment action is ripe for judicial determination when “an issue presents purely legal questions” and the plaintiff shows “some hardship.” Cent. & S.W. Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000). Thus, the mere threat of litigation can “establish a controversy upon which declaratory judgment can be based.” Wolfe, 212 F.3d at 897. Therefore, the Court has the authority to provide Texas with declaratory relief. See Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 388 (5th Cir. 2003); St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 591 (5th Cir. 1994); Travelers Ins. Co. v. La. Farm Bureau Fed’n, Inc., 996 F.2d 774, 776–77 (5th Cir. 1993).
In Travelers, the declaratory judgment action was preemptively brought “to avoid a multiplicity of suits in various forums . . . .” Travelers, 996 F.2d at 777. As explained in the complaint, suit was brought “so that the one pertinent issue, which involved [several individuals] who could have brought suit in multitudinous forums . . . could be resolved consistently in one, rather than multiple, forums.” Id. “Such a goal, unlike that of changing forums or subverting the real plaintiff’s advantage in state court, is entirely consistent with the purposes of the Declaratory Judgment Act.” Id. Thus, consistent with the purposes of the Declaratory Judgment Act, Texas brings this action “to avoid a multiplicity of suits in various forums . . . so that the one pertinent issue . . . [can] be resolved consistently in one, rather than multiple, forums.” Id.
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Here, not only was there a valid threat of litigation, but that threat was in fact carried out, as all of the defendants filed lawsuits against Texas over the same constitutional questions addressed in this action. Texas initiated this action based on Defendants’ assertions that SB 4 is unconstitutional, TOPEF Mot. to Dismiss 7, ECF No. 62; First Am. Compl. ¶¶ 11–16, 223, 231, 233, 240, ECF No. 23, they maintain policies or will create policies of noncompliance with SB 4, First Am. Compl. ¶¶ 201– 09, 213–14, 218, 224–25, 229–31, 234, and they are preparing litigation against Texas over SB 4, id. ¶¶ 19, 211–17, 221, 227, 240. These allegations, standing alone, are sufficient to demonstrate a substantial controversy and give the Court jurisdiction over Texas’s declaratory judgment action. But, in addition, each defendant later filed suit against Texas over the constitutionality of SB 4. Id. ¶¶ 222, 226, 228, 232, 236, 240; see Texas v. West Publ’g. Co., 882 F.2d 171, 176 (5th Cir. 1989) (noting that “the plaintiff must allege a course of conduct that implies an imminent threat of impending legal action by the defendant.” (quotation marks omitted)).
In a quite similar circumstance, though with far less public attention and without any pending affirmative litigation, a federal district court determined that a government could seek a determination of the constitutionality of its school board apportionment plan based on their adversaries’ “doubts about the constitutionality” of the plan, their opposition to the previous version of the plan, and the fact that they could clearly seek invalidation of the plan in the future. See Baker v. Reg’l High Sch. Dist. No. 5, 476 F. Supp. 319, 321 (D. Conn. 1979) (ultimately declining to decide the issue at that time for prudential reasons); see also NUCOR Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 578 (7th Cir. 1994) (affirming exercise of jurisdiction under Declaratory Judgment Act when party sent “notice letter” to opponent indicating intent to sue). This case law, in combination with Defendants’ actions vis-à-vis SB 4, establishes a “case of actual controversy” under the
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Declaratory Judgment Act, and the appropriateness of Texas invoking the Act to obtain relief in this Court. II. Texas Has Standing to Bring This Case.
For the same reasons that this case is ripe for review, Texas has standing against each defendant to bring this action. El Paso and Sheriff Wiles argue that Texas fails to allege any constitutional injury sufficient to confer standing because the “State has failed to allege any conduct by the County has violated” the constitutional provisions Texas cites in its Amended Complaint. ECF No. 64 ¶ 16. And TOPEF likewise asserts that Texas has “failed to establish a causal connection between any injury it has suffered, or could imminently suffer, and TOPEF.” ECF No. 62 at 4. But in a pre-enforcement declaratory judgment action, the Fifth Circuit asks whether the defendant has standing to sue the plaintiff:
[s]ince it is the underlying cause of action of the defendant against the plaintiff that is actually litigated in a declaratory judgment action, a party bringing a declaratory judgment action must have been a proper party had the defendant brought suit on the underlying cause of action. Collin Cty., Tex. v. Homeowners Ass’n for Values Essential to Neighborhoods, (HAVEN), 915 F.2d 167 (5th Cir. 1990); see Md. Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941) (“It is immaterial that frequently, in the declaratory judgment suit, the positions of the parties in the conventional suit are reversed; the inquiry is the same in either case.”). Thus, the proper inquiry is whether El Paso County, Sheriff Wiles and TOPEF have standing to sue Texas. TOPEF claims it does, as does El Paso County. Hr’g Tr. 22–23, 27, June 29, 2017. TOPEF further alleges in its San Antonio complaint it “is injured as an organization by SB 4,” claiming “both organizational and associational standing.” See El Paso Cty. v. Texas, No. 5:17-cv459-OLG, Compl. ¶¶ 6, 19, ECF No. 1 (May 22, 2017) (W.D. Tex., San Antonio Division). If TOPEF has standing to challenge SB 4, this is a substantial controversy
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Case 1:17-cv-00425-SS Document 71 Filed 07/12/17 Page 7 of 12
under the Declaratory Judgment Act. TOPEF claims a controversy with Texas over SB 4.4 The same is true for El Paso County and Sheriff Wiles. Id. ¶¶ 7–8, 18.
As explained above, one way to establish a “substantial controversy” and “sufficient immediacy” is through a valid “threat of litigation.” Orix Credit, 212 F.3d at 897. “The focus is on defendant’s conduct toward plaintiff,” Morris v. Dearborne, 69 F. Supp. 2d 868, 880–81 (E.D. Tex. 1999), demonstrating “a threat that is real and immediate, not conjectural or hypothetical.” Id. at 881. Because Texas’s anticipation of litigation materialized after it filed this action, see Section I, supra, Defendants’ threats could not be second-guessed as anything but a ripe controversy.
SB 4 was designed to prevent localities from forming a patchwork of inconsistent policies of federal cooperation across Texas. First Am. Compl. ¶¶ 218, 224, 229, 234. By ending local policies that block the federal government’s ability to enforce immigration law, SB 4 aims to ensure that suspected and convicted criminals are not released back onto the streets and that the respect for the rule of law continues to preserve the safety of citizens throughout the State. When immigration laws are not enforced, Texas citizens are harmed. The numerous local governments and officials who have sued Texas alleging that SB 4 is unconstitutional and thereby unenforceable, presents just the sort of injurious uncertainty that declaratory judgments are aimed at remedying. Like Plaintiffs, localities that want to enforce
4 At the June 29, 2017 hearing, TOPEF acknowledged an active and ongoing controversy with Texas:
THE COURT: Are you in the San Antonio suit? MS. MARZIANI: Yes. THE COURT: Do you want out of that? MS. MARZIANI: No.
Hr’g Tr. 27, June 29, 2017.
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their policies and practices against federal immigration cooperation on September 1st, Texas likewise has the right to defend assaults claiming its general laws are unconstitutional and unenforceable. Cf. True the Vote v. Hosemann, 43 F. Supp. 3d 693, 742 (S.D. Miss. 2014) (noting that “[t]o the extent Mississippi suffers harm from the inability to enforce its laws, the Mississippi public—and registered voters in particular—would suffer harm as well.”). This is not a hypothetical dispute; it is public, alive, and active.5
For all of these reasons, Texas has standing to assert its declaratory judgment action against all defendants, including El Paso County, Sheriff Wiles and TOPEF. III. TOPEF’s Retaliation Argument Is Meritless.
Texas did not retaliate against TOPEF by including it as a defendant after TOPEF filed a related lawsuit against Texas. And TOPEF cannot demonstrate, nor do they attempt to do so, the elements necessary to establish a retaliation claim. See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). The addition of TOPEF as a defendant in this case is not “retaliatory action.”
While access to courts is constitutionally protected, TOPEF cannot meet the second or third prongs of the retaliation test. Retaliation claims are concerned with government conduct intended to and likely to “chill” the exercise of constitutional rights. For example, in Keenan, constables and officers detained the plaintiff, a reserve deputy constable, at gunpoint “for an inordinate period of time,” charged him
5 Notably, the relief that Texas seeks to address its injuries—a declaration that SB 4 is constitutional, First Am. Compl., Prayer for Relief—is appropriate and of a similar nature to what El Paso County is requesting in the San Antonio litigation. See City of El Cenizo v. Texas, No. 5:17-cv-404-OLG, Consolidated Plaintiffs El Paso County, Et Al.’s First Amended Complaint for Declaratory Judgment and Injunctive Relief, ECF No. 51 ¶¶ 177, 181 (W.D. Tex., San Antonio Division) (“In the alternative, Plaintiffs El Paso County and Sheriff Wiles’ adherence to the County’s adopted policies in relation to federal immigration enforcement comply with SB 4. . . . Absent declaratory relief, Plaintiffs will continue to be harmed.”); see also Texas Association of Hispanic County Judges and County Commissioners’ Complaint in Intervention, ECF No. 142 ¶¶ 50, 54 (asserting the same declaratory relief).
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with a crime “under suspicious circumstances,” forcing him to “spend thousands of dollars to exonerate himself at trial,” and refused to return his gun and concealed carry license, all because he criticized the Constable. Keenan, 290 F.2d at 249.
Here, Texas added TOPEF as a defendant to a preexisting declaratory judgment action—concerning only the constitutionality of SB 4—after TOPEF filed a related lawsuit against Texas. No facts indicate TOPEF is chilled by Texas’s lawsuit. In fact, its continued participation in the San Antonio case indicates the Texas lawsuit has had little effect on it whatsoever.
Moreover, Texas filed this action for a proper purpose, namely to “resolve a dispute without waiting to be sued or until the statute of limitations expires.” Sherwin-Williams Co., 343 F.3d at 397. TOPEF was properly added as a defendant in this action “to resolve issues pertinent to the suits in ‘one, rather than multiple, forums.’” Id. at 399 (quoting Travelers, 996 F.2d at 777). IV. The Court Should Exercise Its Discretion to Hear This Case.
Finally, El Cenizo Defendants assert that the Court should decline to exercise its discretionary jurisdiction to hear this matter under the Declaratory Judgment Act. ECF No. 66 at 4–7. But in “cases raising issues of federal law or cases in which there are no parallel state proceedings,” Wilton v. Seven Falls Co., 515 U.S. 277, 290 (1995), the Fifth Circuit has suggested that a court’s discretion to decline jurisdiction is more limited. See Sherwin-Williams Co., 343 F.3d at 394 (noting that the “absence of any pending related state litigation strengthens the argument against dismissal of the federal declaratory judgment action.”).
Here, of course, there is no pending state court action, and the claims at issue invoke important issues of federal constitutional law. Moreover, the unique context in which this case arose demonstrates why the Court should exercise its discretion to hear the case. Texas has brought a proper suit, in the proper venue, and was the first party to do so. Thus, declining to exercise jurisdiction would lend unwarranted
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deference to a deliberate circumvention of the Fifth Circuit’s longstanding first-to-file rule, which posits that “when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the issues raised by the cases substantially overlap.” Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir. 1999); see also Superior Sav. Ass’n v. Bank of Dall., 705 F. Supp. 326, 330 (N.D. Tex. 1989) (“The rule of thumb in the Fifth Circuit is that the court initially seized of a controversy should be the one to decide whether it will try the case.”). Under the first-to-file rule, it is the Austin litigation, not the San Antonio cases, through which the parties should resolve SB 4’s constitutionality.
Of even greater concern is that venue as to Defendants is inappropriate in the San Antonio Division, and only appropriate here. Venue lies where “any defendant resides,” or “a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(1–2). But no defendant in the San Antonio cases resides in the San Antonio Division and the events giving rise to that action, and this one, did not occur within the division. Moreover, the “general rule in suits against public officials is that a defendant’s residence for venue purpose[s] is the district where he performs his official duties.” Fla. Nursing Home Ass’n v. Page, 616 F.2d 1355, 1360 (5th Cir. 1980), rev’d on other grounds, Fla. Dep’t of Health & Rehab. Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147 (1981). Thus, a suit against Texas officials should have been brought in Austin. See, e.g., Procario v. Ambach, 466 F. Supp. 452, 454 (S.D.N.Y. 1979). Because of the prejudice to Texas if those cases proceed any further, and because this case is ripe for review, this Court should hear this declaratory judgment action and deny Defendants’ motions to dismiss. Cf. Venator Grp. Specialty, Inc. v. Matthew/Muniot Family, LLC., 322 F.3d 835, 842 (5th Cir. 2003) (finding that district court abused its discretion when the only reason district court offered for denying review of declaratory judgment action was erroneous conclusion that the controversy was not ripe for review).
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Case 1:17-cv-00425-SS Document 71 Filed 07/12/17 Page 11 of 12 CONCLUSION
The motions to dismiss pending before the Court should be denied.
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Case 1:17-cv-00425-SS Document 71 Filed 07/12/17 Page 12 of 12
Respectfully submitted this the 12th day of July, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/ Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 (512) 936-1414 (512) 936-0545 Fax ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that on this the 12th day of July, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system. A copy of this document will be served on each defendant.
/s/ Darren McCarty____ Darren McCarty
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Case 1:17-cv-00425-SS Document 71-1 Filed 07/12/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

TEXAS; and KEN PAXTON, in his official capacity as Texas Attorney General,

Plaintiffs,

v.

TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County; CITY OF AUSTIN, TEXAS; ORA HOUSTON, DELIA GARZA, SABINO RENTERIA, GREGORIO CASAR, ANN KITCHEN, JIMMY FLANNIGAN, LESLIE POOL, ELLEN TROXCLAIR, KATHIE TOVO, and ALISON ALTER, all in their official capacities as City Council Members of the City of Austin; STEVE ADLER, in his official capacity as Mayor of the City of Austin; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso County; CITY OF EL CENIZO, TEXAS; RAUL L. REYES, in his official capacity as Mayor of the City El Cenizo; TOM SCHMERBER, in his official capacity as Sheriff of Maverick County; MARIO A. HERNANDEZ, in his official capacity as Constable Pct. 3-1 of Maverick County; the TEXAS ORGANIZING PROJECT EDUCATION FUND; the MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND; and the LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

Civ. Action No. 1:17-cv-425-SS
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS
(ECF NOS. 60, 61, 62, 64, 65 & 66)

Defendants.

Case 1:17-cv-00425-SS Document 71-1 Filed 07/12/17 Page 2 of 2
On this day the Court considered the Defendants’ Motions to Dismiss (ECF NOS. 60, 61, 62, 64, 65 & 66). After due consideration of the law and the filings of the parties, the Court finds said motions are not meritorious.
It is therefore ORDERED that Defendants’ Motions to Dismiss are hereby DENIED.
SO ORDERED this the ____ day of _________, 2017.
__________________________________ HON. SAM SPARKS UNITED STATES DISTRICT JUDGE

 
 Case 1:17-cv-00425-SS Document 72 Filed 07/19/17 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

§

TEXAS, et al.

§

§

Plaintiffs,

§

§

v.

§

§

TRAVIS COUNTY, TEXAS;

§

SALLY HERNANDEZ, in her official

§

capacity as Sheriff of Travis County,

§

Texas; CITY OF AUSTIN, TEXAS;

§

ORA HOUSTON, DELIA GARZA,

§

SABINO RENTERIA, GREGORIO

§

CASAR, ANN KITCHEN, JIMMY

§

FLANNIGAN, LESLIE POOL,

§

ELLEN TROXCLAIR, KATHIE TOVO, §

and ALISON ALTER, all in their official §

capacities as City Council Members of

§

the City of Austin, Texas; STEVE

§

ADLER, in his official capacity as Mayor §

of the City of Austin, Texas; ELAINE

§

HART, in her official capacity as Interim

§

City Manager of the City of Austin, Texas; §

EL PASO COUNTY, TEXAS; RICHARD §

WILES, in his official capacity as Sheriff of §

El Paso County; CITY OF EL CENIZO,

§

TEXAS; RAUL L. REYES, in his official §

Capacity as Sheriff of Maverick County;

§

MARIO A. HERNANDEZ, in his official §

Capacity as Constable Pct. 3-1 of

§

Maverick County; the TEXAS

§

ORGANIZING PROJECT EDUCATION §

FUND and the LEAGUE OF UNITED

§

LATIN AMERICAN CITIZENS,

§

§

Defendants.

§

§

CIVIL ACTION NO.: AU:17-cv-00425-SS

DEFENDANT TEXAS ORGANIZING PROJECT EDUCATION FUND’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

Case 1:17-cv-00425-SS Document 72 Filed 07/19/17 Page 2 of 7
The Texas Organizing Project Education Fund (“TOPEF”) files this reply to Plaintiffs’ Response In Opposition to Defendants’ Motion To Dismiss (“State’s Response”).
I. INTRODUCTION The State’s Response offers no new support to the State’s argument that the case against Defendant TOPEF should not be dismissed. It is clear that Texas has suffered no harm from any actions or omissions by Defendant TOPEF. Texas improperly filed the instant case in an attempt to obtain an impermissible advisory opinion, deny Plaintiffs their choice in forum, and punish TOPEF in retribution for bringing suit against Plaintiffs in San Antonio.
II. ARGUMENT A. Texas Does Not Have Standing To Bring This Case
Texas attempts to argue that it does not need to meet any standing requirements to bring this lawsuit. Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss, ECF No. 71, at 6. Such a position is simply untenable. The Plaintiff in a declaratory judgment action has the burden of establishing the same three elements for Article III standing: (1) an injury in fact; (2) a sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Arnett v. Strayhorn, 515 F. Supp. 2d. 699, 703 (W.D. Tex. 2006)(Sparks, J.). Because Texas has not and cannot show Article III standing in this case, Texas also cannot meet the standing requirements for declaratory relief.
The State also alleges that it brought the instant suit against TOPEF based on the threat of litigation. ECF No. 71, at 3. But in fact, TOPEF did not threaten to sue Texas. TOPEF was added as a defendant in the case at hand in retaliation after TOPEF filed a suit for declaratory and injunctive relief in San Antonio. See Consolidated Plaintiffs El Paso County, et al.’s First Amended Complaint for Declaratory Judgment and Injunctive Relief, El Paso Cnty. et al. v.
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Case 1:17-cv-00425-SS Document 72 Filed 07/19/17 Page 3 of 7
Texas, No. 5:17-CV-00459-OLG (W.D. Tex. S.A. Div. June 19, 2017) (hereinafter “Defendants’ Amended Complaint”).
The State cites HAVEN for the proposition that it does not need to establish standing but that TOPEF must have standing. Collin Cty., Tex. v. Homeowners Ass’n for Values Essential to Neighborhoods, (HAVEN), 915 F.2d 167 (5th Cir. 1990). The case is misinterpreted by the State. The case does not allow a plaintiff to avoid the jurisdictional question of standing, which is mandated by Article III of the U.S. Constitution. See id. Rather, HAVEN concerns the question of standing and whether a plaintiff is able to anticipatorily challenge a potential complaint from a potential adversarial party. Id. These pre-enforcement declaratory relief challenges are brought before a complaint is filed, not after. See id.; Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 896 (5th Cir. 2000) (stating that there was an imminent threat of a lawsuit that was not yet filed). In HAVEN, the plaintiff, a Texas county, believed the defendant, a neighborhood association, would file a complaint against the county to stop highway construction plans because the county believed the association would challenge the environmental impact statements (EIS) for the highway project under the National Environmental Policy Act (NEPA). Id. at 168-69. The court reasoned that the county did not establish that there was an actual controversy in place. Id. at 171-72. The county failed to establish its standing because there was no imminent threat of a lawsuit against it from the neighborhood association. Id. at 171. 1
The purpose of a declaratory judgment action is to clarify the legal rights of parties. In the case at hand, Texas has shown no substantial and continuing controversy between TOPEF and Texas. Schedeler v. Wells Fargo, N.A., No. 13-CA-875-SS, 2013 WL 12133969, at *3 (W.D.
1 Even if there is standing, the filing of TOPEF’s lawsuit before being added as a defendant to Texas’ lawsuit should render any need for declaratory judgment sought by Texas moot. The controversy that Texas alleges only occurred after TOPEF filed a lawsuit against Texas, and as a result Texas sued TOPEF. Texas argues that it seeks declaratory judgment to avoid litigation, but only added TOPEF as a defendant after TOPEF commenced litigation. See United States Parole Commn. v. Geraghty, 445 U.S. 388, 397 (1980) (“[T]he requisite personal interest that must exist at the commencement of the litigation must continue throughout its existence.”)
3

Case 1:17-cv-00425-SS Document 72 Filed 07/19/17 Page 4 of 7
Tex. Dec. 20, 2013)(Sparks, J.). A declaratory action is not merely a substitute for a suit for injunctive relief. Here, TOPEF filed suit against the State of Texas in San Antonio seeking injunctive relief. See Defendants’ Amended Compl. Following TOPEF’s filing in San Antonio, Texas sued TOPEF in the instant case. The timeline clearly shows that Texas is not attempting to use the declaratory action to clarify the rights of the parties, but rather to force Plaintiffs to litigate in Defendants’ chosen forum and deny TOPEF access to the court and the remedy that TOPEF seeks in the San Antonio action.
B. Texas’s Addition of TOPEF to this Lawsuit is Retaliatory The State’s Response alleges that because TOPEF successfully filed suit in San Antonio,
Plaintiff’s addition of TOPEF as a defendant in this action was not retaliatory because TOPEF was not chilled from accessing the courts. Chilling access to the courts, however, is not the only prohibited retaliatory activity. Retaliatory litigation against a party after that party has exercised their constitutional right to seek judicial relief is also prohibited. See Harrison v. Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1428 (8th Cir. 1986).
Here, the State is attempting to punish Plaintiff TOPEF for exercising their right to seek judicial relief, as is made clear by their amended complaint.2 First Amended Complaint for Declaratory Judgment, ECF No. 23. In fact, the only substantive allegation made by the State in their Amended Complaint underscores the impermissible purpose for which they sought to bring this suit. Texas’s only substantive allegation against TOPEF is that Defendant TOPEF “sued Texas over the constitutionality of SB 4.” ECF No. 23, at 15, ¶ 112. As the Harrison Court noted, “it is not necessary that individual succumb entirely or even partially to [the] threat.” See Harrison v. Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1428 (8th Cir. 1986).
2 Critically, Texas’s Amended Complaint contains not a single allegation of injury or threatened injury against TOPEF. Although Texas alleges that “all defendants” fail to comply with federal immigration officials, TOPEF and the other organizational defendants have no obligation whatsoever to assist in federal immigration enforcement, and Texas does not argue that they do. ECF No. 23, generally.
4

Case 1:17-cv-00425-SS Document 72 Filed 07/19/17 Page 5 of 7
C. Venue is Proper in San Antonio
Further, the State again attempts to argue that Austin is the only appropriate venue for litigation regarding SB 4. ECF No. 71, at 10. This is incorrect. The State insists that San Antonio is not a proper venue because none of the Defendants reside in San Antonio and events giving rise to these events did not occur within the San Antonio division. Id. Here, TOPEF resides in San Antonio for venue purposes and its choice of forum holds due weight. See Defendants’ Amended Complaint.
Because all defendants reside in the Western District, SB 4 was enacted in the Western District, and San Antonio—where a substantial part of the events giving rise to this litigation will occur—is located within the Western District, any division in the Western District of Texas is proper for venue purposes under 28 U.S.C. § 1391(b). Federal civil cases need not be filed in a particular division of a judicial district. See In re Gibson, 423 F. App’x 385, 388 (5th Cir. 2011); 14D Charles Alan Wright et al., Federal Practice and Procedure § 3809 (4th ed. 2017).
III. CONCLUSION Because Texas lacks standing, has failed to state a claim upon which relief can be granted, and sued TOPEF as retaliation, TOPEF respectfully requests that the Court dismiss Texas’ Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dated: July 19, 2017.
Respectfully submitted,
/s/ Mimi Marziani
Mimi Marziani State Bar No. 24091906 Texas Civil Rights Project
5

Case 1:17-cv-00425-SS Document 72 Filed 07/19/17 Page 6 of 7
1405 Montopolis Drive Austin, Texas 78741 T: (512) 474-5073 mimi@texascivilrightsproject.org Efrén C. Olivares Texas Bar No. 24065844 Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, Texas 78516 T: (956) 787-8171 efren@texascivilrightsproject.org Cassandra Champion Texas Bar. No. 24082799 Texas Civil Rights Project 1405 Montopolis Drive Austin, Texas 78741 T: (512) 474-5073 champion@texascivilrightsproject.org ATTORNEYS FOR DEFENDANT TEXAS ORGANIZING PROJECT EDUCATION FUND
6

Case 1:17-cv-00425-SS Document 72 Filed 07/19/17 Page 7 of 7 CERTIFICATE OF SERVICE
I, Mimi Marziani, hereby certify that, on July 19, 2017, in compliance with the Federal Rules of Civil Procedure, I filed the foregoing document via the Court’s ECF/CM system on all parties or their attorneys of record.
/s/ Efrén C. Olivares Efrén C. Olivares
7

 
 Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS 17

9

AUSTIN DIVISION

CLEFc.

TEXAS and KEN PAXTON, in his official capacity as Texas Attorney General,
Plaintiffs,
-vs-
TRAVIS COUNTY et al., Defendants.

CAUSE NO.:
A-i 7-CA-00425-SS

fl: 1 6
COURT TEXAS

ORDER

BE IT REMEMBERED on the 29th day of June 2017, the Court held a hearing in the above-styled cause, and the parties appeared by and through counsel. Before the Court are Defendant Travis County's Motion to Dismiss First Amended Complaint [#26], Plaintiffs State of Texas and Ken Paxton (collectively, the State)' s Response [#30] in opposition, and Travis County's Reply [#33] in support; Defendant the City of Austin's Amended Motion to Dismiss [#27], the State's Response [#30] in opposition, and City of Austin's Reply [#36] in support; Defendant Texas Organizing Project Education Fund's Motion to Dismiss [#62], the State's Response [#7 1] in opposition, and Texas Organizing Project Education Fund's Reply [#72] in support; Defendant El Paso County's Motion to Dismiss [#64] and the State's Response [#71] in opposition; Defendant the City of El Cenizo's Amended Motion to Dismiss [#65] and the State's Response [#7 1] in opposition; as well as the State's Motions to Consolidate Cases [##17, 24, 35], Defendants' Response [##21, 22, 39, 40, 48] in opposition, and the State's Reply [#52] in

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 2 of 11
support.' Having reviewed the documents, the governing law, the arguments of the parties at the
hearing, and the file as a whole, the Court now enters the following opinion and orders.
Background The State filed this action seeking a declaration Senate Bill 4 (SB 4) is constitutional. On May 7, 2017, Governor Abbott signed SB 4 into law. SB 4 prohibits municipalities and their employees and officials from adopting, enforcing, or endorsing any policy that would "materially limit" local police or other officials from enforcing "immigration laws." Am. Compi. [#1] Ex. 1 (SB 4) at 48-49. Specifically, the law requires local law enforcement agencies to cooperate with federal immigration authorities; prohibits these agencies from maintaining policies barring officers from inquiring into an individual's immigration status; requires these agencies to comply with U.S. Immigration and Customs Enforcement (ICE) detainers; and in some cases, requires these agencies to transfer an individual from a Texas correctional facility to federal authorities. Id. The State explains it enacted SB 4 "to prevent localities from forming a patchwork of inconsistent policies of federal cooperation across Texas." State's Resp. [#7 1] at 7. "By ending local policies that block the federal government's ability to enforce immigration law, SB 4 aims to ensure that suspected and convicted criminals are not released back onto the streets and that the respect for the rule of law continues to preserve the safety of citizens throughout the State."
Id. Though SB 4 was signed into law on May 7, 2017, the law does not go into effect until
September 1, 2017. SB 4 at 59, 60.
1 The Court DISMISSES AS MOOT the City of Austin's Motion to Dismiss [#16] the State's original complaint, Travis County's Motion to Dismiss [#18] and Amended Motion to Dismiss [#19] the State's original complaint, and the El Cenizo's first Motion to Dismiss [#60].
2

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 3 of 11
I. Austin Proceedings This lawsuit (the Austin case) was filed on May 7, 2017, just hours SB 4 was signed. In
its complaint, the State seeks only declaratory relief that SB 4 is constitutional under both the federal and state constitutions. Compi. [#1]; Am. Compl. [#23] ¶J 322-329 (adding claim that SB 4 does not violate the Texas Constitution). The State argues it was justified in bringing this action because, "[l]eading up to the passage of SB 4, numerous local officials vowed legal fights over the legislation, claiming that it was unconstitutional for the State to regulate their varying local policies of noncooperation." State's Resp. [#3 0] at 2. According to the State, the fact that Defendants' policies remain in place today, together with the fact that Defendants have challenged the constitutionality of SB 4 in the San Antonio case, reveal Defendants "intent to violate SB 4 once it takes effect[.]" Id. at 7.
The State's original complaint named as defendants Travis County, Austin, officials from Travis County and Austin,2 and the Mexican American Legal Defense and Education Fund (MALDEF).3 On May 31, 2017, the State amended its complaint to add as defendants El Paso
County, Texas and the Sheriff of El Paso County in his official capacity (together, El Paso); the City of El Cenizo, Texas, the Mayor of El Cenizo, Texas, Maverick County, Texas, the Sheriff of Maverick County, and Constable Pct. 3-1 of Maverick County (together, El Cenizo); the Texas Organizing Project Education Fund (TOPEF); and the League of United Latin American Citizens
(LULAC).
2 Sally Hemandez was sued in her official capacity as the Sheriff of Travis County. The State also sued Austin City Council Members Ora Houston, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Jimmy Flaimigan, Leslie Pool, Ellen Troxclair, Kathie Tovo, and Alison Alter; Austin's Mayor, Steve Adler; and Austin's Interim City Manager, Elaine Hart.
The State voluntarily dismissed its claims against MALDEF on June 16, 2017. See Notice Voluntary Dismissal [#53].
3

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 4 of 11
II. San Antonio Proceedings Following SB 4's passage and the State's near contemporaneous filing of the Austin case,
three cases were filed in the San Antonio Division challenging the constitutionality of SB 4. In
the first case filed in San Antonio on May 8, 2017, El Cenizo, together with other plaintiffs, filed an action against the State, seeking a declaration that SB 4 is unconstitutional and an injunction prohibiting the State from enforcing SB 4. See City of El Cenizo v. Texas, No. 5:17-CV-404OLG (W.D. Tex. May 8, 2017). On June 6, 2017, Judge Garcia consolidated the El Cenizo case with two other cases pending in that division after finding these cases involved the same issues
of law and most of the named defendants are the same (collectively, the San Antonio case). See Id.; El Paso Cty. v. Texas, No. No. 5:17-CV-459-OLG (W.D. Tex. May 22, 2017); City of San
Antonio v. Texas, No. 5:17-CV-489-OLG (W.D. Tex. June 1, 2017). Judge Garcia subsequently
permitted several parties to intervene, including the cities of Dallas, Houston, and Austin and Travis County. The plaintiffs in the now-consolidated San Antonio case filed applications for a preliminary injunction. On June 26, 2017, Judge Garcia held a preliminary injunction hearing where the parties submitted evidence and presented arguments as to SB 4's constitutionality.
Meanwhile, Defendants in the Austin casemany of whom are the plaintiffs in the San Antonio casefiled motions to dismiss the State's claims, arguing, among other things, the State
has not alleged an injury sufficient to confer standing and the State seeks an impermissible advisory opinion. In response to these motions, the State contends its action is proper under the Declaratory Judgment Act, as the State has standing to assert these claims and the matter is ripe for judicial determination. The State also filed three motions to consolidate this case with the San Antonio case, arguing these cases involve the same legal issues and the first-to-file rule counsels
in favor of consolidating the cases in the Austin Division.
ri

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 5 of 11
These motions have been fully briefed by the parties and are now ripe for consideration. Analysis
I. Legal Standard A motion under Rule 12(b)(1) asks a court to dismiss a complaint for lack of subject
matter jurisdiction. FED. R. CIV. P. 12(b)(l). "A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass 'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks omitted). Motions to dismiss under Rule 1 2(b)( 1) challenge a court's "very power to hear the case," and the court may therefore "weigh the evidence and satisfy itself' subject matter jurisdiction exists. MDPhysicians & Assocs., Inc. v. State Bd. ofIns., 957 F.2d 178, 181 (5th Cir. 1992) (internal quotation marks omitted).
This case was brought pursuant to the Declaratory Judgment Act, which provides, "[i]n a
case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 220 1(a). The Supreme Court has held that "the phrase 'case of actual controversy' in the Act refers to the type of 'Cases' and
'Controversies' that are justiciable under Article III." Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007). For the Court to exercise jurisdiction over this case, then, it must meet the
"cases and controversies" requirement set forth under Article III of the Constitution. US. Parole
Comm 'n v. Geraghty, 445 U.S. 388, 395 (1980). To meet the standing requirement under Article III, the party invoking federal jurisdiction
must show (1) she has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 6 of 11
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000); Consol. Cos., Inc. v. Union PacfIc R.R. Co., 499 F.3d 382, 385 (5th Cir. 2007); Fla. Dep 't ofIns. v. Chase Bank of Tex. Nat'l Ass 'n, 274 F.3d 924, 929 (5th Cir. 2001) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). "Standing to seek declaratory judgment is subject to these same requirements." BroadStar Wind Sys. Grp. Ltd. Liab. Co. v. Stephens, 459 F. App'x 351, 356 (5th Cir. 2012) (citing Bennett v.
Spear, 520 U.S. 154, 162 (1997)).
The general rule is that "standing is to be determined as of the commencement of the suit." Lujan, 504 U.S. at 571-72. Though a plaintiff may later amend her complaint, post-filing
events generally cannot cure a jurisdictional defect that existed at the time the original complaint was filed. Camsofi Data Sys., Inc. v. S. Elec. Supply, Inc., 756 F.3d 327, 337 (5th Cir. 2014); see also Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 218 (5th Cir. 2012) ("Although 28 U.S.C. § 1653 and [Rule] 15(a) allow amendments to cure defective jurisdictional allegations, these rules do not permit the creation of jurisdiction when none existed at the time the original complaint was filed[.]"). II. Application
The State seeks a declaratory judgment as to the constitutionality of a statute prior to the law taking effect. Because Defendants move to dismiss this lawsuit for lack of subject matter jurisdiction, the Court does not reach the merits of the State's claim, but instead only examines

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 7 of 11
whether the claim, based on the record before the Court, can proceed.4 Because the Court finds the State lacks standing to bring this claim, the Court GRANTS Defendants' motions to dismiss.
The State asserts two primary arguments in an attempt to establish standing: first, because
Defendants have standing to challenge the constitutionality of SB 4 in the San Antonio case, the
State has standing to bring this declaratory judgment action; and second, the State has shown the existence of imminent injury sufficient to confer standing based on Defendants' alleged intent
"to follow a pattern and practice of failing to cooperate with federal immigration officials" after
the law goes into effect on September 1, 2017. Am. Compi. [#23] ¶ 239.
In support of its first argument, the State cites a Fifth Circuit case for the proposition that: Since it is the underlying cause of action of the defendant against the plaintiff that
is actually litigated in a declaratory judgment action, a party bringing a declaratory judgment action must have been a proper party had the defendant brought suit on the underlying cause of action.
State's Resp. [#71] at 6 (quoting Collin Cly., Tex. v. Homeowners Ass 'nfor Values Essential to
Neighborhoods, 915 F.2d 167, 171 (5th Cir. 1990) (HAVEN)). From this passage, the State extrapolates its position that "the proper inquiry is whether [Defendants] have standing to sue Texas," not whether the State has standing to bring this declaratory judgment action. Id.
But simply because the declaratory judgment plaintiff is the proper defendant in another suit does not mean it is exempt from Article III's standing requirements in a declaratory judgment action. While the Declaratory Judgment Act "enlarged the range of remedies available in federal courts," it "did not extend their jurisdiction." Skelly Oil v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Indeed, the Fifth Circuit has expressly held that a plaintiff in a declaratory judgment action must satisfy the standing requirements of Article III. See, e.g., BroadStar Wind
Though the Court does not reach the merits of the State's claim today, it notes that the federal government has the exclusive power to enforce immigration laws, and regardless of its intent, no state or local entity can interfere with the enforcement of these laws.
7

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 8 of 11
Sys. Grp. Ltd. Liab. Co., 459 F. App'x at 356. Thus, the State cannot sidestep these standing requirements by fashioning a new rule in the pre-enforcement declaratory judgment context where the Court simply asks whether the defendant has standing to sue the plaintiff in a different lawsuit.
The State's second standing argument likewise fails, because the State has not shown the existence of actual or imminent injury. The State alleges it has standing to sue Defendants to
ensure SB 4 is enforced once the law takes effect.5 As evidence of Defendants' impending violation of SB 4, the State cites, among other things, Travis County's written policy that advises
officers not to cooperate with federal immigration officials under certain circumstances. According to the State, this policy was issued on February 1, 2017, "well after SB 4 was
introduced in the Texas Legislature," and remains in place today. Am. Compl. [#23] ¶J 203, 206.
The State's own argument underscores its deficiencies. Because SB 4 does not take effect until September 1, 2017, it is impossible for Defendants to take any action that would violate the not-yet-effective law. The mere fact that a municipal policy was instituted before a law was
signed, or that it remains in place prior to the law taking effect, does not equate to a violation of
the law. The State argues, however, that it faces an imminent injury sufficient to confer standing
because Defendants have "no plans to change" their policies of non-cooperation with federal immigration officials once SB 4 takes effect. Id. ¶J 17, 207. In support of this position, the State cites Defendants' public statements of their intent to challenge the constitutionality of SB 4. For
Once SB 4 takes effect, the statute provides for a number of robust enforcement mechanisms, including imposing a civil penalty between $1,000 and $1,500 for the first violation and a penalty of not less than $25,000 for each additional violation (where each day constitutes a separate violation), as well as removing an elected or appointed official from office. SB 4 at 50-52. In addition, a sheriff, chief of police, or constable who fails to comply
with an immigration detainer request faces potential criminal sanctions. Id. at 58.
[s1

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 9 of 11
instance, after the law was signed and the Austin case was filed, both Austin and El Paso County
voted to sue the State over the constitutionality of SB 4, and these entities did, in fact, sue the State in the San Antonio case. Id. ¶J 211, 221. The State also cites public statements issued by
individual defendantsagain, after the law was signed and the Austin case was filedsuch as
the Sheriff of El Paso County, who allegedly said "SB 4 is pointless," and the Mayor of El Cenizo, who purportedly stated "SB 4 is 'dangerous and discriminatory' and []it 'opens up the door to racial profiling against Hispanics." Id. ¶J 220, 231.
But construing Defendants' statements that they intend to sue the State as evidence of
their intent to violate the law is untenable. Aside from raising important First Amendment concerns, it does not give rise to an imminent injury.6 The State's alleged injury turns on the
legal consequences of some act that may or may not occurthat is, Defendants' decision to
violate the law. The State has produced no evidence that at the time of filing suit, it was clear
Defendants planned to violate the law once it takes effect. Expressing public disagreement with a
law does not constitute a violation of the law, nor does articulating the desire to challenge the constitutionality of the law equate to a violation of it. The general rule is that a plaintiff must have standing at the commencement of a suit, see Lujan, 504 U.S. at 571-72, and the State has
not shown an exception to this general rule applies here. Because the State has not shown it faced an imminent injury sufficient to confer standing when it filed this declaratory judgment action, the Court lacks subject matter jurisdiction to hear this case.
The Court's decision today is driven in large part by the well-established constitutional ban on advisory opinions. This ban seeks to ensure that federal courts determine specific disputes
6 In this Order, the State's failure to establish an imminent injury is characterized as a defect in standing, but the Court recognizes this element of the standing inquiry overlaps with the ripeness doctrine, which focuses on whether a legally cognizable injury has yet to occur. Because the Court finds dismissal on standing grounds is appropriate, it does not address the ripeness issue separately.

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 10 of 11
between parties, rather than hypothetical legal questions, and in doing so, conserve judicial resources.7 As Austin points out in its reply brief, the State faces the same potential threat every
government agency at every level faces when it enacts a new lawthe threat that someone may
challenge the constitutional validity of the law. That is not a justiciable injury. To hold otherwise would be to "open a Pandora's box and invite every local government to seek a court's judicial blessing" on a law prior to it taking effect. Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 880, 884-85 (N.D. Tex. 2008). The ban on advisory opinions and the related doctrine of standing were devised to prevent just that.
Conclusion In light of the foregoing, the Court GRANTS Defendants' motions to dismiss and DISMISSES AS MOOT the State's motions to consolidate. Accordingly,
IT IS ORDERED that Defendants Travis County's Motion to Dismiss First Amended Complaint [#26], the City of Austin's Amended Motion to Dismiss [#27], Texas Organizing Project Education Fund's Motion to Dismiss [#62], El Paso's Motion to Dismiss [#64], and El Cenizo's Amended Motion to Dismiss [#65] are GRANTED;
IT IS FURTHER ORDERED that Plaintiffs Texas and Ken Paxton's Motions to Consolidate Cases [##17, 24, 35] are DISMISSED AS MOOT;
As the Supreme Court explained in Flast v. Cohen, [T]he implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions[.] . . . [T]he rule against advisory opinions implements the separation of powers prescribed by the Constitution . . . [and] also recognizes that such suits often "are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests." 392 U.S. 83, 96-97 (1968) (quoting United States v. Fruehauf 365 U.S. 146, 157 (1961)).
10

Case 1:17-cv-00425-SS Document 74 Filed 08/09/17 Page 11 of 11

IT IS FURTHER ORDERED that Defendants the City of Austin's Motion to

Dismiss [#16], Travis County's Motion to Dismiss [#18] and Amended Motion to

Dismiss [#19], and the El Cenizo's first Motion to Dismiss [#60] are DISMISSED AS

MOOT; and

IT IS FINALLY ORDERED that the above-styled cause is DISMISSED

WITHOUT PREJUDICE.

SIGNED this the

day of August 2017.

UNITED STATES DISTRICT JUDGE

11

 
 Case: 17-50763 Document: 00514279155 Page: 1 Date Filed: 12/19/2017
No. 17-50763
In the United States Court of Appeals for the Fifth Circuit
TEXAS; KEN PAXTON, in his official capacity as Texas Attorney General, Plaintiffs - Appellants v.
TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas; CITY OF AUSTIN, TEXAS; ORA
HOUSTON, in her official capacity as City Council Member of the City of Austin, Texas; DELIA GARZA, in her official capacity as City
Council Member of the City of Austin, Texas; SABINO RENTERIA, in his official capacity as City Council Member of the City of Austin, Texas; GREGORIO CASAR, in his official capacity as City Council Member of
the City of Austin, Texas; ANN KITCHEN, in her official capacity as City Council Member of the City of Austin, Texas; JIMMY FLANNIGAN, in his official capacity as City Council Member of the City of Austin, Texas; LESLIE POOL, in her official capacity as City Council Member
of the City of Austin, Texas; ELLEN TROXCLAIR, in her official capacity as City Council Member of the City of Austin, Texas; KATHIE TOVO, in her official capacity as City Council Member of the City of Austin, Texas; ALISON ALTER, in her official capacity as City Council
Member of the City of Austin, Texas; STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas;
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso County, Texas; CITY OF EL CENIZO, TEXAS; RAUL L.
REYES, in his official capacity as Mayor of El Cenizo, Texas; MAVERICK COUNTY, TEXAS; TOM SCHMERBER, in his official capacity
as Sheriff of Maverick County, Texas; MARIO A. HERNANDEZ, in his official capacity as Constable Precinct 3-1 of Maverick County, Texas; TEXAS ORGANIZING PROJECT EDUCATION FUND; LEAGUE OF UNITED
LATIN AMERICAN CITIZENS, Defendants - Appellees
On Appeal from the United States District Court for the Western District of Texas, Austin Division, No. 1:17-CV-425
BRIEF FOR PLAINTIFFS-APPELLANTS
[Counsel listed on inside cover]

Case: 17-50763 Document: 00514279155 Page: 2 Date Filed: 12/19/2017

Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697

Scott A. Keller Solicitor General John C. Sullivan Assistant Solicitor General john.sullivan@oag.texas.gov
Counsel for Plaintiffs-Appellants

Case: 17-50763 Document: 00514279155 Page: 3 Date Filed: 12/19/2017
Certificate of Interested Persons Under the fourth sentence of Fifth Circuit Rule 28.2.1, because Appellants are governmental parties, they need not furnish a certificate of interested parties.
/s/ John C. Sullivan JOHN C. SULLIVAN Counsel of Record for Plaintiffs-Appellants
i

Case: 17-50763 Document: 00514279155 Page: 4 Date Filed: 12/19/2017
Statement Regarding Oral Argument Because this case involves the interplay between multiple lawsuits—including actions producing a separate appeal in which oral argument was held on both the merits and a stay action—and because of the complexity of the standing arguments involved here, Appellants believe that oral argument may assist the Court and respectfully request oral argument.
ii

Case: 17-50763 Document: 00514279155 Page: 5 Date Filed: 12/19/2017
Table of Contents Page
Certificate of Interested Persons ..............................................................................i Statement Regarding Oral Argument ......................................................................ii Introduction............................................................................................................ 1 Statement of Jurisdiction ........................................................................................ 3 Issue Presented ....................................................................................................... 3 Statement of the Case ............................................................................................. 3
I. Statutory Background ................................................................................ 3 II. Factual Background ...................................................................................6 III. Procedural History .................................................................................. 11 Summary of the Argument.................................................................................... 14 Standard of Review ............................................................................................... 15 Argument.............................................................................................................. 16 I. The State’s Declaratory Judgment Action Satisfies Article III’s
Case Or Controversy Requirement. ......................................................... 16 A. The Declaratory Judgment Act allows courts to address
actual controversies at the behest of defendants in a putative lawsuit............................................................................................... 17 B. Impending Litigation Also Gives the State Standing Here.................26 C. Pending violations of the law were an imminent harm to the State’s interests in protecting its citizens, enforcing its laws, and having its sovereignty recognized by other government actors. ............................................................................................... 29 II. Policy Considerations Support Federal Court Jurisdiction In The Narrow Set Of Cases Presented Here. ..................................................... 37 Conclusion ............................................................................................................40 Certificate of Service............................................................................................. 41 Certificate of Compliance ..................................................................................... 41
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Table of Authorities

Page(s)

Cases

Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227 (1937)............................................................................... 16, 17, 25
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592 (1982) .........................................................................31, 32, 33, 36
Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731 (Fed. Cir. 1988)........................................................................... 19
Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936)............................................................................................2
Associated Indem. Corp. v. Fairchild Indus., Inc., 961 F.2d 32 (2d. Cir. 1992)......................................................................... 26, 27
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) .........................................................................................28
BroadStar Wind Sys. Grp. Ltd. Liab. Co. v. Stephens, 459 F. App’x 351 (5th Cir. 2012) (per curiam) ...................................... 12, 17, 20
Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662 (5th Cir. 1967)............................................................................. 18
Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599 (5th Cir. 1999) ............................................................................. 39
Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993)............................................................................ 17, 18, 19, 23
Castillo v. Cameron Cty., Tex., 238 F.3d 339 (5th Cir. 2001)....................................................................... 32, 36
City of El Cenizo v. State, No. SA-17-CV-404-OLG, 2017 WL 3763098 (W.D. Tex. Aug. 30, 2017)..................................................................................................... 13, 25, 38
City of El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186 (5th Cir. Sept. 25, 2017) (per curiam) ................................................................................................. 13, 30, 32

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Case: 17-50763 Document: 00514279155 Page: 7 Date Filed: 12/19/2017
City of Galveston v. State, 217 S.W.3d 466 (Tex. 2007)....................................................................... 33, 36
Cmty. Commc’ns Co. v. City of Boulder, Colo., 455 U.S. 40 (1982) ........................................................................................... 33
Collin Cty., Tex. v. Homeowners Ass’n for Values Essential to Neighborhoods, 915 F.2d 167 (5th Cir. 1990) ..................................................................18, 25, 26
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ......................................................................................... 37
Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015)............................................................................. 15
El Paso Bldg. & Constr. Trades Council v. El Paso Chapter Associated Gen. Contractors of Am., 376 F.2d 797 (5th Cir. 1967) ............................................................................. 26
Epperson v. Arkansas, 393 U.S. 97 (1968)............................................................................................28
Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. For S. Cal., 463 U.S. 1 (1983)........................................................................................passim
Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567 (2004) ......................................................................................... 15
Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006 (5th Cir. 1998) ........................................................................... 15
Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908) .............................................................................. 20, 21, 24
Lower Colo. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916 (5th Cir. 2017) ............................................................................. 27
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)..................................................................................... 16, 17
Maryland v. King, 567 U.S. 1301 (2012) ........................................................................................ 29
Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270 (1941) .....................................................................................16, 18
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Case: 17-50763 Document: 00514279155 Page: 8 Date Filed: 12/19/2017
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007).............................................................................. 16, 28, 29
Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599 (5th Cir. 1983)............................................................................. 15
Mollan v. Torrance, 22 U.S. (9 Wheat.) 537 (1824).......................................................................... 15
NUCOR Corp. v. Aceros Y Maquilas de Occidente, 28 F.3d 572 (7th Cir. 1994)...............................................................................26
Orix Credit All., Inc. v. Wolfe, 212 F.3d 891 (5th Cir. 2000) ................................................................ 26, 27, 28
Payne v. Massey, 196 S.W.2d 493 (Tex. 1946) ............................................................................. 33
Pennsylvania v. West Virginia, 262 U.S. 553 (1923)..........................................................................................28
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013)............................................................................. 31
Rowan Cos. v. Griffin, 876 F.2d 26 (5th Cir. 1989) ......................................................................... 15, 18
Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383 (5th Cir. 2003) ...................................................................... 37, 38
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950)....................................................................................passim
St. Paul Ins. Co. v. Trejo, 39 F.3d 585 (5th Cir. 1994)............................................................................... 37
Steffel v. Thompson, 415 U.S. 452 (1974)..........................................................................................22
Superior Sav. Ass’n v. Bank of Dall., 705 F. Supp. 326 (N.D. Tex. 1989) (mem. op.) ................................................ 39
Surrick v. Killion, 449 F.3d 520 (3d Cir. 2006) ............................................................................. 32
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) ................................................................................ 16, 28
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Case: 17-50763 Document: 00514279155 Page: 9 Date Filed: 12/19/2017
Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393 (5th Cir. 1999) ............................................................................. 31
Texas v. United States, 805 F.3d 653 (5th Cir. 2015)............................................................................. 31
Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527 (Tex. 2016) ............................................................................. 34
Travelers Ins. Co. v. La. Farm Bureau Fed’n, Inc., 996 F.2d 774 (5th Cir. 1993)....................................................................... 37, 38
Tyra v. City of Houston, 822 S.W.2d 626 (Tex. 1991)............................................................................. 34
United States v. Fruehauf, 365 U.S. 146 (1961) ............................................................................................2
Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 880 (N.D. Tex. 2008) (mem. op.)........................................... 12
Wilton v. Seven Falls Co., 515 U.S. 277 (1995) .......................................................................................... 38
Constitutional Provisions and Statutes U.S. Const. art. III ..........................................................................................passim U.S. Const. amend. I........................................................................................11, 22 U.S. Const. amend. IV .......................................................................................... 11 U.S. Const. amend. XIV ....................................................................................... 11 Tex. Const. art. XI, § 5 .................................................................................... 33-34 28 U.S.C.
§ 1291 ................................................................................................................ 3 § 1295(a)..........................................................................................................22 § 2201(a) (Declaratory Judgment Act).......................................................passim Tex. Code Crim. Proc. art. 2.251..................................................................... 4, 5, 6
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Tex. Gov’t Code § 402.0241(b)(2)................................................................................................6 § 752.053 (a)(1) .................................................................................................. 5 § 752.053 (a)(2) ................................................................................................. 5 § 752.053(a)(3)................................................................................................... 5 § 752.053(a)-(b) .................................................................................................6 § 752.053 (b)(1)-(b)(4) ....................................................................................... 5 § 752.055(a)-(b) .................................................................................................6 § 752.056(a).......................................................................................................6 § 752.0565..........................................................................................................6 § 772.0073 .........................................................................................................6
Act of May 3, 2017, 85th Leg., R.S., ch. 4, Tex. S.B. 4, 2017 Tex. Gen. Laws 7 (Senate Bill 4).................................................................................passim
Tex. Pen. Code § 39.07(a)-(c).................................................................................6
Other Authorities
Calily Bien and Alyssa Goard, Austin Leaders Lay Out Their Claim That Sanctuary City Law Is Unconstitutional, Austin KXAN News (June 19, 2017 at 5:00 PM), http://kxan.com/2017/06/19/austinleaders-lay-out-their-claim-that-sanctuary-city-law-isunconstitutional/ ...............................................................................................8
City of El Cenizo, Safe Haven Ordinance, Ordinance Number 1999-8-3(b)................................................................................................... 9, 31
Casey Claiborne, Travis Co. Commissioners Discuss Hernandez ICE Policy, FOX 7 (Jan. 24 2017, 06:20 PM), http://www.fox7austin.com/news/local-news/231502450-story ....................... 7
Department of Homeland Sec., Q&A: U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report (DDOR), March 20, 2017, https://www.dhs.gov/news/2017/03/20/qa-usimmigration-and-customers-enforcement-declined-detaineroutcome-report .................................................................................................. 5
Exec. Order No. 13,768, § 1, 82 Fed. Reg. 8799 (Jan. 25, 2017) ............................... 1
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Hearing on S.B. 4 Before the S. Comm. on State Affairs, 85th Leg., R.S. (2017) .........................................................................................................4
ICE, Enforcement and Removal Operations: Weekly Declined Detainer Outcome Report For Recorded Declined Detainers Jan. 28—Feb. 3, 2017 at 10, https://www.ice.gov/doclib/ddor/ddor2017_0128to02-03.pdf ....................................................................................................4
In Pre-emptive Attack, Texas Files Suit Against Austin Over “Sanctuary Cities,” The Austin Chronicle (May 8, 2017)................................................... 35
Philip Jankowski, Sheriff Will Enforce Immigration Detentions After SB 4 Court Ruling, Austin American Statesman (Sept. 25, 2017), http://www.mystatesman.com/news/crime--law/sheriff-willenforce-immigration-detentions-after-court-ruling/AjUnEtr3aKxr 6DoGmf7YdL .................................................................................................. 30
18 Eugene McQuillin, The Law of Municipal Corporations § 53:5:2 (3d ed., rev., 2013) ........................................................................................... 33
Stef Manisero, Travis County Sheriff’s Office to Honor ICE Detainer Requests After Court Ruling, Spectrum News Austin (Sept. 26, 2017 at 8:02 AM), http://spectrumlocalnews.com/tx/austin/news/2017/09/26/travi s-county-sheriff-s-office-to-honor-ice-detainer-requests-aftercourt-ruling...................................................................................................... 11
Sanctuary Cities: A Threat to Public Safety, Hearing Before the Subcomm. on Immigration and Border Sec. of the H. Comm. on the Judiciary, 114th Cong., 1st Sess. (2015), https://perma.cc/847D5E4U ................................................................................................................. 1
Travis County Sherriff’s Office, ICE Policy, https://www.youtube.com/watch?v=7i0sVnW_h_w ........................................ 7
Mary Tuma, In Pre-emptive Attack, Texas Files Suit Against Austin Over “Sanctuary Cities,” The Austin Chronicle (May 8, 2017, at 4:20 PM)........................................................................................................ 8-9
10A Charles A. Wright, et al., Federal Practice and Procedure § 2767 (2d ed. 1983) ....................................................................................................22
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10B Charles A. Wright, et al., Federal Practice & Procedure § 2757 (4th ed. 1984)...................................................................................................26
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Introduction Sanctuary city policies have risen to the forefront of the nation’s conscience over the past few years. At the national level, attention to these policies resulted in a congressional hearing on their threat to public safety. Sanctuary Cities: A Threat to Public Safety, Hearing Before the Subcomm. on Immigration and Border Sec. of the H. Comm. on the Judiciary, 114th Cong., 1st Sess. (2015), https://perma.cc/847D5E4U. That was followed by an executive order in January 2017 declaring: “Sanctuary jurisdictions across the United States . . . have caused immeasurable harm to the American people and to the very fabric of our Republic.” Executive Order 13,768, § 1, 82 Fed. Reg. 8799, 8799 (Jan. 25, 2017). Texas, concerned for the safety of its citizenry, also looked to address the issue, and passed Senate Bill 4 (SB4) to prohibit individual localities within the State from enacting or enforcing policies to be a sanctuary for illegal immigrants. Prior to passage of the law, the defendants here signaled both their intention to challenge the law once it was enacted and to disregard its legal mandates once it went into effect. The localities, and their leadership, believe that cities and counties have the authority to follow their preferred policy directives concerning immigration enforcement, notwithstanding SB4’s contrary directives, and planned to continue acting as sanctuary cities. Given defendants’ direct challenge to the State’s sovereignty as expressed in SB4 and given defendants’ threat of imminent suit, Texas filed suit under the Declaratory Judgment Act (DJA or the Act) to affirm the constitutionality of SB4. The next day, multiple lawsuits against the State were filed in the San Antonio Division of the Western District of Texas.

Case: 17-50763 Document: 00514279155 Page: 14 Date Filed: 12/19/2017
This appeal is from the dismissal of the State’s Austin Division lawsuit. The district court dismissed the suit based upon finding a lack of standing, a decision “driven in large part” by the court’s belief that to find otherwise would be to issue an advisory opinion. ROA.643. The ban on advisory opinions prevents courts from addressing hypothetical fact patterns. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 325 (1936) (noting that declaratory judgments are limited “to ‘cases of actual controversy,’ a phrase which must be taken to connote a controversy of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts.”). The problem with addressing such hypothetical fact patterns is the lack of parties sufficiently motivated by adverse interests in an actual controversy; the resulting lack of adversarial testing may mean that issues “are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests.” United States v. Fruehauf, 365 U.S. 146, 157 (1961).
Those concerns are far removed from the facts of this case. Here, defendants’ policies, statements, and threats were and are concrete. The State is not seeking an advisory opinion on a law. Nor is the State trying to avoid adversarial testing of the issues by selecting sham parties. Instead Texas sued exactly those parties who were threatening suit and non-compliance, and whose actions presented an imminent threat to State sovereignty (all confirmed by the fact that other localities, later joined by the defendants here, sued Texas the very next day after this suit was filed).
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The DJA does not require a potential defendant to sit by, waiting for a known potential plaintiff to carry out a mature, substantial threat of litigation. It allows the potential defendant to sue in federal court using the potential plaintiff’s cause of action. Furthermore, under this Court’s precedents, the State has multiple avenues of meeting its Article III burden. These include pointing to the now-pending litigation that the State was facing when it brought its DJA action, to harms to the State’s sovereign interests from defendants’ position that they need not comply with the law, and to harms to the safety and welfare of the State’s citizens. Texas had standing to bring its DJA action, and the order dismissing that action should be reversed.
Statement of Jurisdiction This Court has jurisdiction under 28 U.S.C. § 1291.
Issue Presented Whether the State of Texas had standing to pursue relief under the Declaratory Judgment Act based on the threat of imminent litigation by localities within the State that have policies conflicting with a State law and that will not change them.
Statement of the Case I. Statutory Background
In light of nationwide events, Texas looked at the problem of sanctuary cities within its borders. One notable concern for the State was the Travis County Sheriff’s policy, which picked the crimes that Sheriff Sally Hernandez deemed serious enough to require officers to comply with ICE-detainer requests. Exhibit in Support
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of Complaint in Intervention of Travis County, Travis County Judge Sarah Eckhardt, and Travis County Sheriff Sally Hernandez, City of El Cenizo v. State, No. 5:17-cv-00404, (W.D. Tex. June 20, 2017), ECF No. 78.1 (“Ex. 1, City of El Cenizo, ECF No. 78.1”); ICE, Enforcement and Removal Operations: Weekly Declined Detainer Outcome Report For Recorded Declined Detainers Jan. 28—Feb. 3, 2017 at 10, https://www.ice.gov/doclib/ddor/ddor2017_01-28to02-03.pdf (last visited Dec. 18, 2017) (“Detainer Outcome Report”). Texas lawmakers disagreed with her stance: “[The Travis County Sheriff] has labeled three offenses that she is willing to detain people for [at ICE’s request]. Notably, what is not in those is rape, child pedophilia[, and] other offenses that are just as heinous and just as personal.” Enforcement by Certain Local Government Entities and Campus Police Departments of State and Federal Laws Governing Immigration: Hearing on S.B. 4 Before the S. Comm. on State Affairs, 85th Leg., R.S., at 01:29:15-:30 (Feb. 2, 2017) (statement of Sen. Charles Perry).
To resolve the issue, the Texas Legislature enacted Senate Bill 4 (SB4), prohibiting sanctuary-city policies throughout Texas. Act of May 3, 2017, 85th Leg., R.S., ch. 4, 2017 Tex. Gen. Laws 7, reproduced at ROA.292-307 (signed into law on May 7, 2017). SB4 has two main components: (1) its ICE-detainer provisions, and (2) its enforcement-cooperation provisions.
SB4 authorizes and generally requires Texas law-enforcement agencies to comply with federal ICE-detainer requests, unless the subject of the request provides proof of their lawful presence in the United States. Tex. Code Crim. Proc. art. 2.251(a)-(b). An ICE detainer is a formal request sent by the U.S. Immigration and
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Customs Enforcement agency (ICE) to other law enforcement groups (such as local police) giving notice that ICE has probable cause to believe that a specific individual, already under arrest, is removable from the United States, and that ICE intends to assume custody of that individual. Department of Homeland Security, Q&A: U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report (DDOR), March 20, 2017, https://www.dhs.gov/news/2017/03/20/qa-us-immigration-and-customers-enforcement-declined-detainer-outcome-report. The detainer requests that the law enforcement agency notify ICE as early as practicable before the removable alien is released from criminal custody and to briefly maintain custody for up to 48 hours to allow the government to assume custody for removal purposes. Id. SB4 separately prohibits intentional violations of the article 2.251 duty to comply with ICE-detainer requests. Tex. Gov’t Code § 752.053(a)(3).
SB4 separately directs Texas entities and law-enforcement agencies not to prohibit or materially limit their officers from cooperating with federal officials in the enforcement of immigration law. Subsections (a)(1) and (a)(2) of Government Code § 752.053 establish a general ban on policies and practices that prohibit or materially limit the enforcement of immigration laws. Subsections (b)(1) through (b)(4) then provide four concrete examples of actions that a local entity may not prohibit or materially limit, including: inquiring into the immigration status of a person under a lawful detention or under arrest; exchanging information related to the immigration status of any person under lawful detention or arrest with other local, state, or federal entities; assisting or cooperating with a federal immigration officer as reasonable or
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necessary, including providing enforcement assistance; and permitting a federal immigration officer to enter and conduct immigration enforcement activities at a jail. Id. § 752.053(a)-(b).
SB4 is enforced through consequences for agencies and officials who disregard their state-law duties. One potential consequence is an injunction and monetary penalty against a noncompliant entity. Id. §§ 752.055(a)-(b), 752.056(a). Another potential consequence is removal from elective or appointive office of a political subdivision of the State. Id. § 752.0565. Further, certain officials’ failure to comply with SB4’s ICE-detainer provision is a misdemeanor offense. Tex. Penal Code § 39.07(a)-(c). Conversely, local entities are entitled to defense and indemnification by the State for any claim arising out of their good-faith compliance with an ICEdetainer request as required by article 2.251, Tex. Gov’t Code § 402.0241(b)(2), and SB4 creates a grant program for local law-enforcement entities to offset costs related to ICE-detainer compliance, id. § 772.0073. II. Factual Background
Both before and after SB4 was passed, defendants maintained policies at variance with those set out in SB4, ROA.250-51, evinced an intent not to comply with SB4 after its enactment, ROA.254-62, threatened litigation to forestall enforcement of SB4, ROA.256, 380, 642-43, and claimed sovereign authority to defy the Texas legislature, ROA.274-80.
a. On February 1, 2017, after SB4 was introduced in the Texas Legislature, Defendant Sally Hernandez issued a revised, written policy concerning Travis County’s non-cooperation with federal immigration authorities. ROA.275; Ex. 1,
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City of El Cenizo, ECF No. 78.1. Under the policy, Travis County would not cooperate with federal immigration officials and their lawful activities, except in limited circumstances determined solely by the Travis County and its sheriff. ROA.275; Detainer Outcome Report at 10.
Defendant Hernandez described the County’s policy in a publicly available video statement: “The Travis County Sheriff’s Office will not ‘conduct or initiate any immigration status investigation’ into those in custody. The Travis County Sheriff’s Office prohibits the use of county resources to communicate with ICE about an ‘inmate’s release date, incarceration status, or court dates, unless ICE presents a judicial warrant or court order.’ Absent such a warrant or order, ICE will not be allowed to conduct ‘civil immigration status investigations at the jail or [Travis County Sheriff’s Office].’ Furthermore, ‘no [Travis County Sheriff’s Office] personnel in the jail, on patrol, or elsewhere may inquire about a person’s immigration status.’” ROA.275; Travis County Sherriff’s Office, ICE Policy, https://www.youtube.com/watch?v=7i0sVnW_h_w (last visited December 18, 2017) (“ICE Policy Video”).
b. Travis County Judge Sarah Eckhardt also made a public statement in support of Travis County’s policy and practice, including saying that she “fully support[s]” Sherriff Hernandez’ policy of refusing ICE detainer requests unless accompanied by a warrant. ROA.275-76; Casey Claiborne, Travis Co. Commissioners Discuss Hernandez ICE Policy, FOX 7 (Jan. 24 2017, 06:20 PM), http://www.fox7austin.com/news/local-news/231502450-story.
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c. Defendant Travis County’s failure to cooperate with federal immigration officials is pervasive. ROA.274-76. According to a report by the U.S. Department of Homeland Security, of 206 detainer requests denied between January 28 and February 3, 2017, Travis County declined 142 requests to hold unauthorized immigrants, or about 69%. ROA.276; Detainer Outcome Report at 8-20.
d. Prior to SB4’s passage, Defendants City of Austin, Adler, and Hart, the City Council Defendants, and other city officials publicly endorsed and engaged in patterns and practices of ignoring ICE detainer requests and not cooperating with federal immigration officials. ROA.276. After SB4 became law, Austin’s Mayor, Steve Adler, publicly vowed to continue to pursue policies contrary to SB4, just before joining a vote of the Austin City Council resolving to pursue litigation against SB4, publicly acknowledging that “we’re here today representing a policy contrary to Senate Bill 4.” Calily Bien and Alyssa Goard, Austin Leaders Lay Out Their Claim That Sanctuary City Law Is Unconstitutional, Austin KXAN News (June 19, 2017 at 5:00 PM), http://kxan.com/2017/06/19/austin-leaders-lay-out-their-claim-thatsanctuary-city-law-is-unconstitutional/. Austin City Council Member Greg Casar responded to SB4 and this lawsuit by saying that “[i]nstead of complying with the Governor’s mandates, we will double down on our pro-immigrant policies. Instead of being silenced by the Attorney General’s threats, we will rise up and speak truth to power. The fight against Senate Bill 4 is just beginning.” Mary Tuma, In Preemptive Attack, Texas Files Suit Against Austin Over “Sanctuary Cities,” The Austin Chronicle (May 8, 2017, at 4:20 PM), https://www.austinchroni-
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cle.com/daily/news/2017-05-08/in-pre-emptive-attack-texas-files-suit-against-austin-over-sanctuary-cities/. These statements implicitly acknowledged that the city had policies which conflicted with SB4, and intended to maintain them in defiance of SB4. See ROA.276-77.
e. Maverick County, the City of El Cenizo, and their officials specifically admit to policies which prohibit local officials and law enforcement from gathering information about an individual’s immigration status or cooperating with ICE detainer requests. Complaint for Declaratory Judgment and Injunctive Relief at 5, City of El Cenizo v. State, No. 5:17-cv-00404 (W.D. Tex. May 8, 2017), ECF No. 1 (“El Cenizo Complaint, City of El Cenizo, ECF No. 1”). The City of El Cenizo even has a city ordinance barring city employees from requesting or exchanging information concerning the immigration status of any city resident, and prohibiting any assistance with state or federal entities. Exhibit 2 in Support of Complaint for Declaratory Judgment and Injunctive Relief, City of El Cenizo v. State, No. 5:17-cv-00404 (W.D. Tex. May 8, 2017), ECF No. 1.2 (“City of El Cenizo, Safe Haven Ordinance, Ordinance Number 1999-8-3(b)”).
f. Not only do these political subdivisions maintain policies that violate state and federal law, but Maverick County, the City of El Cenizo, and their officials specifically claim “sovereign authority to set and follow their own laws” and “autonomy” to “control the exercise of its own police powers,” even in defiance of state law. El Cenizo Complaint at 8, City of El Cenizo, ECF No. 1. They have further asserted that the State has no authority to “wrest this autonomy from local governments.” Id. Furthermore, the City of Austin has also claimed sovereign authority to
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ignore law passed by the State sovereign. City of Austin’s Complaint in Intervention at 17, City of El Cenizo v. State, No. 5:17-cv-00404, (W.D. Tex. June 12, 2017), ECF No. 37 (“Austin Complaint, City of El Cenizo, ECF No. 37”) (“[T]o the extent that SB4 seeks to regulate the manner in which the City provides for the public health and safety of all of its residents and visitors, including foreign nationals, the law is unconstitutional.”).
g. Likewise, El Paso County finds it “insulting” that the State “erode[s]” the “sovereignty of local communities” through SB4. Consolidated Plaintiffs El Paso County, et al.’s First Amended Complaint for Declaratory Judgment and Injunctive Relief at 2, City of El Cenizo v. State, No. 5:17-cv-00404, (W.D. Tex. June 19, 2017), ECF No. 51 (“El Paso Complaint, City of El Cenizo, ECF No. 51”). Because it disagrees with the State’s sovereign law and finds it “insulting,” El Paso has vowed to maintain its course of conduct in violation of state law, saying that, rather than comply with SB4, “El Paso will protect its heritage, identity and adherence to constitutional values such as equality and justice—and will do so with everything that it has.” Id. at 2-3. El Paso County further claims that its sheriff’s office has “discretion to make and enforce rules, regulations, and policy regarding his officers’ interactions with federal immigration officials,” even if it conflicts with state law. Id. at 31. El Paso County also claims that it has a right, purportedly grounded in the state constitution, to violate state laws which limit the “broad discretion” the county claims it is entitled to with regard to how to “provide county government services to all its residents.” Id. at 30.
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h. As of the filing of this suit, the sanctuary city policy of Sheriff Hernandez and Travis County remained in place. ROA.276. After this Court’s ruling on the stay motion in El Cenizo, Travis County agreed to honor ICE detainer requests. Stef Manisero, Travis County Sheriff's Office to Honor ICE Detainer Requests After Court Ruling, Spectrum News Austin (Sept. 26, 2017 at 8:02 AM), http://spectrumlocalnews.com/tx/austin/news/2017/09/26/travis-county-sheriff-s-office-tohonor-ice-detainer-requests-after-court-ruling. It is unclear to what extent the defendants’ other policies remain in place. III. Procedural History
After the Governor signed Senate Bill 4 into law, Texas filed the present suit on May 7, 2017, seeking declaratory relief that defendants’ bases for their threatened challenges to the law are without merit. ROA.21; ROA.637. The State sought declaratory relief on claims arising under the Fourth Amendment, ROA.280, the Fourteenth Amendment (Equal Protection and Due Process), ROA.282-83, preemption doctrine, ROA.284, the First Amendment, ROA.286, and separation-of-powers doctrine under the Texas Constitution, ROA.287.
Defendants filed motions to dismiss, arguing primarily that the State had not alleged an injury sufficient to confer standing and that the suit sought an impermissible advisory opinion. ROA.638. In response, the State advanced two primary arguments: (1) if standing is appropriate for the potential coercive plaintiff (the cities), it is also appropriate for the declaratory plaintiff (the State); and (2) the State is harmed by threatened (and now filed) imminent lawsuits and promises of violations of SB4 by the cities. ROA.641.
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The district court granted the motions to dismiss. ROA.644. First, the court held that “simply because the declaratory judgment plaintiff is the proper defendant in another suit does not mean it is exempt from Article III’s standing requirements in a declaratory judgment action.” ROA.641. The district court pointed to the Supreme Court’s direction in Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950), that “[w]hile the Declaratory Judgment Act ‘enlarged the range of remedies available in federal courts,’ it ‘did not extend their jurisdiction.’” ROA.641 (quoting Skelly Oil, 339 U.S. at 671). The district court also relied on this Court’s statement that “a plaintiff in a declaratory judgment action must satisfy the standing requirements of Article III.” ROA.641-42 (citing BroadStar Wind Sys. Grp. Ltd. Liab. Co. v. Stephens, 459 F. App’x 351, 356 (5th Cir. 2012) (per curiam)).
The district court went on to reject the argument that the State had an “actual or imminent injury.” ROA.642. The court found that “[b]ecause SB4 does not take effect until September 1, 2017, it is impossible for Defendants to take any action that would violate the not-yet-effective law.” ROA.642. Believing that the “Defendants’ statements that they intend[ed] to sue the State” was not “evidence of their intent to violate the law,” the district court held that the State had “not shown it faced an imminent injury sufficient to confer standing.” ROA.643. At base, the district court believed that it was avoiding “the well-established constitutional ban on advisory opinions” and that holding otherwise would “‘open a Pandora’s box and invite every local government to seek a court’s judicial blessing’ on a law prior to it taking effect.” ROA.643-44 (quoting Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 880, 884-85 (N.D. Tex. 2008) (mem. op.)).
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The day after this suit was filed, the City of El Cenizo—along with other localities—sued Texas and its officials in the San Antonio Division of the Western District of Texas. ROA.638. The plaintiffs there claim that SB4 infringes on constitutional protections and impermissibly treads on powers exclusively reserved to the federal government. First Amended Complaint for Declaratory and Injunctive Relief at 1114, City of El Cenizo v. State, No. 5:17-cv-00404 (W.D. Tex. May 18, 2017), ECF No. 4. The City of San Antonio and El Paso County also filed separate lawsuits, joined by other localities, in the same court, alleging claims similar to El Cenizo’s lawsuit. Austin Complaint at 12-16, City of El Cenizo, ECF No. 37; El Paso Complaint at 2332, City of El Cenizo, ECF No. 51; Complaint in Intervention of Travis County, Travis County Judge Sarah Eckhardt, and Travis County Sheriff Sally Hernandez at 11-16, City of El Cenizo v. State, No. 5:17-cv-00404, (W.D. Tex. June 20, 2017), ECF No. 78.
Those cases were consolidated before Judge Garcia in the San Antonio Division. ROA.638. The Cities of Austin, Houston, and Dallas, Travis County, and other local officials and organizations later moved to intervene in those consolidated cases. Two days before SB4’s September 1, 2017 effective date, the district court entered a preliminary injunction of several key SB4 provisions. City of El Cenizo v. State, No. SA17-CV-404-OLG, 2017 WL 3763098 (W.D. Tex. Aug. 30, 2017). This Court subsequently granted a stay of the injunction in significant part. City of El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186 (5th Cir. Sept. 25, 2017) (per curiam). A merits panel heard argument concerning the preliminary injunction on November 6, 2017.
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Summary of the Argument The district court erred in finding that this case was a request for an advisory opinion and thus did not present an actual controversy for purposes of the Declaratory Judgment Act and Article III of the Constitution. First, defendants here threatened litigation against the State and have now brought that litigation. To the extent those threatened claims against the State are justiciable (as the district court there has held), the State validly relied on the same controversy here in filing a declaratory judgment action. The State’s case is just the “mirror image” of the cities’ coercive suit. The Declaratory Judgment Act does not require a potential defendant to sit around waiting for the other party’s shoe to drop. So long as the district court’s jurisdiction is not enlarged—i.e., so long as the same parties would properly be before the court upon application of the well-pleaded-complaint rule—the potential defendant in an action can preemptively go to district court for a ruling on an existing controversy. Second, the State can show its standing here through multiple avenues that were overlooked by the district court. These include the threat of pending litigation and harms to the State’s sovereign interests, including the threatening of the health, safety, and welfare of Texas citizens. When the State filed suit, the dispute between Texas and local governments over SB4 was definite and concrete. And it was a matter of significant public interest. Courts will and already do face multiple challenges to SB4’s constitutionality. The State of Texas understood the concrete dispute over the constitutionality of SB4, and filed suit first—in a venue where the law was passed and where state officials do
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business—to ensure timely consideration by the court under the Declaratory Judgment Act and to prevent a multiplicity of lawsuits in various courts. See ROA.16975. The events since Texas’s filing, namely a multiplicity of lawsuits facially challenging SB4, only underscore the propriety of the State’s action here.
The district court’s order dismissing this action for lack of standing should be reversed.
Standard of Review “A case is properly dismissed for lack of subject matter jurisdiction [only] when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). A district court’s grant of a motion to dismiss for lack of subject matter jurisdiction under 12(b)(1)—including “the jurisdictional issue of standing”—is a question of law subject to de novo review. Crane v. Johnson, 783 F.3d 244, 250 (5th Cir. 2015). “It has long been the case that ‘the jurisdiction of the court depends upon the state of things at the time of the action brought.’” Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824)). And in assessing subject matter jurisdiction, this Court accepts as true the allegations set forth in the complaint. Crane, 783 F.3d at 251. While a district court has discretion in determining whether to hear a case under the Declaratory Judgment Act, Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 601 (5th Cir. 1983), that discretion is not implicated where the decision to dismiss the case rests on a legal error regarding standing. Rowan Cos. v. Griffin, 876 F.2d 26, 29 (5th Cir. 1989).
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Argument I. The State’s Declaratory Judgment Action Satisfies Article III’s Case
Or Controversy Requirement. The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party.” 28 U.S.C. § 2201(a). The phrase “cases of actual controversy” refers to Article III’s case or controversy requirement. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 239-40 (1937). To meet that threshold, a dispute must be “definite and concrete, touching the legal relations of parties having adverse legal interests.” Id. at 240-41. The Supreme Court later summarized that, “[b]asically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941); see also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (same). “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (footnote omitted)). “To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Id.
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(quoting Lujan, 504 U.S. at 560-61). A party seeking a declaratory judgment must therefore meet these Article III standing requirements. BroadStar Wind Sys., 459 F. App’x at 356.
Texas’s Article III standing is shown here in (i) the existence of a cause of action held by the declaratory defendants (coercive plaintiffs in the San Antonio lawsuits), (ii) the threat of immediate litigation warranting a declaration of the parties’ rights, and (iii) the imminent threat of harm to the State’s sovereign interests, including the health, safety, and welfare of Texas citizens. Because those factors give Texas standing to bring this suit, it is a proper use of Article III power and would not constitute an impermissible advisory opinion.
A. The Declaratory Judgment Act allows courts to address actual controversies at the behest of defendants in a putative lawsuit.
The Declaratory Judgment Act provides an expanded procedural device for federal courts to address substantive controversies prior to a plaintiff filing a traditional suit against a defendant. It lets the potential coercive defendant preemptively bring suit against the coercive plaintiff in order to clarify the rights of parties prior to enforcement of a law. See, e.g., Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 95 (1993) (“[A] party seeking a declaratory judgment has the burden of establishing the existence of an actual case or controversy. In patent litigation, a party may satisfy that burden, and seek a declaratory judgment, even if the patentee has not filed an infringement action.” (citing Aetna Life Ins., 300 U.S. at 240-41). This case presents just such a scenario—the State seeks a declaratory judgment in a case where the defendants claimed an existing cause of action.
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To determine if a suit brought under the Act presents a controversy for Article III purposes, “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Rowan Companies, 876 F.2d at 28 (quotation marks omitted). When a party brings a pre-enforcement challenge under the Act, the proper standing analysis determines whether the defendant could have brought the claim against the plaintiff. See Collin Cty., Tex. v. Homeowners Ass’n for Values Essential to Neighborhoods, 915 F.2d 167, 169-71 (5th Cir. 1990) (HAVEN). It is thus “immaterial that frequently, in the declaratory judgment suit, the positions of the parties in the conventional suit are reversed; the inquiry is the same in either case.” Maryland Casualty, 312 U.S. at 273. Rather than fixating on a formulaic rule based on which party happens to be the plaintiff, this Court merely requires that, “[a] controversy, to be justiciable, must be such that it can presently be litigated and decided and not hypothetical, conjectural, conditional or based upon the possibility of a factual situation that may never develop.” Rowan Companies, 876 F.2d at 28 (quoting Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967)). In other words, the nature of the Act allows a federal district court to examine a case regardless of which side of the “v.” a party might be on.
This is often seen in the patent context, where potential infringers may bring a preemptive suit under the DJA to obtain a ruling on their rights with respect to a potentially patented invention. Cardinal Chem., 508 U.S. at 95. Courts do not force the party to rack up potential violations prior to a definitive ruling on whether the
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patent is valid. See Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 73435 (Fed. Cir. 1988) (“After the [Declaratory Judgment] Act, [competitors in the market of the patent holder] were no longer restricted to an in terrorem choice between the incurrence of a growing potential liability for patent infringement and abandonment of their enterprises; they could clear the air by suing for a judgment that would settle the conflict of interests.”). Instead, because the patent holder— the coercive plaintiff in an infringement suit—has a cause of action against the potential coercive defendant, the defendant may initiate legal action as a declaratory plaintiff against the patent holder. Cardinal Chemical, 508 U.S. at 96 (“Merely the desire to avoid the threat of a ‘scarecrow patent,’ in Learned Hand’s phrase, may therefore be sufficient to establish jurisdiction under the Declaratory Judgment Act.” (footnote omitted)). The declaratory defendant’s lurking cause of action thus satisfies Article III’s standing requirements for the declaratory plaintiff’s suit. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. For S. Cal., 463 U.S. 1, 19-20 (1983).
Consequently, Texas has standing to bring the pre-enforcement challenge at issue here by virtue of being on the other side of the “v.” in a case addressing constitutional challenges to its enacted law. The Declaratory Judgment Act’s procedural expansion allows the exact same parties to be in the exact same court on the exact same claims without worrying about the procedural element of which one decided to file suit first. If the San Antonio cases presented a justiciable controversy before the law’s effective date—as the district court there accepted—then the State likewise had standing to present that same controversy in this Austin Division action.
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The district court below concluded that the State had not accounted for the fact that “a plaintiff in a declaratory judgment action must satisfy the standing requirements of Article III.” ROA.641-42 (citing BroadStar Wind Sys., 459 F. App’x at 356). The court relied heavily on Skelly Oil’s teaching that the Act “enlarged the range of remedies available in federal courts,” but “did not extend their jurisdiction.” ROA.641 (quoting Skelly Oil, 339 U.S. at 671). Ultimately, the district court determined that the State was both trying to sidestep the standing rules and enlarge the court’s jurisdiction. ROA.642. This interpretation and application of Skelly Oil’s prohibition on expanding jurisdiction, however, is wrong for three reasons.
First, the State never argued that traditional standing requirements were abolished in these types of cases. ROA.381-89; ROA.616-21. The State’s position continues to be that the standing requirements—those elements that demonstrate a case or controversy—were fulfilled by the nature of the Act and the facts of this case. See id. As shown above, the State met the standing requirements for a declaratory judgment action by virtue of being across the “v.” from a potential coercive plaintiff asserting a live federal cause of action.
Second, application of the DJA to the facts here does not extend the jurisdiction of the court. In other words, no case is presented that could not otherwise be presented if the sides of the “v.” were flipped. Skelly Oil’s reluctance to “extend” jurisdiction was based on strict adherence to the well-pleaded-complaint rule stated in Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908). There, the Mottleys alleged a breach of contract, and the railroad sought a federal forum in which to argue that it
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was prevented from honoring the contract by a federal statute. Id. at 152. The existence of multiple federal questions, however—the applicability of the statute and its constitutionality—would have only arisen in defense, after the original complaint, and thus federal jurisdiction was unsupported. Id. Similarly, the issue between the parties in Skelly Oil was a contract for natural gas. 339 U.S. at 669. Phillips Petroleum was unable to obtain a necessary federal certificate before a certain date (though it had been approved already) and Skelly exercised its option to cancel the contract. Id. Phillips tried to sue Skelly in federal court under the Declaratory Judgment Act for a ruling that the contract was still in force. Id. at 669-71. The only federal question, however, would have arisen when Skelly pled the cancellation of the contract and Phillips replied that termination was improper since the certificate had been issued (at least in some sense). Id. at 672. There was no federal question on the face of the coercive plaintiff’s well-pleaded complaint—as in Mottley, it was just a statelaw contract issue.
Thus, in the context of the admonition that the Act “is procedural only” and does not “extend [federal court] jurisdiction], Skelly Oil, 339 U.S. at 671, the Court was only concerned with preventing a coercive defendant from getting into federal court based on the existence of a federal defense raised as a declaratory plaintiff. Since Phillips was not “asserting a federal right,” using the DJA in that case would have expanded jurisdiction to two parties that should not have been in federal court. Id. at 672; see also Franchise Tax Board, 463 U.S. at 16 (“Skelly Oil has come to stand for the proposition that ‘if, but for the availability of the declaratory judgment pro-
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cedure, the federal claim would arise only as a defense to a state created action, jurisdiction is lacking.’” (quoting 10A Charles A. Wright, et al., Federal Practice and Procedure § 2767, at 744-45 (2d ed. 1983))). That is not the situation in this case. Here, the federal question appeared on the face of the coercive plaintiff’s (potential) well-pleaded complaint: the cities and other coercive plaintiffs claimed a violation of their equal-protection, due-process, First Amendment, and other constitutional rights. The federal cause of action putatively possessed by those coercive plaintiffs (defendants here) therefore provides federal jurisdiction consistent with Skelly Oil. See Franchise Tax Board, 463 U.S. at 19 (“Federal courts have regularly taken original jurisdiction over declaratory judgment suits in which, if the declaratory judgment defendant brought a coercive action to enforce its rights, that suit would necessarily present a federal question.”).1
0F
Third, the procedural device the State seeks to use in this case would not extend the jurisdiction of a court any more than the coercive defendants who use declaratory judgment actions to “clear the air” when facing a potential coercive plaintiff. Even if one sought to distinguish the patent cases because they are subject to exclusive federal court jurisdiction, 28 U.S.C. § 1295(a), that is irrelevant here. That is be-
1 Moreover, though it more frequently would happen through an individual suing the state, the Supreme Court has noted that “Congress anticipated that the declaratory judgment procedure would be used by the federal courts to test the constitutionality of state criminal statutes.” Steffel v. Thompson, 415 U.S. 452, 467-68 (1974). The present case’s consistency with that purpose further undermines the argument that it represents an expansion of jurisdiction.
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cause the provision for exclusive jurisdiction does not alter the calculus for classifying whether a coercive defendant has an “injury in fact” when he or she seeks to bring the preemptive lawsuit. It merely identifies where the federal question lies. It is thus unsurprising that the Supreme Court did not rely whatsoever on an “exclusive federal jurisdiction” argument in explaining why declaratory plaintiffs (coercive defendants) did not need a showing of standing beyond the existence of the declaratory defendant’s cause of action. See Cardinal Chem., 508 U.S. at 95-96.
The district court could have presented what would have facially seemed like a more difficult question by relying on Franchise Tax Board. 463 U.S. at 21-22. There, the Supreme Court noted that “[t]here are good reasons why the federal courts should not entertain suits by the States to declare the validity of their regulations despite possibly conflicting federal law.” Id. at 21. The Court went on to hold that “a State’s suit for a declaration of the validity of state law . . . is not within the original jurisdiction of the United States district courts.” Id. at 21-22. These statements must be read in context, however, and do not foreclose the State’s declaratory judgment argument here.
Franchise Tax Board—like Skelly Oil—addressed a state-law cause of action where a federal defense was anticipated; the case was about where the federal question arose. Id. at 13-14. The primary difference was that tax board filed a state declaratory action on a state tax-law claim which referenced an underlying ERISA issue; the other party then sought to remove it to federal court. Id. at 13-17. Though a federal question “arose” in the state declaratory judgment action, id. at 23, the Supreme Court determined that such actions must be subject to the same limitation
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as Skelly Oil since the goal was to determine whether the case would have original jurisdiction. Id. at 19. This led to the holding that the suit was not within the district court’s original jurisdiction, and thus not removable either. Id. at 22. While ERISA allowed for an injunctive suit by the appellees that would have been proper in federal court, the Supreme Court determined that there was no significant prejudice in preventing a state from coming “to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation.” Id. at 21. There was merely a specific statutory provision to allow for that anomaly. Id. at 2021 (“The express grant of federal jurisdiction in ERISA is limited . . . .”).
Franchise Tax Board is not controlling here for several reasons. First, it dealt with whether a case arose under federal law rather than the existence of a case or controversy, and it principally stands for the proposition that Skelly Oil does not allow federal jurisdiction in a case where the federal question would not have arisen in federal court until a defense. Id. at 18-22. Second, not only does the present case not involve a potential Mottley violation, there is no federal regulation at issue here that would allow an injunctive suit by the defendants. Without that specific statutory wrinkle, this case should follow the normal rules of declaratory judgment actions. Third, the fact that the state’s declaratory judgment action in Franchise Tax Board was filed in state court weighed heavily in the decision of the Court not to find jurisdiction. Id. at 21 n.22 (“[C]onsiderations of comity make us reluctant to snatch cases which a State has brought from the courts of that State, unless some clear rule demands it.”). Again, that consideration is not present here. Finally, the issue in Franchise Tax Board can be distinguished from the constitutional questions at issue here.
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The determinations in this case—dealing with alleged violations of individual rights—are a more substantial cause of action than mere preemption, and thus more likely to be in the “substantial” category of situations warranting federal jurisdiction. See id. at 20.
Ultimately, one can see that it is improper to read the narrow circumstances of Franchise Tax Board to foreclose jurisdiction here because of the result that would obtain. Under such an interpretation, the defendants in this case—as there—would not have been able to remove the case from state court had Texas filed suit there. Yet there is no reason to believe that defendants could not have removed a statecourt action based on the federal law questions in this case—questions raised either by virtue of the claims in the complaint or by virtue of the state law at issue (SB4) being completely derivative of federal law. This is not a case where the federal question is in the defense and thus it is a case that should follow the normal rules for declaratory judgment actions.
As this Court has held, “it is the underlying cause of action of the defendant against the plaintiff that is actually litigated in a declaratory judgment action, a party bringing a declaratory judgment action must have been a proper party had the defendant brought suit on the underlying cause of action.” HAVEN, 915 F.2d at 171. Because defendants were threatening to sue (and later did sue) the State here, see City of El Cenizo, there was standing for the State to bring this declaratory judgment action. See Aetna Life Ins., 300 U.S. at 243 (holding that if an insured individual, who claimed disability, had filed his traditional cause of action first, “there would have been no question that the controversy was of a justiciable nature” and that the Act
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merely provided a different procedural tool to bring that justiciable controversy before the federal court). Nothing in Skelly Oil or Franchise Tax Board prevents adherence to this Court’s direction in HAVEN. The State’s declaratory judgment action satisfies the requirements of Article III.
B. Impending Litigation Also Gives the State Standing Here. Defendants’ preparation for and threatened litigation on the constitutionality of SB4 also created standing for the State, as a credible threat of imminent litigation is sufficient to create standing to seek a declaratory judgment. Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 897 (5th Cir. 2000) (“The threat of litigation, if specific and concrete, can indeed establish a controversy upon which declaratory judgment can be based.” (citing NUCOR Corp. v. Aceros Y Maquilas de Occidente, 28 F.3d 572, 578 (7th Cir. 1994)). “The fact that the filing of the lawsuit is contingent upon certain factors does not defeat jurisdiction over a declaratory judgment action.” Id. (citing Associated Indem. Corp. v. Fairchild Indus., Inc., 961 F.2d 32, 35 (2d. Cir. 1992)); see also 10B Charles A. Wright, et al., Federal Practice & Procedure § 2757, at 476 (4th ed. 1984) (“It is clear that in some instances a declaratory judgment is proper even though there are future contingencies that will determine whether a controversy ever actually becomes real.”). What matters is that the threatened dispute has “taken on final shape so that the court can see what legal issues it is deciding.” El Paso Bldg. & Constr. Trades Council v. El Paso Chapter Associated Gen. Contractors of Am., 376 F.2d 797, 800 (5th Cir. 1967).
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The State offered an uncontroverted showing of the imminent threat of impending legal action by defendants, including statements that defendants would file lawsuits against Texas prior to the September 1, 2017 effective date of the statute. See ROA.642-43 (noting the defendants’ public statements that they would challenge the constitutionality of SB4, as well as the votes by both Austin and El Paso County to do so). These statements were sufficiently “specific and concrete” enough to meet the State’s burden of showing an imminent threat of litigation. Orix, 212 F.3d at 897; see also Associated Indem. Corp., 961 F.2d at 35 (noting that, in determining the threat of litigation, “courts should focus on ‘the practical likelihood that the contingencies will occur’”). The State had far more than mere conjecture here. As the district court recognized, Texas cities were virtually certain to sue over SB4. ROA.642-43. And a suit was filed the day after the State filed this suit.2
1F
The district court rejected standing on this point based on the argument that the threat to sue is not the same as the intent to break the law. ROA.643. That was error for several reasons. To begin, defendants did more than threaten to sue; they did, in fact, state their intent to violate the law. ROA.249. Yet even under the district court’s own formulation, standing is still proper since the imminent threat of a lawsuit is sufficient—in itself—to support a claim under the Act. Lower Colo. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916, 924 (5th Cir. 2017) (“Notably, ‘[t]he threat of litigation, if specific and concrete, can indeed establish a controversy upon
2 Though defendants here were not among the cities that initially filed in the San Antonio division, they immediately sought to have this suit dismissed and joined the one there.
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which declaratory judgment can be based.’” (quoting Orix, 212 F.3d at 897)). As it turns out, defendants’ credible promises to flout the law were superfluous to the standing analysis because of their credible promises to sue.
The fact that defendants’ lawsuit was to be filed imminently, in advance of SB4’s effective date, is irrelevant to the analysis; what matters is the certainty of that suit. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)) (“[O]ne does not have to await the consummation of threatened injury to obtain preventative relief. If the injury is certainly impending, that is enough.”); cf. Epperson v. Arkansas, 393 U.S. 97, 101-02 (1968) (accepting jurisdiction over a challenge to a state statute despite finding that “[t]here is no record of any prosecutions in Arkansas under its statute” and noting it was “possible that the statute is presently more of a curiosity than a vital fact of life”). SB4 had been signed into law and the parties were in the period prior to enforcement where judicial review is available.3
2F
All this aligns with the Supreme Court’s direction in MedImmune that “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
3 Neither side appears to contest the availability of pre-enforcement review. So long as enforcement is sufficiently imminent, judicial review may be had prior to any actual enforcement action. Driehaus, 134 S. Ct. at 2342 (“[W]e have permitted preenforcement review under circumstances that render the threatened enforcement sufficiently imminent.”).
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549 U.S. at 127. In this case, the issues had taken shape, as seen by the filing against the State, on virtually the same claims, the day after this suit was filed. See ROA.638 (noting the filing of El Cenizo’s lawsuit on May 8, 2017, and its consolidation with other cases involving the same issues of law regarding whether SB4 was unconstitutional). The law in dispute had already been enacted and its enforcement was imminent. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, at *3 (2012) (Roberts, C.J., in chambers) (quotation marks omitted). That exact irreparable injury was threatened here, as the various political subdivisions credibly threatened suit for a court order that SB4 is unconstitutional and preempted. Because both the threatened suits and the enforcement of the law were imminent, the controversy was “of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, 549 U.S. at 127.
C. Pending violations of the law were an imminent harm to the State’s interests in protecting its citizens, enforcing its laws, and having its sovereignty recognized by other government actors.
As the City of El Cenizo acknowledged in its complaint—commenced the day after this suit was filed—“[t]his lawsuit is about sovereignty.” El Cenizo Complaint at 8, City of El Cenizo, ECF No.1. The City claims that “SB4 is a severe invasion of Plaintiffs’ sovereign rights as local governments to form their own laws and policies.” Id. at 7. And the localities in this suit—both the original defendants and those added in the amended complaint from the San Antonio suits—believe that they have the right and duty to defy Texas law on this issue. ROA.275-78. Defendants have
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not only previously maintained policies that violate the law, they broadcast their intention to do so after the law’s effective date. ROA.254-62. These policies and actions harm the State’s sovereign interests in protecting its citizens, enforcing its laws, and having its sovereignty recognized by other political subdivisions of the State.
Texas has a sovereign interest in protecting its citizens, and it enacted SB4 to assist in that effort. Despite the imminent threat to Texas citizens from sanctuary city policies—acknowledged by the Legislature—some of Texas’s political subdivisions continue to support and maintain such policies. See ROA.254-62. For instance, Travis County prohibits the use of county resources to communicate with federal immigration officials about incarcerated undocumented immigrants (absent a judicial order or warrant), and also prohibits personnel from inquiring about any person’s immigration status. ROA.34; ICE Policy Video, supra at 7. These policies restrict the ability of personnel to maintain information regarding individual’s immigration status and exchange information with federal immigration officers.
Even after this Court’s ruling on the stay motion for the preliminary injunction in City of El Cenizo, 2017 WL 4250186, at *2 (noting the constitutionality of multiple provisions of SB4), Defendant Greg Casar encouraged the Austin City Council to pass immigration policies contrary to SB4, arguing that local governments had the ability to defy what he called “[Governor] Abbott’s racist coercion.” Philip Jankowski, Sheriff Will Enforce Immigration Detentions After SB 4 Court Ruling, Austin American Statesman (Sept. 25, 2017), http://www.mystatesman.com/news/crime-law/sheriff-will-enforce-immigration-detentions-after-court-ruling/AjUnEtr3aKxr
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6DoGmf7YdL/. Similarly, El Paso not only disagrees with the State’s law, but finds the law “insulting” and has vowed to maintain its course of conduct in violation of state law. El Paso Complaint at 2-3, City of El Cenizo, ECF No. 51. Likewise, the City of El Cenizo still has an official policy—based on its city ordinance—of noncompliance with federal immigration enforcement, in violation of SB4. City of El Cenizo, Safe Haven Ordinance, Ordinance Number 1999-8-3(b). These actions are direct affronts to both the State’s interest in enforcing its laws and its interest in cities recognizing their proper role in the Texas legal system. That harm to Texas was imminent upon SB4’s effective date and also created standing to avoid that looming injury through this declaratory action.
A state also has a sovereign interest in enforcing its laws. Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 601 (1982) (identifying as a sovereign interest “the power to create and enforce a legal code, both civil and criminal”); Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (“[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’”); cf. Texas v. United States, 805 F.3d 653, 663 (5th Cir. 2015) (“[T]he [United States] Government’s ‘interests are in securing an expansive interpretation of executive authority, efficiently enforcing the immigration laws, and maintaining its working relationship with the States, who often assist it in detaining immigrants like the Jane Does.’”). This Court has found that a state necessarily suffers irreparable harm to this sovereign interest if it is unable to enforce its laws. See, e.g., Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (“When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the
31

Case: 17-50763 Document: 00514279155 Page: 44 Date Filed: 12/19/2017
public interest in the enforcement of its laws.”). Relatedly, injunctions providing local law enforcement with the discretion to act at variance with state law present a harm to the sovereign interests of the State. Castillo v. Cameron Cty., Tex., 238 F.3d 339, 350–51 (5th Cir. 2001) (“[The] injunction allows the sheriff, in violation of state law, to refuse to incarcerate state parole violators for whom blue warrants have been issued . . . . Because the State has a sovereign interest in enforcing its laws, it has a personal stake in appealing the October 1997 injunction that gives the County discretion to violate those laws.”).
Notably, this Court has already found that it would create “irreparable injury to Texas” for the State to not to be able to enforce at least some portions of SB4. City of El Cenizo, 2017 WL 4250186, at *2. Defendants’ course of conduct—in contravention of state and federal law, and the State’s sovereignty—presents just such a situation. The timing of the State’s lawsuit before SB4’s effective date merely meant that the many harms to State sovereign and quasi-sovereign interests were imminent rather than present. But imminent harm still creates a concrete stake in an actual controversy. See Surrick v. Killion, 449 F.3d 520, 527 (3d Cir. 2006) (“It is not necessary for the party seeking review to have suffered a completed harm in order to establish adversity of interest so long as there is a substantial threat of real harm that remains throughout the course of the litigation.”).
Not only do defendants’ threats present an imminent challenge to the State’s enforcement of its law, they further undermine the rule of law by their attack on the proper role of cities vis-à-vis the State. The State has a sovereign interest in being properly recognized as a sovereign. See, e.g., Snapp, 458 U.S. at 601 (identifying
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“easily” the sovereign interest of “recognition”). This interest in having the State’s sovereignty properly recognized goes beyond horizontal interactions between the various States, to also encompass vertical interactions between levels of State and federal government. See id. at 607–08 (noting that “the State has an interest in securing observance of the terms under which it participates in the federal system”). If an interest in maintaining the proper relationship between state and the federal government constitutes a sovereign interest which justifies standing, there is an analogous sovereign interest in securing the terms under which the state interacts with its constituent units that should justify standing as well.
In our federal system, the atom of sovereignty was split between the federal government and the States. Not so at the State level. The State’s political subdivisions have no sovereignty except as delegated by the State. Cmty. Commc’ns Co. v. City of Boulder, Colo., 455 U.S. 40, 53 (1982) (“Ours is a dual system of government which has no place for sovereign cities.” (internal quotation marks, citation, and emphasis omitted)); City of Galveston v. State, 217 S.W.3d 466, 477 & n.18 (Tex. 2007) (“[Municipalities] are created as political subdivisions of the state as a convenient agency for the exercise of such powers as are conferred upon them by the state. They represent no sovereignty distinct from the state and possess only such powers and privileges as have been expressly or impliedly conferred upon them.” (quoting Payne v. Massey, 196 S.W.2d 493, 495 (Tex. 1946)); 18 Eugene McQuillin, The Law of Municipal Corporations § 53:5:2 (3d ed., rev., 2013) (stating that “municipalities, unlike states, are not sovereigns”). This is true even for “home rule” cities that are allowed to make laws in areas where the State has not limited their discretion. Tex. Const.
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art. XI, § 5 (specifically providing with regard to home rule cities that “no charter or any ordinance passed under said charter shall contain any provision inconsistent with . . . the general laws enacted by the Legislature of this State”); cf. Tyra v. City of Houston, 822 S.W.2d 626, 628 (Tex. 1991) (“The Texas Constitution prohibits a city from acting in a manner inconsistent with the general laws of the state. . . . Thus, the legislature may, by general law, withdraw a particular subject from a home rule city’s domain.”). 4
3F
The actions of defendants in this case present an actual and imminent harm to the State’s unitary sovereignty by purporting to have the authority to pursue their policies despite state law. For instance, Maverick County, the City of El Cenizo, and their officials specifically claim “sovereign authority to set and follow their own laws” and “autonomy” to “control the exercise of its own police powers,” even in defiance of state law. El Cenizo Complaint at 8, City of El Cenizo, ECF No. 1. They have argued that the State has no authority to “wrest this autonomy from local gov-
4 The only relevant difference between home rule cities and other municipalities is that a general law municipality only has those powers which the state expressly grants it, whereas a home rule city is implied to have any power which the state has not expressly denied it. See Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 530-31 (Tex. 2016). In either case, all municipalities—including home rule cities—are “creatures of law that are created as political subdivisions of the state . . . for the exercise of such powers as are conferred upon them . . . . They represent no sovereignty distinct from the state and possess only such powers and privileges as have been expressly or impliedly conferred upon them.” Id. at 530 (quotations omitted) (alterations in original).
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ernments.” Id. Similarly, El Paso County claims that its sheriff’s office has “discretion to make and enforce rules, regulations, and policy regarding his officers’ interactions with federal immigration officials,” even if it conflicts with state law. El Paso Complaint at 31, City of El Cenizo, ECF No. 51. The county also claims that it has a right, purportedly grounded in the state constitution, to violate state laws which limit the “broad discretion” the county claims it is entitled to with regard to how to “provide county government services to all its residents.” Id. at 30.
Likewise, Austin City Council Member Greg Casar responded to SB4 and this lawsuit by saying: “Instead of complying with the Governor’s mandates, we will double down on our pro-immigrant policies. Instead of being silenced by the Attorney General’s threats, we will rise up and speak truth to power. The fight against Senate Bill 4 is just beginning.” In Pre-emptive Attack, Texas Files Suit Against Austin Over “Sanctuary Cities,” The Austin Chronicle (May 8, 2017), https://www.austinchronicle.com/daily/news/2017-05-08/in-pre-emptive-attack-texas-files-suitagainst-austin-over-sanctuary-cities/. This statement implicitly acknowledges that the city had policies that conflicted with SB4, and intended to maintain those policies in defiance of state sovereignty. The State’s allegations also show that the district court was wrong to assume that there was “no evidence at the time of filing suit” that “it was clear Defendants planned to violate the law once it t[ook] effect.” ROA.643. Even apart from defendants’ own words, the State’s allegations—which must be taken as true at the pleading stage—outline the fact that defendants would continue their policies in the face of SB4. ROA.254-62. Such behavior created an
35

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imminent harm to the state’s sovereign interest in being recognized as sovereign over

its constituent political subdivisions.

As sovereign, the State has a significant interest in avoiding this very scenario,

where its constituent political units refuse to recognize the sovereignty of the State

legislature by refusing to carry out its validly enacted laws. This is a direct challenge

to the State’s sovereign power. See ROA.279. Furthermore, the State need not wait

until its constituent units have actually jeopardized its sovereignty by acting in defi-

ance of the law. Even if the harm would only be completed on the effective date of

the law, the fact that these political subdivisions credibly evinced an intent to defy

SB4 once it was passed constitutes a harm to the sovereignty of the State.

The citizens of Texas were imminently threatened by non-enforcement of SB4’s

mandates about federal immigration enforcement. ROA.249 (highlighting threat to

public safety “deriving from the failure of localities to cooperate with federal immi-

gration policies”). Because the State has a sovereign interest in protecting its citi-

zens, Texas has standing to pursue the claim here. Indeed, the State has a stronger

claim of harm from the defendant’s actions than defendants had in challenging the

state law. Political subdivisions have a limited interest when compared to the State.

City of Galveston, 217 S.W.3d at 477. By contrast, Texas has an interest in its laws

being enforced and being properly recognized by other governmental entities, in-

cluding its political subdivisions. Snapp, 458 U.S. at 607–08; see also Castillo 238

F.3d at 350–51. Defendants’ imminent threats and attacks on the sovereignty of the

State demonstrate a cognizable harm for standing purposes.

*

*

*

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The nature of the Declaratory Judgment Act, as well as the imminent concrete harms to the State and its interests, show that the district court erred in finding that this case was a mere request for an advisory opinion which did not present an actual controversy for purposes of the Declaratory Judgment Act and Article III. II. Policy Considerations Support Federal Court Jurisdiction In The Nar-
row Set Of Cases Presented Here. Federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given them.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Furthermore, this Court is particularly solicitous toward rare claims, such as this case, where the claim is brought in a proper forum with the purpose of avoiding a multiplicity of lawsuits. Travelers Ins. Co. v. La. Farm Bureau Fed'n, Inc., 996 F.2d 774, 776–77 (5th Cir. 1993). Such a purpose “is entirely consistent with the purposes of the Declaratory Judgment Act.” Id. at 777. Because this is just such a circumstance, the district court should have heard Texas’s suit for declaratory relief. See Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 388 (5th Cir. 2003); St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 591 (5th Cir. 1994); Travelers, 996 F.2d at 776–77. In Travelers, the declaratory judgment action was preemptively brought “to avoid a multiplicity of suits in various forums . . . .” 996 F.2d at 777. As explained in the complaint, suit was brought “so that the one pertinent issue, which involved [several individuals] who could have brought suit in multitudinous forums . . . could be resolved consistently in one, rather than multiple, forums.” Id. “Such a goal, unlike that of changing forums or subverting the real plaintiff’s advantage in state
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court, is entirely consistent with the purposes of the Declaratory Judgment Act.” Id. Thus, consistent with the purposes of the Act, Texas brought this action “to avoid a multiplicity of suits in various forums . . . so that the one pertinent issue . . . [can] be resolved consistently in one, rather than multiple, forums.” Id.5
4F
Moreover, in “cases raising issues of federal law or cases in which there are no parallel state proceedings,” Wilton v. Seven Falls Co., 515 U.S. 277, 290 (1995), this Court has suggested that a court’s discretion to decline jurisdiction is limited. See Sherwin-Williams Co., 343 F.3d at 394 (noting that the “absence of any pending related state litigation strengthens the argument against dismissal of the federal declaratory judgment action.”). Here, of course, there is no pending state court action— though Texas could have filed there—and the claims at issue involve important issues of federal constitutional law.
Additionally, the unique context in which this case arose demonstrates why the case should be heard in the Austin Division. Texas brought a proper suit, in a proper venue, and was the first party to do so. Thus, declining to exercise jurisdiction would allow a deliberate circumvention of the Fifth Circuit’s longstanding first-to-file rule, which posits that “when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the issues raised by the
5 While the San Antonio version of this case has now been before this Court twice, both instances involved a preliminary injunction posture. The San Antonio court has not ruled on all of the issues there yet. See City of El Cenizo, 2017 WL 3763098, at *3 (expressly noting that “[t]here are numerous claims that the Court does not address, either because it is unnecessary to reach them or because they are ‘as applied’ challenges”); cf. id at *10 n.23; id. at* 15 n.39; id. at *38 n.93.
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cases substantially overlap.” Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir. 1999); see also Superior Sav. Ass’n v. Bank of Dall., 705 F. Supp. 326, 330 (N.D. Tex. 1989) (mem. op.) (“The rule of thumb in the Fifth Circuit is that the court initially seized of a controversy should be the one to decide whether it will try the case.”). Applying the first-to-file rule to the two Divisions here, it is the Austin litigation, not the San Antonio litigation, through which the parties should resolve SB4’s constitutionality.
Contrary to the trial court’s concern, a ruling for the State in this case would not open a Pandora’s box of requests for advisory opinions. See ROA.644. First, as demonstrated, the State is not seeking an advisory opinion. This case involves a live controversy, and the fact that the defendants have initiated nearly identical lawsuits in another venue indicates that they likewise believe that this is a substantial controversy with real legal consequences. Furthermore, this Court’s precedent, combined with the unique facts of this case, present several safeguards against the slippery slope imagined by defendants.
Finally, the facts of this case—a law aimed at localities rather than individuals, where the localities are threatening to sue the State and defy the duly enacted law— allows for a narrow ruling, limited to cases and controversies between the State and its constituent units, and then only cases where constituent units intend to violate the law by refusing to enforce it or are on the precipice of litigation against the State. Such an extreme example as presented by the actions and assertions of the defendants in this case would not result in the chaos imagined by the district court.
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Conclusion The Court should reverse the district court and remand for consideration of the State’s declaratory judgment claims.

Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697

Respectfully submitted,
Scott A. Keller Solicitor General
/s/ John C. Sullivan John C. Sullivan Assistant Solicitor General john.sullivan@oag.texas.gov
Counsel for Plaintiffs-Appellants

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Certificate of Service On December 19, 2017, this brief was served via CM/ECF on all registered counsel and transmitted to the Clerk of the Court. Counsel further certifies that: (1) any required privacy redactions have been made in compliance with Fifth Circuit Rule 25.2.13; (2) the electronic submission is an exact copy of the paper document in compliance with Fifth Circuit Rule 25.2.1; and (3) the document has been scanned with the most recent version of Symantec Endpoint Protection and is free of viruses.
/s/ John C. Sullivan John C. Sullivan
Certificate of Compliance This brief complies with: (1) the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 11,013 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii); and (2) the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface (14-point Equity) using Microsoft Word (the same program used to calculate the word count).
/s/ John C. Sullivan John C. Sullivan
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Case: 17-50763 Document: 00514284622 Page: 1 Date Filed: 12/19/2017

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
December 22, 2017

Mr. John Clay Sullivan Office of the Attorney General Office of the Solicitor General P.O. Box 12548 Austin, TX 78711
No. 17-50763 Texas, et al v. Travis County, Texas, et al USDC No. 1:17-CV-425

Dear Mr. Sullivan,
We have reviewed your electronically filed appellants' brief and it is sufficient.
You must submit the 7 paper copies of your brief required by 5TH CIR. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1.
Failure to timely provide the appropriate number of copies may result in the dismissal of your appeal pursuant to 5TH CIR. R. 42.3.

Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________ Sabrina B. Short, Deputy Clerk 504-310-7817
cc: Ms. Marisa Bono Ms. Cassandra Lang Champion Mr. Christopher Coppola Mr. David Wilson Dummer Ms. Laurie R. Eiserloh Mr. Jose Garza Mr. Lee P. Gelernt Mr. David J. Hacker Mr. Renea Hicks Ms. Mimi M.D. Marziani

Case: 17-50763 Document: 00514284622 Page: 2 Date Filed: 12/19/2017
Mr. Darren Lee McCarty Mr. Michael Patrick Moran Mr. Anthony J. Nelson Mr. David Austin Robert Nimocks Mr. Efren Carlos Olivares Mr. Edgar Saldivar Mr. Jose F. Sanchez Mr. Andre Segura Mr. Michael Siegel Ms. Sherine Elizabeth Thomas Ms. Trisha Trigilio Mr. Luis Roberto Vera Jr.

 
 Case: 17-50763 Document: 00514351542 Page: 1 Date Filed: 02/16/2018
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Docket No. 17-50763
TEXAS; KEN PAXTON, in his official capacity as Texas Attorney General,
Plaintiffs – Appellants
v.
TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas; CITY OF AUSTIN, TEXAS; ORA
HOUSTON, in her official capacity as City Council Member of the City of Austin, Texas; DELIA GARZA, in her official capacity as City Council Member of the City of Austin, Texas; SABINO RENTERIA, in his official capacity as City
Council Member of the City of Austin, Texas; GREGORIO CASAR, in his official capacity as City Council Member of the City of Austin, Texas; ANN KITCHEN,
in her official capacity as City Council Member of the City of Austin, Texas; JIMMY FLANNIGAN, in his official capacity as City Council Member of the City of Austin, Texas; LESLIE POOL, in her official capacity as City Council Member of the City of Austin, Texas; ELLEN TROXCLAIR, in her official capacity as City
Council Member of the City of Austin, Texas; KATHIE TOVO, in her official capacity as City Council Member of the City of Austin, Texas; ALISON ALTER,
in her official capacity as City Council Member of the City of Austin, Texas; STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas; ELAINE HART, in her official capacity as Interim City Manager of the City of
Austin, Texas; MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND; EL PASO COUNTY, TEXAS; RICHARD WILES, in his
official capacity as Sheriff of El Paso County, Texas; CITY OF EL CENIZO, TEXAS; RAUL L. REYES, in his official capacity as Mayor of El Cenizo, Texas; MAVERICK COUNTY, TEXAS; TOM SCHMERBER, in his official capacity as
Sheriff of Maverick County, Texas; MARIO A. HERNANDEZ, in his official capacity as Constable Precinct 3-1 of Maverick County, Texas; TEXAS
ORGANIZING PROJECT EDUCATION FUND; LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
Defendants – Appellees

Case: 17-50763 Document: 00514351542 Page: 2 Date Filed: 02/16/2018

On Appeal from the United States District Court for the Western District of Texas, Austin Division, No. 1:17-cv-425
RESPONSE BRIEF OF DEFENDANTS - APPELLEES

Luis Roberto Vera, Jr. LULAC National General Counsel
LAW OFFICES OF LUIS ROBERTO VERA & ASSOCIATES, P.C. 111 Soledad, Suite 1325 San Antonio, TX 78205-2260 Phone: (210) 225-3300 lrvlaw@sbcglobal.net (City of El Cenizo Appellees)

Lee Gelernt Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2660 lgelernt@aclu.org ojadwat@aclu.org (City of El Cenizo Appellees)

Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P. O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com (City of El Cenizo Appellees)
Andre I. Segura Edgar Saldivar Trisha Trigilio AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 asegura@aclutx.org esaldivar@aclutx.org ttrigilio@aclutx.org (City of El Cenizo Appellees)

Spencer E. Amdur Cody Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0770 samdur@aclu.org cwofsy@aclu.org (City of El Cenizo Appellees)
Sherine E. Thomas Assistant County Attorney Sharon K. Talley Assistant County Attorney Anthony J. Nelson Assistant County Attorney Laurie R. Eiserloh Assistant County Attorney TRAVIS COUNTY ATTORNEY’S OFFICE

Case: 17-50763 Document: 00514351542 Page: 3 Date Filed: 02/16/2018

Anne L. Morgan City Attorney Meghan L. Riley Chief, Litigation Michael Siegel Assistant City Attorney Christopher Coppola Assistant City Attorney CITY OF AUSTIN – LAW DEPARTMENT P. O. Box 1546 Austin, Texas 78767-1546 Phone: (512) 974-2268 Michael.Siegel@austintexas.gov Christopher.Coppola@austintexas.gov (City of Austin Appellees)

P. O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9415 sherine.thomas@traviscountytx.gov sharon.talley@traviscountytx.gov tony.nelson@traviscountytx.gov laurie.eiserloh@traviscountytx.gov (Travis County Appellees)
Efrén Carlos Olivares TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Alamo, TX 78516 Phone: (956) 787-8171 ext. 108 efren@texascivilrightsproject.org (Texas Organization Project Education Fund)

Mimi M.D. Marziani TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, TX 78741 Phone: (512) 474-5073 mimi@texascivilrightsproject.org champion@texascivilrightsproject.org (Texas Organization Project Education Fund)

Case: 17-50763 Document: 00514351542 Page: 4 Date Filed: 02/16/2018

CERTIFICATE OF INTERESTED PARTIES No. 17-50763

STATE OF TEXAS; KEN PAXTON, Texas Attorney General, Appellants.

v.

TRAVIS COUNTY, TEXAS, et al. Appellees.

The undersigned counsel of record certifies that pursuant to the fourth sentence of Rule 28.2.1, the following listed persons or entities have an interest in the outcome of this case. These representations are made so that the judges of this Court may evaluate possible disqualification or recusal.

Parties/ Entities Appellees Travis County
Sally Herenandez City of Austin, Texas

Counsel Anthony J. Nelson Laurie R. Eiserloh Travis County Attorney's Office 314 West 11th Street Room 590 Austin, TX 78701
Sherine Elizabeth Thomas Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, TX 78767 Anthony J. Nelson Laurie R. Eiserloh Sherine Elizabeth Thomas (Addresses Above) Christopher Coppola City of Austin P.O. Box 1546 Austin, TX 78767

i

Case: 17-50763 Document: 00514351542 Page: 5 Date Filed: 02/16/2018

Ora Houston Delia Garza Sabino Renteria Gregorio Cesar Ann Kitchen Jimmy Flannigan Leslie Pool Ellen Troxclair Kathie Tovo Alison Alter Steve Adler Elaine Hart

Michael John Weills Siegel City of Austin Law Department P.O. Box 1088 Austin, TX 78767 Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel (Addresses Above) Christopher Coppola Michael John Weills Siegel
ii

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El Paso County
Richard Wiles City of El Cenizo

(Addresses Above) Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX 78209
Michael Patrick Moran Garza Golando Moran, PLLC 405 N. St. Marys St., Ste. 700 San Antonio, TX 78205 Jose Garza Michael Patrick Moran (Addresses Above) Luis Roberto Vera , Jr. Law Offices of Luis Roberto Vera & Associates, P.C. 111 Soledad Suite 1325 San Antonio, TX 78205-2260
Max Renea Hicks Law Office of Max Renea Hicks P. O. Box 303187 Austin, TX 78703
Trisha Trigilio ACLU of Texas 1500 McGowen Street Houston, TX 77004
Lee Gelernt Omar Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004
Spencer Amdur Cody Wofsy AMERICAN CIVIL LIBERTIES
iii

Case: 17-50763 Document: 00514351542 Page: 7 Date Filed: 02/16/2018

Raul Reyes Maverick County Tom Schmerber

UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111
Andre I. Segura Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Luis Roberto Vera , Jr. Max Renea Hicks Trisha Trigilio Lee Gelernt Omar Jadwat Spencer Amdur Cody Wofsy Andre I. Segura Edgar Saldivar (Addresses Above) Luis Roberto Vera , Jr. Max Renea Hicks Trisha Trigilio Lee Gelernt Omar Jadwat Spencer Amdur Cody Wofsy Andre I. Segura Edgar Saldivar (Addresses Above) Luis Roberto Vera , Jr. Max Renea Hicks Trisha Trigilio Lee Gelernt Omar Jadwat Spencer Amdur Cody Wofsy Andre I. Segura Edgar Saldivar (Addresses Above)
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Mario Hernandez
Texas Organization Project Education Fund
League of United Latin American Citizens

Luis Roberto Vera , Jr. Max Renea Hicks Trisha Trigilio Lee Gelernt Omar Jadwat Spencer Amdur Cody Wofsy Andre I. Segura Edgar Saldivar (Addresses Above) Mimi M.D. Marziani Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741
Efrén Carlos Olivares Texas Civil Rights Project 1017 W. Hackberry Alamo, TX 78516 Luis Roberto Vera , Jr. Max Renea Hicks Trisha Trigilio Lee Gelernt Omar Jadwat Spencer Amdur Cody Wofsy Andre I. Segura Edgar Saldivar (Addresses Above)

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STATEMENT REGARDING ORAL ARGUMENT Appellees respectfully request oral argument.
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TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES ......................................................... i STATEMENT REGARDING ORAL ARGUMENT ............................................. vi TABLE OF AUTHORITIES ................................................................................. viii JURISDICTIONAL STATEMENT ....................................................................... xii STATEMENT OF ISSUE PRESENTED FOR REVIEW ..................................... xii INTRODUCTION .....................................................................................................1 STATEMENT OF THE CASE..................................................................................2
A. Senate Bill 4. ...................................................................................................2 B. This Lawsuit....................................................................................................4 C. The Decision Below........................................................................................7 D. Subsequent Developments. .............................................................................8 SUMMARY OF ARGUMENT .................................................................................9 STANDARD OF REVIEW .....................................................................................11 ARGUMENT ...........................................................................................................12 I The District Court Lacks Statutory Jurisdiction............................................12 II. Texas Lacks Standing. ...................................................................................17
A. Speculation About Violations of SB4 Does Not Create Standing. ..........19 B. Other Parties’ Ability to Sue Does Not Give Texas Standing. ................24 C. Even If Threats of Litigation Created Standing, Texas Did Not
Identify Any Threats by the Current Defendants When It Filed Suit. .....29 III.The District Court Was Correct to Decline Jurisdiction. ..............................31 CONCLUSION ........................................................................................................38
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TABLE OF AUTHORITIES Cases Am. States Ins. Co. v. Bailey, 133 F.3d 363 (5th Cir. 1998)....................................12 AmSouth Bank v. Dole, 386 F.3d 763 (6th Cir. 2004) ................................ 32, 35, 38 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................20 Austin v. Davis, 693 Fed. App’x 342 (5th Cir. 2017) ..............................................33 BASF Corp. v. Symington, 50 F.3d 555 (8th Cir. 1995). .........................................38 Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355 (5th Cir.
2005) .....................................................................................................................19 BroadStar Wind Sys. Grp. LLC v. Stephens, 459 Fed. App’x 351 (5th Cir. 2012) .18 Camper v. Calumet Pharm., Inc., 584 F.2d 70 (5th Cir. 1978) ...............................33 Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278 (Fed. Cir. 2008) .26 Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993) ...............................26 City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997) ........................17 City of El Cenizo v. State of Texas, 264 F. Supp. 3d 744 (W.D. Tex. 2017). ...........8 City of El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186 (5th Cir. Sept. 25,
2017) .......................................................................................................................9 Collin Cty. v. Homeowners Ass’n for Values Essential to Neighborhoods
(“HAVEN”), 915 F.2d 167 (5th Cir. 1990) ............................................. 25, 26, 28 Cunningham Bros., Inc. v. Bail, 407 F.2d 1165 (7th Cir. 1969) .............................34 Danos v. Jones, 652 F.3d 577 (5th Cir. 2011). ........................................................23 Flast v. Cohen, 392 U.S. 83 (1968) .................................................................. 19, 28 Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for So. Cal., 463
U.S. 1 (1983) ............................................................................................... passim Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787 (5th Cir. 2011) ..........20 Hispanic Interest Coalition of Alabama v. Governor of Alabama, 691 F.3d 1236
(11th Cir. 2012) ....................................................................................................29
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In re Complaint of RLB Contracting, Inc., 773 F.3d 596 (5th Cir. 2014)...............21 Innovative Therapies, Inc. v. Kinetic Concepts, Inc., 599 F.3d 1377 (Fed. Cir.
2010) .....................................................................................................................31 Int’l Society for Krishna Consciousness of Cal., Inc. v. City of Los Angeles, 611 F.
Supp. 315 (C.D. Cal. 1984). .................................................................................15 J.B. Hunt Trans., Inc. v. Innis, 985 F.2d 553 (Table) (4th Cir. 1993).....................34 Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453 (5th Cir. 2005) ..........................29 Lawson v. Callahan, 111 F.3d 403 (5th Cir. 1997) .................................................18 Lowe v. Ingalls Shipbuilding, 723 F.2d 1173 (5th Cir. 1984) .................................25 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................. 18, 25, 29 MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) ............................. 27, 33 Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843 (2014) ...........29 Mission Ins. Co. v. Puritan Fashions Co., 706 F.2d 599 (5th Cir. 1983) ........ 34, 37 Morgan Drexen, Inc. v. CFPB, 785 F.3d 684 (D.C. Cir. 2015) ....................... 32, 34 NUCOR Corp. v. Aceros Y Maquillas de Occidente, 28 F.3d 572 (7th Cir. 1994).30 Ohio v. Nobile & Thompson Co., LPA, 2013 WL 753837 (S.D. Ohio Feb. 27,
2013) .....................................................................................................................17 Orix Credit All., Inc. v. Wolfe, 212 F.3d 891 (5th Cir. 2007)..................................30 Raines v. Byrd, 521 U.S. 811 (1997) .......................................................................29 Republican Party of Guam v. Gutierrez, 277 F.3d 1086 (9th Cir. 2002) ......... 15, 17 Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. 1999) ...........................................11 Rowan Companies, Inc. v. Griffin, 876 F.2d 26 (5th Cir. 1989) .............................27 Schilling v. Rogers, 363 U.S. 666 (1960) ......................................................... 13, 16 Serco Servs. Co., L.P. v. Kelley Co., 1994 WL 715913 (N.D. Tex. May 24, 1994)
..............................................................................................................................35 Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383 (5th Cir. 2003) ........ 27, 36, 37
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State of Missouri ex rel. Missouri Highway and Trans. Comm’n v. Cuffley, 112 F.3d 1332 (8th Cir. 1997) .............................................................................. 15, 16
Steel Co. v. Citizens for a Better Envm’t, 523 U.S. 83 (1998) ................... 13, 24, 33 Steffel v. Thompson, 415 U.S. 452 (1974) ...............................................................27 Stockman v. Federal Election Comm’n, 138 F.3d 144 (5th Cir. 1998). ..................15 Theriot v. Parish of Jefferson, 185 F.3d 477 (5th Cir. 1999) ..................................22 Travelers Ins. Co. v. La. Farm Bureau Fed., Inc., 996 F.2d 774 (5th Cir. 1993) ................................................................ 30, 33, 36, 37 United States v. Alvarez, 210 F.3d 309 (5th Cir. 2000)...........................................33 United States v. Chacon, 742 F.3d 219 (5th Cir. 2014).................................... 12, 13 United States v. Scher, 601 F.3d 408 (5th Cir. 2010) ..............................................11 Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745 (5th Cir. 2009) ......... 19, 26, 29 Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 880 (N.D.
Tex. 2008)...............................................................................................................8 Waste Connections, Inc. v. Chevedden, 554 Fed. App’x 334 (5th Cir. 2014).........27 William v. Parker, 843 F.3d 617 (5th Cir. 2016).....................................................26 Wilton v. Seven Falls Co., 515 U.S. 277 (1995) ............................................... 32, 35 Federal Statutes 28 U.S.C. § 1331 ......................................................................................................13 28 U.S.C. § 1404 ......................................................................................................35 28 U.S.C. § 2201 ............................................................................................... 13, 22 42 U.S.C. § 1983 ………………………………………………………………... 16 State Statutes and Regulations Tex. Gov’t Code § 752.051......................................................................................21 Tex. Gov’t Code § 752.053............................................................................. 2, 3, 24 Tex. Code Crim. Proc. art. 2.251. ..............................................................................3
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Tex. Const. art. III, § 39.............................................................................................3 Tex. Penal Code § 39.07 ......................................................................................3, 19 Tex. Gov’t Code § 752.056..................................................................................3, 19 Other Authorities 13D Wright & Miller, Federal Practice & Procedure § 3566 (3d ed. 2017) .... 13, 17 Fed. R. Civ. P. 42 .....................................................................................................35
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JURISDICTIONAL STATEMENT The Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF ISSUE PRESENTED FOR REVIEW Whether the district court properly dismissed the State of Texas’s request for a declaration that its newly-enacted law is valid under federal law.
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INTRODUCTION Just before midnight on a Sunday, mere hours after the Governor signed Senate Bill 4 (“SB4”) into law, the State of Texas filed this lawsuit asking to have its new law declared constitutional. As defendants, the State named municipalities and local officials who had criticized SB4 leading up to its enactment, along with a non-profit civil rights organization. After lawsuits challenging SB4 were filed in a different division, the State asserted that all challenges would have to be transferred to the division the State had chosen on the evening of enactment. Instead, however, the challenges were consolidated in the other venue, where they have made significant progress, including hundreds of pages of briefing on the merits, an all-day evidentiary hearing, a 94-page decision by the district court, and an appeal to this Court. The district court properly dismissed Texas’s unusual suit. Under binding Supreme Court precedent, federal district courts lack statutory jurisdiction over suits by States seeking preemptive declarations that state regulations comply with federal law. Indeed, Texas has ample means to enforce SB4 in its own courts, with penalties that include fines, prosecution, and removal from office. It faced no imminent harm when it filed this lawsuit, four months before SB4 would even go into effect. Texas claims that the defendants’ criticism of SB4 and eventual legal challenges harmed the State in various ways, but a State has no cognizable interest
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in punishing critics or preempting possible legal challenges. And as the natural defendant, the State has no right to dictate where and when injured parties must seek judicial review, even if it beats them to the courthouse on the evening it enacts a new law.
The State’s preemptive lawsuit therefore serves no purpose. The validity of SB4 will be resolved in the separate case where all challenges are already consolidated. Allowing this declaratory suit to proceed would needlessly waste judicial resources and deny the natural plaintiffs their traditional choice of timing and venue. It would invite the State and other governments to file day-of preemptive lawsuits every time they enact controversial laws. And, perhaps worst of all, it would allow the State to put its residents to the expense of litigation any time they criticize a new piece of legislation—as Texas did here. The Court should affirm the district court’s dismissal of this case.
STATEMENT OF THE CASE A. Senate Bill 4. The State enacted SB4 on May 7, 2017. ROA.292-307. SB4 seeks to ensure that local police in Texas spend their time and resources on immigration enforcement. Among other things, it forbids policies and practices that “materially limit” police officers, sheriff’s deputies, and all other local employees from helping enforce federal immigration law. Tex. Gov’t Code § 752.053(a)(1)-(2), (b). It
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punishes local officials who “endorse” such policies or practices. Id. § 752.053(a)(1). And it requires Texas jail officials to comply every time federal immigration officers ask them to extend a person’s detention, unless the person can prove their citizenship or lawful immigration status. Tex. Code Crim. Proc. art. 2.251(a).
The State elected to include multiple severe penalties to enforce SB4. Local government officials and employees who restrict subordinates’ ability to engage in immigration enforcement are subject to daily penalties of up to $25,500. Tex. Gov’t Code § 752.056. Elected and appointed officials can be forcibly removed from office for a single violation. Id. § 752.0565. And a law enforcement leader who knowingly fails to hold a person for ICE is subject to criminal prosecution and up to a year in jail. Tex. Penal Code § 39.07. These penalties are imposed in state courts, which must give an action to remove a non-compliant official “precedence” over other matters. Tex. Gov’t Code § 752.0565(b).
Under Texas law, a bill cannot go into immediate effect unless two thirds of all state legislators vote for it. Tex. Const. art. III, § 39. SB4 failed to meet that threshold, and so its effective date was set for September 1, 2017—four months after enactment. See SB4 § 7.02.
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B. This Lawsuit. 1. Governor Abbott signed SB4 into law on Sunday evening, May 7. A few hours later, just before midnight, the State filed this case in the Austin Division of the Western District of Texas, seeking a declaration that the just-enacted law was constitutional and not preempted. ROA.21, 46. As defendants, the State named a non-profit civil rights law firm, two municipalities, and several local officials who had expressed opposition to SB4 while it was being debated in the Legislature.1 ROA.25-27. The complaint alleged that the non-profit and officials were all “publicly hostile” to SB4’s policies and had “publicly endorsed” limitations on local immigration enforcement, as evidenced by their pre-SB4 policies and “through various public statements.” ROA.22, 34, 35 (Compl. ¶¶ 3-5, 104, 107, 112); see also ROA.251, 252, 275, 276 (Am. Compl. ¶¶ 9, 10, 14, 15, 205, 210). The State also noted Travis County’s policy of limiting the time and resources its sheriff’s deputies devote to immigration enforcement. The State alleged that this policy had been revised even “after SB4 was introduced in the Texas Legislature,” and that a county official had “publicly endorsed” it. ROA.34 (Compl. ¶¶ 105, 107). Even though Texas had enacted SB4’s enforcement provisions just hours earlier, the 1 The defendants were Travis County, the City of Austin, multiple officials from both municipalities, and the Mexican American Legal Defense and Educational Fund.
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complaint asserted that, if Travis County maintained its policy once SB4 took effect, “Texas has no adequate remedy at law.” ROA.43 (Compl. ¶ 170); see ROA.42, 45, 46 (Compl. ¶¶ 153, 186, 201).
2. On May 8, the day after Texas enacted SB4 and filed its “preemptive[]” suit, Br. 14, the first challenge to SB4 was filed in the San Antonio Division by the City of El Cenizo and co-plaintiffs. City of El Cenizo v. State of Texas, No. 5:17cv-404 (W.D. Tex.). The plaintiffs asserted both constitutional and preemption claims, and sought an injunction barring SB4’s enforcement. Another challenge was filed by El Paso County and co-plaintiffs on May 22. El Paso County v. State of Texas, 5:17-cv-459 (W.D. Tex.). The State had not sued any of the El Cenizo or El Paso plaintiffs in its preemptive suit. But on May 24, the State moved to transfer their cases to the Austin Division, arguing that because the State filed its declaratory suit hours before any challenges were filed, the challenges could not proceed elsewhere. ROA.168. On May 31, the State filed an amended complaint in the present case, adding all of the El Cenizo and El Paso challengers as defendants. ROA.248.
On June 1, the City of San Antonio and co-plaintiffs filed another challenge against SB4 in the San Antonio Division. City of San Antonio v. State of Texas, 5:17-cv-489 (W.D. Tex.). On June 6, Judge Garcia in San Antonio consolidated the El Paso and San Antonio challenges into the El Cenizo case. City of El Cenizo
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v. State of Texas, No. 5:17-cv-404 (W.D. Tex.), ECF No. 27. Within several weeks, four municipalities—Austin, Travis County, Dallas, and Houston—moved to intervene in the consolidated action. Id., ECF Nos. 33, 37, 67, 99. As a result, by June 2017, every case challenging SB4 was consolidated in the same division before the same district judge. None has ever been filed in any other division.
Nevertheless, the State moved to transfer and consolidate every one of these challenges with the declaratory judgment action it filed the day it enacted SB4. ROA.308, 312, 421, 425. The State claimed that by filing the first case related to SB4, it was entitled to consolidate every forthcoming challenge to the statute with its own case—in the forum of its choosing. ROA.428, 449, 545. The defendants in Texas’s declaratory case moved to dismiss, arguing that the court lacked jurisdiction and, in any event, should dismiss in its discretion. ROA.571-74, 60609.
Meanwhile, the challenges in San Antonio moved forward. All plaintiff groups filed motions for preliminary injunction, numerous amici filed briefs, and the United States filed a statement of interest. The district court held an all-day hearing on June 26, where the parties took oral testimony and presented oral argument, followed by post-hearing briefing from all parties. City of El Cenizo v. State of Texas, No. 5:17-cv-404 (W.D. Tex.), ECF No. 140.
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C. The Decision Below. The district court, per Judge Sam Sparks, dismissed this case for lack of jurisdiction on August 9, 2017. ROA.635-45. First, it rejected the State’s standing arguments. Texas had maintained that it did not need to have standing in its declaratory suit, so long as the defendants would have had standing in their own suit; the district court disagreed, explaining that a declaratory judgment plaintiff is not “exempt from Article III’s standing requirements.” ROA.641. The State had also alleged that the local entities it sued were planning to violate SB4 once it took effect, citing their public advocacy against the law, and the fact that they did not change their policies prior to SB4’s enactment and effective date; the district court, however, found “no evidence” that any of the defendants planned to violate SB4. ROA.643. Second, the district court described the problems that would result from allowing a declaratory suit like Texas’s to proceed. After noting the progress of the challenges to SB4 in the San Antonio Division, ROA.638, the court explained that it would be a waste of “judicial resources” to entertain the State’s declaratory judgment action. ROA.644. And it would “open a Pandora’s box” by “invit[ing] every local government to seek a court’s judicial blessing on a law prior to it taking effect.” ROA.644 (quotation marks omitted). The district court further cited a case where the court called preemptive suits to declare a law’s validity
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“troubl[ing]” and “premature,” and where the court explained that it would dismiss the declaratory claim in its discretion, even if it had jurisdiction. Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 880, 884-85 (N.D. Tex. 2008) (cited ROA.644).2
D. Subsequent Developments. After Judge Sparks dismissed the Austin action, Judge Garcia in San Antonio preliminarily enjoined parts of SB4 on August 30, 2017. In a 94-page opinion, the court addressed numerous justiciability questions and ruled on the merits of the plaintiffs’ First Amendment, Fourth Amendment, Fourteenth Amendment, and preemption claims. City of El Cenizo v. State of Texas, 264 F. Supp. 3d 744 (W.D. Tex. 2017). The State appealed the preliminary injunction the next day, on August 31. That same day, it also filed a notice of appeal in the present case. ROA.647. On September 5, the State filed a motion to stay the San Antonio preliminary injunction pending appeal. In the San Antonio cases, the stay motion and merits appeal were set for highly expedited schedules. On September 25, a motions panel of this Court partially stayed the preliminary injunction entered by the San Antonio district
2 The district court also recognized that even if the State had standing, its claims may not be ripe. ROA.643 n.6.
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court. City of El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186 (5th Cir. Sept. 25, 2017) (per curiam). Merits briefing in that case was completed on October 27, the Court held oral argument on November 7, and the case is under submission.
SUMMARY OF ARGUMENT I. The district court does not have statutory subject-matter jurisdiction over this case. The Supreme Court has held that federal district courts’ original jurisdiction does not extend to preemptive suits by States to have their laws declared valid. As the Court explained, States have no need to preempt challengers with declaratory suits like Texas’s, because States have ample means to enforce their own laws in their own courts. Texas’s suit is foreclosed by that rule, because it seeks nothing more than a declaration that SB4 is valid under federal law. The Court should affirm on this basis alone. II. The State lacks standing, because it faces no cognizable injury, and certainly none that a declaration could redress. It filed this lawsuit hours after enacting SB4, months before the statute went into effect. All it has alleged is that local officials criticized SB4, that those officials later challenged SB4 in court, and that the defendants did not change their policies months in advance of SB4’s effective date. None of those circumstances causes the State any injury. Critical statements do not imply any intention to violate the law. Neither does filing a lawsuit and
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asking a court to review a statute’s validity. And even if one of the defendants had somehow intended to violate SB4—and thereby face criminal liability, civil fines, and removal from office—a declaratory judgment would not have redressed the violation.
Aware that it has no real injuries to assert, the State advances the sweeping alternative theory that it can have standing without an injury in fact, as long as it sues someone who could challenge SB4. That is wrong. A declaratory judgment plaintiff, like every other plaintiff, must satisfy Article III’s core requirements of injury, causation, and redressability before it can invoke federal jurisdiction. Unlike alleged patent infringers, alleged libelers, potential criminal defendants seeking pre-enforcement review, and other plaintiffs who seek declaratory judgments to forestall actual liability, the State faced no liability or other injury.
Finally, even if an imminent suit could provide standing, the State filed this case before any of the current defendants threatened to sue. While challenges were filed soon after, a plaintiff must establish standing as of the date it files its lawsuit. As this Court has held, post-filing conduct is irrelevant.
III. Dismissal is appropriate even if the district court had statutory jurisdiction and Texas had standing. Courts may dismiss wasteful or unnecessary declaratory suits, especially preemptive ones, and especially once the natural plaintiff files the anticipated challenge. As the district court correctly
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recognized—and this Court may independently decide—there is no reason to retain jurisdiction over this case, and every reason not to.
The State filed this case for the avowed purpose of preempting challenges to SB4 and forcing them to be brought in the State’s chosen venue. But as the natural defendant, it is not the State’s choice to decide where, when, and against whom its laws are reviewed. Entertaining the State’s unusual suit would invite every state and local government that passes a controversial new law to rush into court and seek a declaration of the law’s validity against anyone who has previously criticized it.
Every challenge to SB4 is currently consolidated in a single division before the same judge. The court in those cases has already expended considerable resources reviewing the claims against SB4, and the challenges are already before this Court on appeal. As a result, it would be a remarkable waste of judicial resources to adjudicate the State’s suit in parallel, or to transfer the challenges to a division where the district court would have to start from scratch.
STANDARD OF REVIEW The Court reviews the district court’s legal conclusions de novo and factual findings for clear error. Rivera-Sanchez v. Reno, 198 F.3d 545, 546 (5th Cir. 1999); United States v. Scher, 601 F.3d 408, 412 (5th Cir. 2010). The district court’s decision to dismiss a claim brought under the Declaratory Judgment Act is
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reviewed for abuse of discretion. Am. States Ins. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. 1998). The Court “may affirm the district court’s judgment on any basis supported by the record.” United States v. Chacon, 742 F.3d 219, 220 (5th Cir. 2014).
ARGUMENT The district court was correct to dismiss this case for at least three reasons. First, as the Supreme Court has held, federal courts lack subject-matter jurisdiction over claims by States seeking advance declarations that their enactments comply with federal law. Second, Texas lacks Article III standing because it faces no cognizable injury, and certainly none that a declaration could redress. Third, in any event, the district court properly recognized that dismissal is required by the relevant factors governing the propriety of declaratory relief. This Court should affirm. I. The District Court Lacks Statutory Jurisdiction. 1. This case is controlled by the Supreme Court’s decision in Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for So. Cal., 463 U.S. 1, 20-21 (1983), which held that federal courts lack original subject-matter jurisdiction over suits by States seeking declarations that their regulations comply with federal law.3
3 Although the district court did not address this issue, this Court may affirm on any ground supported by the record, Chacon, 742 F.3d at 220, and “[e]very federal
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The Declaratory Judgment Act “is not an independent source of federal jurisdiction.” Schilling v. Rogers, 363 U.S. 666, 677 (1960); see 28 U.S.C. § 2201 (titled “Creation of remedy”). Instead, for statutory jurisdiction, declaratory judgment plaintiffs must look to the federal-question statute, which provides district courts with “original jurisdiction of all civil actions arising under” federal law. 28 U.S.C. § 1331. But in Franchise Tax Board, the Supreme Court squarely held that such jurisdiction does not extend to “suits by the States to declare the validity of their regulations despite possibly conflicting federal law.” 463 U.S. at 21. Therefore, “such a suit is not within the original jurisdiction of the United States district courts.” Id. at 22. See 13D Wright & Miller, Federal Practice & Procedure § 3566 (3d ed. 2017) (“[T]here is no federal jurisdiction of a suit by a state to declare the validity of its regulations despite possibly conflicting federal law.”). This rule is fatal to Texas’s suit, which seeks nothing more than “to declare the validity of” SB4 “despite possibly conflicting federal law.” Franchise Tax Board, 463 U.S. at 21; see ROA.288 (Prayer for Relief) (seeking only declaratory judgment, and identifying possibly conflicting federal laws).
The Court in Franchise Tax Board acknowledged that, ordinarily, federal courts take “jurisdiction over declaratory judgments in which, if the declaratory
appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts,” Steel Co. v. Citizens for a Better Envm’t, 523 U.S. 83, 95 (1998) (quotation marks omitted).
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judgment defendant brought a coercive action to enforce its rights, that suit would necessarily present a federal question.” 463 U.S. at 19. But “a State’s suit for a declaration of the validity of state law is sufficiently removed from the spirit” of the federal-question statute that it “is not within the original jurisdiction of the United States district courts.” Id. at 21-22.
The Court identified “good reasons” why federal jurisdiction should not extend to preemptive suits like Texas’s. Id. at 21. “States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit.” Id. Indeed, States “have a variety of means by which they can enforce their own laws in their own courts”—like SB4’s criminal penalties, civil fines, and removal from office—and States “do not suffer” by having to use those means to enforce their laws. Id.
The relevant circumstances in Franchise Tax Board were the same as in this case. There, a California tax board sued a trust seeking a declaration that ERISA did not preempt a state tax law that applied to the trust, id. at 6-7; the trust had maintained that ERISA did preempt the state tax law, id. at 6, and the Court assumed that the trust “could have sought an injunction” of the state law on those grounds, id. at 19-20. The exact same is true here. Texas’s whole theory of standing is predicated on the fact that the State and the defendants disagree about
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SB4’s validity under federal law, and that the defendants can seek to enjoin the State’s law. Br. 17-23.
Following Franchise Tax Board, the lower courts have consistently rejected governmental attempts to obtain declarations against those who might challenge their laws. See, e.g., State of Missouri ex rel. Missouri Highway and Trans. Comm’n v. Cuffley, 112 F.3d 1332, 1336-37 (8th Cir. 1997) (“[A] declaratory judgment suit brought by a state to uphold the constitutionality of its action is not within the federal-question jurisdiction of the federal courts.”); Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1090 (9th Cir. 2002) (same in a suit between a state and its sub-entities); Int’l Society for Krishna Consciousness of Cal., Inc. v. City of Los Angeles, 611 F. Supp. 315, 318 (C.D. Cal. 1984).
2. The State’s attempts to distinguish Franchise Tax Board are unpersuasive. First, the State points out that Franchise Tax Board dealt with statutory jurisdiction, not standing. Br. 24. But the State needs both for its suit to proceed. If a court lacks subject-matter jurisdiction, it need not even consider standing. Stockman v. Federal Election Comm’n, 138 F.3d 144, 150-51 (5th Cir. 1998).
Second, the State claims that, unlike in Franchise Tax Board, “there is no federal regulation at issue here that would allow an injunctive suit by the defendants.” Br. 24. But its principal standing contention is that the defendants
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can sue to enjoin SB4, and it has never claimed that they lack a cause of action in the San Antonio cases. Br. 20 (stating that the defendants have “a live federal cause of action”). Moreover, those challenges are grounded in a “federal regulation” that allows for an “injunctive suit” against the State, Br. 24: 42 U.S.C. § 1983 (providing for a “suit in equity”).
Third, the State suggests that this case is different because it does not involve ERISA and includes constitutional claims. Br. 24-25. But Franchise Tax Board’s rule is categorical: “federal courts should not entertain suits by the States to declare the validity of their regulations”; “a State’s suit for a declaration of the validity of state law . . . is not within the original jurisdiction” of federal district courts. 463 U.S. at 21-22. Moreover, the “good reasons” for the rule apply equally no matter what federal law is at issue.4 463 U.S. at 21. Courts have consistently refused similar attempts to artificially confine Franchise Tax Board. See Cuffley, 112 F.3d at 1336 (holding that Franchise Tax Board applies to constitutional claims); Republican Party of Guam, 277 F.3d at 1090 (rejecting exception for disputes between state entities); Ohio v. Nobile & Thompson Co., LPA, 2013 WL 753837, at *6 (S.D. Ohio Feb. 27, 2013) (rejecting ERISA-based limit); 13D Wright & Miller, Federal Practice and Procedure § 3566 (3d ed. 2017)
4 The Court mentioned ERISA’s jurisdictional provision, id. at 21, but only to explain that the provision did not confer jurisdiction over the state’s claim.
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(summarizing the rule in Franchise Tax Board as being, simply, that “there is no federal jurisdiction of a suit by a state to declare the validity of its regulations despite possibly conflicting federal law”).
Finally, Texas suggests this case is different because, unlike Franchise Tax Board, it was not removed from state court. Br. 23-24. But the relevant legal question—whether the district court has original jurisdiction—is exactly the same in both situations, because removal jurisdiction depends entirely on “whether the case originally could have been filed in federal court.” City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 163 (1997) (citing 28 U.S.C. § 1441(a)); see Franchise Tax Board, 463 U.S. at 21-22 (denying removal because “original jurisdiction” was lacking). Texas notes that the Court, in a footnote, mentioned “considerations of comity,” Br. 24, but the Court did so to justify the broadlyapplicable rule it was adopting, not to limit the rule to the removal context. 463 U.S. at 21 n.22.
The Supreme Court has thus foreclosed the precise kind of lawsuit the State has brought. This ground alone is a dispositive basis to affirm.
II. Texas Lacks Standing. Even if this kind of suit fell within the district court’s subject-matter
jurisdiction, the State lacks standing to advance its declaratory claims. The State has not established any cognizable injury, and certainly none that a declaratory
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judgment would redress. The only facts the State has put forward to support standing are the defendants’ pre-SB4 policies, public statements criticizing the bill, and legal filings that post-date Texas’s complaint. On those facts, the State argues three theories of standing: that the policies and critical “statements implicitly acknowledged” an intent to violate SB4, Br. 9, 35; that those same critical statements proved an intent to sue imminently, Br. 26; and, most sweepingly, that the State has standing to sue any regulated party, along with anyone else who could sue the State, Br. 16-17. Each of those theories is wrong.
To have standing, a plaintiff must face an “actual or imminent” injury in fact that is “redressable” by a favorable decision on the merits. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “Standing to seek declaratory judgment is subject to these same requirements.” BroadStar Wind Sys. Grp. LLC v. Stephens, 459 Fed. App’x 351, 356 (5th Cir. 2012) (unpublished); see Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997) (declaratory judgment standards are “identical” to normal Article III requirements); accord Br. 16. Therefore, to seek a declaratory judgment, a plaintiff must establish that it faces an injury in fact that would be redressed by a declaration. “The declaratory judgment plaintiff must establish that this requirement was satisfied at the time the complaint was filed— post-filing conduct is not relevant.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009).
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The standing inquiry asks “not whether the issue itself is justiciable,” but whether the plaintiff is the “proper party to request an adjudication of [that] particular issue.” Flast v. Cohen, 392 U.S. 83, 100 (1968). As a State whose laws are presumed constitutional until a court rules otherwise, see Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 361 (5th Cir. 2005), Texas is not a proper party to seek a preemptive declaration of SB4’s validity. Without an injury of its own, the State’s suit is a request for an impermissible “advisory opinion.” Flast, 392 U.S. at 96.
A. Speculation About Violations of SB4 Does Not Create Standing. The State maintains that it needed a declaratory judgment to address future violations of SB4. Br. 29 (asserting “[p]ending violations” of SB4); Br. 31 (describing the State’s harm from being “unable to enforce its laws”); Br. 32 (describing harm of “not [being] able to enforce” SB4 because of “Defendants’ course of conduct”). This is a strange contention in light of SB4’s own enforcement mechanisms—fines, termination, imprisonment—which the State itself chose. Gov’t Code § 752.056, .056; Penal Code § 39.07. The State fails to explain how a declaratory judgment would redress violations that its own enforcement mechanisms would not. In any case, the State produced nothing to prove that it faced any future violations of SB4. The only evidence it has ever cited are legal arguments in filed
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complaints, public statements criticizing SB4, and policies adopted before SB4 was enacted. The State is wrong to suggest that, by criticizing a bill or seeking judicial review, local officials somehow demonstrate a plan to violate state law.
1. The district court rejected the State’s claim that it faced pending violations of SB4. As the court found, “[t]he State has produced no evidence that at the time of filing suit,” violations of SB4 were imminent or likely. ROA.643. That finding was not “clearly erroneous.” Williamson v. Tucker, 645 F.2d 404, 413 (1981) (clear error review for district court’s resolution of disputed facts going to jurisdiction). Nor was the district court required to credit the State’s “conclusory statements” that violations were imminent, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see ROA.254-62 (Am. Compl. ¶¶ 35, 40, 43, 48, 66, 72, 78, 82, 92, 97, 103, 108) (bare allegations that the defendants plan to violate SB4), or the State’s “implausible” equation of criticism and legal challenges with plans to violate the law once in effect, Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011).
The State does not address these standards. It simply asserts that its allegations “must be taken as true at the pleading stage.” Br. 35. But it is blackletter law that a district court need not accept conclusory or implausible allegations, and may “resolve factual disputes” in deciding a motion to dismiss for lack of jurisdiction. In re Complaint of RLB Contracting, Inc., 773 F.3d 596, 601
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& n.7 (5th Cir. 2014) (“No presumptive truthfulness attaches to the plaintiff’s allegations.”) (quotation marks and alterations omitted).
In any case, the district court’s conclusion was correct. The State plainly did not face any imminent violations of SB4. To begin with, at the time it filed suit— hours after the Governor signed the bill on May 7—no violations could occur, because the law would not go into effect for almost four months, on September 1. And the civil-rights organizations the State sued were not capable of ever violating SB4, which only applies to government entities and officials. Tex. Gov’t Code § 752.051(5). The State could never have standing to sue the organizational defendants on this basis.
More fundamentally, the State’s brief, like its complaint, is devoid of any evidence that anyone planned to violate SB4 once the statute took effect and its harsh penalties kicked in. The State cites legal allegations from the complaints in the San Antonio cases, which were filed after the State filed this case. Br. 29, 31, 34, 35. It cites a policy that Travis County adopted in January 2017—four months before SB4 was enacted and a full eight months before it took effect. Br. 7, 30; see also Br. 31 (citing El Cenizo policy from 1999). And it cites statements by elected officials publicly criticizing SB4, which were made after Texas filed this suit,5 and
5 Many of the statements the State cites were not alleged in the complaint or presented to the district court. See, e.g., Br. 8, 9, 30, 35. The State may not rely on
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none of which evinces a plan to violate SB4 and incur removal from office, tens of thousands of dollars in fines, and possible jail time.6 Br. 30, 35. The Court should reject Texas’s assumption that law enforcement officials would disregard state law simply because they lobby against a bill or seek judicial review.
2. Even if the State could somehow prove that some defendants intended to violate SB4 once the law took effect, a declaratory judgment would not redress any violations. A declaratory judgment simply “declare[s] the rights and other legal relations” of the parties. 28 U.S.C. § 2201(a). It does not order either party to do or not do anything. The State’s imminent-violation theory of standing therefore fails not just for lack of injury, but also for lack of redressability. See Danos v. Jones, 652 F.3d 577, 584 (5th Cir. 2011) (no standing to seek declaratory judgment because a declaration would not redress the asserted injury).
these statements on appeal. Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider new evidence furnished for the first time on appeal and may not consider facts which were not before the district court at the time of the challenged ruling.”). 6 See also, e.g., ROA.277 (allegation that local official “said SB4 was pointless”); ROA 278 (allegation that defendants “characterize[d] SB4 as a cruel and racially animated law”); ROA.278 (allegation that local official said that SB4 was “‘dangerous and discriminatory’ and that it ‘opens up the door to racial profiling against Hispanics’”); ROA.277 (allegation that official “stated that a city should be able to have their culture reflected in the ordinances, rules, and policies they adopt. In other words, [the official] does not believe the City of Austin . . . must comply with Texas law.”).
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This, of course, does not leave the State “unable to enforce its laws,” as the State claims. Br. 31. The State “can enforce [its] own laws in [its] own courts” and “do[es] not suffer” from “an inability to come to federal court for a declaratory judgment in advance.” Franchise Tax Board, 463 U.S. at 21.
3. The State also appears to argue that it is injured by some of the defendants’ public statements, which failed to give proper respect to the State’s sovereignty. Br. 32 (“The State has a sovereign interest in being properly recognized as a sovereign.”); Br. 32 (critical statements and certain legal allegations “undermine the rule of law by their attack on the proper role of cities vis-à-vis the State”); Br. 34 (injury from officials “purporting to have the authority to pursue their policies despite state law”); Br. 34-35 (injury from legal allegations that SB4 improperly restricted local police autonomy); Br. 35 (injury from criticism of SB4 and promise to “speak truth to power”); Br. 31 (injury of calling SB4 “insulting”).
These are troubling contentions, as the district court recognized. ROA.643 (noting “First Amendment concerns”). The State is not injured when its residents and local officials criticize its laws, articulate legal theories with which it disagrees, or seek judicial review. The Court should emphatically reject these theories of standing, by which the State asserts a right to sue people simply for criticizing the State’s policy choices, either because their critical statements fail to
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“properly recognize[]” the State “as a sovereign,” Br. 32, or because their statements “implicitly acknowledge[]” an intention to violate state law, Br. 9, 35. The State’s view threatens to chill free expression and political dialogue, because it would allow the State to put critics to the expense of litigation every time it passes a controversial new law. Cf. Gov’t Code § 752.053(a)(1) (SB4 provision that local officials may not “endorse” limits on immigration enforcement); ROA.582-83.
B. Other Parties’ Ability to Sue Does Not Give Texas Standing. Texas’s broadest standing theory is that it does not need to have standing at all. According to the State, it does “not need a showing of standing beyond the existence of the declaratory defendant’s cause of action.” Br. 23; see Br. 20 (“[T]he State met the standing requirements” simply by “being across the ‘v.’ from a potential coercive plaintiff asserting a live federal cause of action.”); Br. 17 (arguing that “the existence of a cause of action held by the declaratory defendants” establishes “Texas’s Article III standing”). 1. At the outset, the State has conflated the concepts of Article III standing and a cause of action. See Steel Co., 523 U.S. at 89 (discussing the difference). A plaintiff must have both for its case to proceed. In a declaratory judgment case, “the underlying cause of action” that gets litigated “is the declaratory defendant’s, not the declaratory plaintiff’s.” Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1179 (5th Cir. 1984) (emphasis added). Texas has therefore correctly stated the rule for
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its cause of action: The State does not need one of its own “beyond . . . the declaratory defendant’s cause of action.” Br. 23. Being across the “v.” from a “potential coercive plaintiff” with a “federal cause of action” is enough for these purposes. Br. 20.
But having a cause of action does not mean the State has Article III standing. And while it may borrow the defendants’ causes of action, it cannot somehow borrow the defendants’ standing. The cases the State relies on simply establish that a declaratory plaintiff can litigate the defendant’s cause of action. See Collin Cty. v. Homeowners Ass’n for Values Essential to Neighborhoods (“HAVEN”), 915 F.2d 167, 171 (5th Cir. 1990) (cited Br. 18). The State cites nothing to suggest that it is excused from personally satisfying “the irreducible constitutional minimum of standing.” Lujan, 504 U.S. at 560.
To the contrary: Under Article III, “the plaintiff must have suffered an injury in fact” that is “actual or imminent” and “redressable by a favorable decision” on the merits. Id. at 560-61 (quotation marks omitted, emphasis added). As this Court put it, “[i]f the party invoking federal jurisdiction fails to establish any one of injury in fact, causation, or redressability, then federal courts cannot hear the suit.” William v. Parker, 843 F.3d 617, 621 (5th Cir. 2016) (emphasis added); see Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278, 1291 (Fed. Cir. 2008) (declaratory judgment action “is justiciable under Article III only
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where [] the plaintiff has standing”) (emphasis added). Elsewhere in its brief, the State seems to agree: “A party seeking a declaratory judgment must therefore meet these Article III standing requirements.” Br. 17.
The State’s broadest theory of standing is therefore wrong. The fact that “the defendants claimed an existing cause of action” does not ipso facto cause Texas an injury that a declaratory judgment would redress. Br. 17. As this Court has held, “threats of legal action, alone, cannot create an actual controversy under the Declaratory Judgment Act.” Vantage Trailers, 567 F.3d at 751.
2. The State does not face the kind of injury that creates standing to seek a declaratory judgment. Declaratory judgment plaintiffs have standing when they are “threatened with liability”—criminal, financial, or otherwise—which an “early adjudication” allows them to avoid. HAVEN, 915 F.2d at 170 (cited Br. 18, 25). For instance, when a patent holder threatens to sue for infringement, alleged infringers are put “to an in terrorem choice between . . . growing potential liability for patent infringement and abandonment of their enterprises.” Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 96 (1993) (quotation mark omitted). A declaratory judgment redresses the dilemma of having to choose between those two options—accruing liability or abandoning one’s right to pursue the allegedly infringing activity. See also Franchise Tax Board, 463 U.S. at 21 n.23.
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The same is true in the criminal context. When a person believes he has a right to do something that a criminal law prohibits, a declaratory judgment allows him to test the law’s validity in advance. If the person were to avoid the action for fear of prosecution, he would be giving up his own rights; but if he took the action and was wrong about the law’s validity, he would incur punishment. A declaratory judgment redresses this “dilemma” of having to choose between “abandoning his rights or risking prosecution.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007) (describing Steffel v. Thompson, 415 U.S. 452, 480 (1974)).
Examples abound of plaintiffs seeking declarations to avoid actual or imminent liability. See, e.g., MedImmune, 549 U.S. at 122, 130-31 (injury of paying royalties or facing liability for treble damages); Waste Connections, Inc. v. Chevedden, 554 Fed. App’x 334, 335-36 (5th Cir. 2014) (unpublished) (injury of “spending a significant sum to revise its proxy statement” or face “an SEC enforcement action or liability from other shareholders”); Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 399 n.9 (5th Cir. 2003) (cited Br. 37) (injury of facing “liab[ility] for damages caused by lead paint”); Rowan Companies, Inc. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989) (cited Br. 18) (injury of paying medical costs or facing “liability” and “damage [that] has accrued”) (quotation marks omitted). In each case, the plaintiff had standing because she faced some actual injury, which a declaratory judgment would redress.
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Where a declaratory judgment plaintiff faces “no actual liability,” however, it has no “cognizable interest” in obtaining a declaration, absent some other injury. HAVEN, 915 F.2d at 171. And where a plaintiff faces no cognizable injury of its own, its request for a declaration of the law amounts to an impermissible request for an advisory opinion. Flast v. Cohen, 392 U.S. 83, 100 (1983) (holding that an un-injured plaintiff is not the “proper party to request an adjudication of a particular issue,” even if “the issue itself is justiciable”). That is true for Texas here. It has identified no liability that it would have accrued while SB4’s validity went unlitigated. It has identified no actions it took or activities it avoided to forestall the threat of liability. And it has identified no other injury that a declaratory judgment would redress. See supra Part I.A. Moreover, the State concedes that it believed local officials were “certain[]” to file lawsuits “in advance of SB4’s effective date,” in which the statute’s legality would be adjudicated. Br. 28. The State faced no harm in the meantime.
Nor are the lawsuits themselves a cognizable injury. A State is not injured when its residents seek judicial review of its laws.7 See Hispanic Interest Coalition of Alabama v. Governor of Alabama, 691 F.3d 1236, 1249 (11th Cir. 2012) (States
7 Some cases describe injuries that are cognizable, like “risk[ing] liability for treble damages and attorney’s fees,” using the shorthand “risking suit.” Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 850 (2014). In those circumstances, it is clear that the injury is increased liability, not the suit itself.
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have “no interest in enforcing a state law that is unconstitutional”). And to the extent Texas considers itself injured simply by becoming a litigant, its declaratory suit caused that injury by making Texas a litigant.
C. Even If Threats of Litigation Created Standing, Texas Did Not Identify Any Threats by the Current Defendants When It Filed Suit.
As explained above, “[i]mpending litigation” (Br. 26) does not, by itself, create standing. See supra Part I.B. But even if it did, the State had identified virtually no threats of imminent litigation by the time it filed its complaint, mere hours after SB4 became law. Even though challengers filed lawsuits soon after, a plaintiff must have standing at the moment the complaint is filed. See Lujan, 504 U.S. at 570 n.5 (“[S]tanding is to be determined as of the commencement of suit.”); Vantage Trailers, 567 F.3d at 748 (“post-filing conduct is not relevant” for standing to seek declaratory judgment); Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005) (“The party invoking the jurisdiction of the court cannot rely on events that unfolded after the filing of the complaint to establish its standing.”). And it is the plaintiff’s burden to produce facts that establish its own standing. See Raines v. Byrd, 521 U.S. 811, 818-19 (1997) (“insist[ing] on strict compliance” with the rule that plaintiffs, “based on their complaint, must establish that they have standing to sue”).
The State’s complaint cited only a single statement where a defendant planned to file suit, ROA.36 (Compl. ¶ 114 & n.5), and the State later voluntarily
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dismissed its claims against that defendant, ROA.553-54. The complaint alleged no facts indicating that any of the current defendants would file “imminent litigation.” Br. 26. It simply alleged that some defendants had criticized SB4, and that other defendants had pre-SB4 policies that would have to change once SB4 became effective, four months later. See ROA.25-27. These policies and criticisms do not establish the “certainty” Texas claims. Br. 28. As its own cases demonstrate, in the circumstances where imminent litigation can give rise to standing, see supra Part II.B, far more concrete facts are required to prove that litigation is imminent. See NUCOR Corp. v. Aceros Y Maquillas de Occidente, 28 F.3d 572, 578 (7th Cir. 1994) (cited Br. 26) (“notice letter” promising suit within 60 days); Travelers Ins. Co. v. La. Farm Bureau Fed’n, Inc., 996 F.2d 774, 775 & n.2 (5th Cir. 1993) (cited Br. 37) (multiple demand letters explicitly threatening to sue; five suits already filed); see also Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 897 (5th Cir. 2007) (cited Br. 25-27) (no standing even where the threatened legal filing was already drafted and shared).
As the district court observed, the defendants in this case did not announce any intention to sue until “after the law was signed and the Austin case was filed.” ROA.643 (emphasis added). The critical public statements Texas cited likewise were made “after . . . the Austin case was filed.” ROA.643 (emphasis added). The district court thus did not conclude that, as of the date of the complaint, “Texas
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cities were virtually certain to sue,” as the State claims. Br. 27. Exactly the opposite. As the plaintiff, it was the State’s burden to establish standing, and it failed to do so here.
The defendants’ “later suits” therefore do not “change the fact that” the litigation threats Texas claims did not “exist[] at the time the original complaint was filed.” Innovative Therapies, Inc. v. Kinetic Concepts, Inc., 599 F.3d 1377, 1383 (Fed. Cir. 2010) (upholding dismissal of a declaratory suit on this basis). To hold otherwise would “invite a declaratory judgment plaintiff” to file suit “at the earliest moment,” before it actually has standing to sue. Id. at 1384.
Texas’s impending-litigation theory amounts to the same assertion that it has standing to seek a declaratory judgment against anyone who criticizes its laws, or who “publicly endorse[s]” differing policies. Br. 14. Under its reasoning, any public criticism proves an intent to sue, which creates standing. That theory, like the State’s impending-violations theory, would have troubling First Amendment consequences and should be rejected.
III. The District Court Was Correct to Decline Jurisdiction. 1. Even if the district court had subject-matter jurisdiction, and even if
Texas had standing, dismissal was still appropriate. District courts are free to decline jurisdiction where entertaining a declaratory action would be “a wasteful expenditure of judicial resources,” Wilton v. Seven Falls Co., 515 U.S. 277, 278
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(1995), “deprive[] the [natural] plaintiff of his traditional choice of forum and timing,” Morgan Drexen, Inc. v. CFPB, 785 F.3d 684, 697 (D.C. Cir. 2015), “encourage forum shopping [or] races to the courthouse,” AmSouth Bank v. Dole, 386 F.3d 763, 788 (6th Cir. 2004), or “serve no useful purpose,” Odeco, Inc. v. Bridgett, 22 F.3d 1093 (5th Cir. 1994) (unpublished).
Each of those factors independently warrants dismissal here, as the district court recognized. The court’s dismissal was “driven in large part” by a desire not to waste “judicial resources.” ROA.644. Indeed, as the court noted, the plaintiffs in the San Antonio cases had already filed preliminary injunction motions, “submitted evidence,” and “presented arguments” on “the same legal issues” as this case. ROA.638. Even worse than wasting resources, entertaining the State’s claims would “open a Pandora’s box and invite every local government to seek a court’s judicial blessing on a law prior to it taking effect.” ROA.644 (quotation marks omitted). In short, the district court saw no reason to retain jurisdiction and many reasons to reject it.
The district court did not explicitly issue a separate holding that discretionary dismissal was appropriate, because it dismissed for lack of standing. Cf. Steel Co., 523 U.S. at 94-95 (courts must address jurisdiction first). But the court clearly stated that it had no intention of entertaining this unusual suit, as it highlighted numerous factors strongly favoring dismissal: the conservation of
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judicial resources, the progress of the San Antonio challenges, and the danger of encouraging states to race challengers to the courthouse to have their new laws declared valid. Under these circumstances, this Court should uphold dismissal even if it concludes that Texas has standing. The district court’s reasoning makes it crystal clear that “remand would be futile and a waste of judicial resources.” Austin v. Davis, 693 Fed. App’x 342, 343 (5th Cir. 2017) (unpublished); see United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (same); Camper v. Calumet Petrochem., Inc., 584 F.2d 70, 71 (5th Cir. 1978) (“Remand would be futile and mere academic error correcting.”) (quotation marks omitted).
2. In any event, this Court may decide for itself whether dismissal is proper. See, e.g., Travelers, 996 F.2d at 779. Doing so here would be “judicious,” id., because the relevant considerations all favor dismissal.8
The State filed this lawsuit hours after enacting SB4, for the avowed purpose of preempting challengers and forcing them to litigate in the State’s chosen venue. As it concedes in its brief, it believed “that defendants’ lawsuit was to be filed imminently, in advance of SB4’s effective date.” Br. 28; see Br. 39 (State believed
8 The Court declined to reach the dismissal factors “[u]nder the[] circumstances” of MedImmune. 549 U.S. at 136. Unlike in the present case, the district court had expressed “serious misgivings” about dismissing the case, practical considerations had been “irrelevant” to the lower courts, and the parties had not even briefed the dismissal factors below. Id.; compare ROA.571-74, 606-09 (briefing below). The Court’s reliance on these circumstances suggests it would have reached this question had the circumstances been different.
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localities were “on the precipice of litigation”). Accordingly, there was no prospect of ongoing uncertainty to resolve. Instead, the State filed suit to avail itself of “the first-to-file rule” and ensure that all challenges would be “heard in the Austin Division.” Br. 38-39.
Courts typically frown on that sort of behavior. See, e.g., Morgan Drexen, 785 F.3d at 697 (“The anticipation of defenses is not ordinarily a proper use of the declaratory judgment procedure.”); J.B. Hunt Trans., Inc. v. Innis, 985 F.2d 553 (Table), at *2 (4th Cir. 1993) (“Declaratory relief should not be used to deprive the real plaintiff of the choice of forum.”); Mission Ins. Co. v. Puritan Fashions Co., 706 F.2d 599, 602 & n.3 (5th Cir. 1983) (“anticipatory suits are disfavored”); Cunningham Bros., Inc. v. Bail, 407 F.2d 1165, 1167 (7th Cir. 1969) (“[T]o compel potential . . . plaintiffs to litigate their claims at a time and in a forum chosen by the alleged tort-feasor would be a perversion of the Declaratory Judgment Act.”). And courts certainly do not defer to first-filed declaratory actions once the plaintiff-in-fact has filed the anticipated lawsuit. See, e.g., AmSouth Bank, 386 F.3d at 786 (“[C]ourts will decline to hear the [first-filed declaratory] action in favor of a subsequently-filed coercive action by the ‘natural plaintiff.’”); Wilton v. Seven Falls Co., 41 F.3d 934, 934 (5th Cir. 1994) (declining to proceed with first-filed declaratory suit filed to “[a]nticipat[e] litigation”), aff’d, 515 U.S. 277 (1995); Travelers, 996 F.2d at 779 n.15 (rejecting the “quixotic”
34

Case: 17-50763 Document: 00514351542 Page: 50 Date Filed: 02/16/2018
argument that the order of filing trumps the dismissal factors); Serco Servs. Co., L.P. v. Kelley Co., 1994 WL 715913, at *1 (N.D. Tex. May 24, 1994), aff’d, 51 F.3d 1037 (Fed. Cir. 1995) (“[T]he filing of an anticipatory suit trumps the ‘firstfiled’ rule.”).
The State claims that this case should proceed to “avoid[] a multiplicity of lawsuits in various forums.” Br. 37. But even if lawsuits had been filed in multiple venues, which they were not, the State could have used the exact same consolidation mechanisms it invoked in this case. See 28 U.S.C. § 1404 (transfer); Fed. R. Civ. P. 42(a)(2) (consolidation). In fact, if it wanted to consolidate multiple challenges, it was always going to have to file transfer and consolidation motions; its preemptive suit did not change that. The State could have simply moved to consolidate wherever the first injunctive action was filed. Thus, the possibility of needing to file a consolidation motion does not justify allowing the State, as the defendant-in-fact, to dictate where consolidation must occur.
By contrast, in cases where a multiplicity of suits has supported retaining jurisdiction over a declaratory action, the defendant-in-fact faced suits that could not be consolidated directly (and possibly not at all), because plaintiffs-in-fact were suing in multiple state courts. See Travelers, 996 F.2d at 777 (declaratory plaintiff faced “suit in multitudinous forums in Louisiana and Mississippi”); Sherwin-Williams, 343 F.3d at 398 n.8 (explaining that there was “no assurance
35

Case: 17-50763 Document: 00514351542 Page: 51 Date Filed: 02/16/2018
that all the anticipated state court suits could be removed”). In such cases, the defendant-in-fact would not simply have to file a consolidation motion, as in this case, but would also have to repeatedly litigate removal—and removal may not have even been possible.
Moreover, at the time the State filed this case, it gave no reason to think it would face litigation in an unmanageable multitude of forums. Its complaint cited only a single pledge to sue, ROA.36 (Compl. ¶ 114 & n.5), from a non-profit law firm whom the State subsequently dismissed from the case. ROA.553-54. And by the time of its amended complaint, every single challenge to SB4 had been filed in the same venue. By contrast, in the case the State relies on, a declaratory plaintiff faced up to seventeen lawsuits in different appellate circuits across two states, three of which had already been filed. Travelers, 996 F.2d at 777 & n.9. Even there, the Court only retained jurisdiction after observing that the declaratory case had progressed the farthest, and that judicial economy “overwhelmingly support[ed] retention of the case.” Id. at 779. See also Sherwin-Williams, 343 F.3d at 398 (declaratory plaintiff faced lawsuits in multiple state and federal courts).
Regardless, the multiplicity of forums that the State claims to fear did not come to pass. No challenge was ever filed outside the San Antonio Division, and all the challenges are currently consolidated there. The State’s own case is the only source of multiplicity. And the San Antonio district court has now invested
36

Case: 17-50763 Document: 00514351542 Page: 52 Date Filed: 02/16/2018
significant resources reviewing the merits of the claims against SB4, which have already reached this Court on appeal. Now, even more than when the district court ruled, retaining jurisdiction over the State’s suit would be a monumental waste of judicial resources. See, e.g., Mission, 706 F.2d at 602-03 (declaratory actions can be dismissed based on post-filing events, including “the pendency” of another case that “will completely settle the disputed issues”).
Retaining jurisdiction would also reward litigation behavior that this Court should discourage. States and localities enact controversial policies all the time. Those policies elicit robust debate from many quarters about their wisdom and legality. Thousands of them trigger legal challenges each year. Texas’s position would invite all of those governments to file immediate complaints to dictate when and where challenges must be brought, simply by citing the possibility of multiple lawsuits. Most troublingly of all, this would allow States to single out anyone who criticizes their new laws, making constituents think twice about speaking out against regulations with which they disagree.
Thus, even if the Court were to remand, it would be an abuse of discretion for the district court to retain jurisdiction. See, e.g., AmSouth Bank v. Dale, 386 F.3d 763, 791 (6th Cir. 2004) (abuse of discretion not to dismiss where “the declaratory judgments would serve no useful purpose” and the case was filed to anticipate a defense); BASF Corp. v. Symington, 50 F.3d 555, 559 (8th Cir. 1995)
37

Case: 17-50763 Document: 00514351542 Page: 53 Date Filed: 02/16/2018

(abuse of discretion not to dismiss when the “declaratory plaintiff raises chiefly an

affirmative defense,” and when failing to dismiss could deprive the plaintiff-in-fact

of its “legitimate choice of the forum and time for suit”). Under those

circumstances, the Court should simply affirm.

CONCLUSION

The Court should affirm the district court’s dismissal of the complaint.

Date: February 16, 2018

Respectfully Submitted,

/s/ Sherine E. Thomas Sherine E. Thomas Assistant County Attorney Sharon K. Talley Assistant County Attorney Anthony Nelson Assistant County Attorney Laurie R. Eiserloh Assistant County Attorney TRAVIS COUNTY ATTORNEY’S OFFICE P. O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9415 sherine.thomas@traviscountytx.gov sharon.talley@traviscountytx.gov tony.nelson@traviscountytx.gov laurie.eiserloh@traviscountytx.gov (Travis County Appellees)
Anne L. Morgan City Attorney Meghan L. Riley Chief, Litigation
/s/ Michael Siegel Michael Siegel

/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel LAW OFFICES OF LUIS ROBERTO VERA & ASSOCIATES, P.C. 1325 Riverview Towers 111 Soledad, Suite 1325 San Antonio, TX 78205-2260 Phone: (210) 225-3300 lrvlaw@sbcglobal.net (City of El Cenizo Appellees)
Lee Gelernt Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2660 lgelernt@aclu.org ojadwat@aclu.org (City of El Cenizo Appellees)
Spencer E. Amdur Cody Wofsy AMERICAN CIVIL LIBERTIES UNION

38

Case: 17-50763 Document: 00514351542 Page: 54 Date Filed: 02/16/2018

Assistant City Attorney Christopher Coppola Assistant City Attorney CITY OF AUSTIN – LAW DEPARTMENT P. O. Box 1546 Austin, Texas 78767-1546 Phone: (512) 974-2268 Michael.Siegel@austintexas.gov Christopher.Coppola@austintexas.gov (City of Austin Appellees)
/s/ Efrén Carlos Olivares Efrén Carlos Olivares TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Alamo, TX 78516 Phone: (956) 787-8171 ext. 108 efren@texascivilrightsproject.org (Texas Organization Project Education Fund)
Mimi M.D. Marziani TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, TX 78741 Phone: (512) 474-5073 champion@texascivilrightsproject.org mimi@texascivilrightsproject.org (Texas Organization Project Education Fund)

FOUNDATION 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0770 samdur@aclu.org cwofsy@aclu.org (City of El Cenizo Appellees)
Max Renea Hicks LAW OFFICES OF MAX RENEA HICKS P. O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com (City of El Cenizo Appellees)
Andre I. Segura Edgar Saldivar Trisha Trigilio AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 asegura@aclutx.org esaldivar@aclutx.org ttrigilio@aclutx.org (City of El Cenizo Appellees)

39

Case: 17-50763 Document: 00514351542 Page: 55 Date Filed: 02/16/2018
CERTIFICATE OF SERVICE I hereby certify that on February 16, 2018 I electronically filed the foregoing with the Clerk for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. A true and correct copy of this brief has been served via the Court’s CM/ECF system on all counsel of record.
/s/ Lee Gelernt Lee Gelernt Dated: February 16, 2018 CERTIFICATE OF COMPLIANCE I certify that the required privacy redactions have been made per Fifth Circuit Rule 25.2.13 and that the electronic submission has been scanned with the most recent version of commercial virus-scanning software and was reported free of viruses. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)(i) because this brief contains 9,103 words, excluding parts of the brief exempted by Fed. R. App. P. 32(f). I certify that this brief complies with typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the motion has been prepared in a proportionally-spaced typeface using Microsoft Office 2013 in 14 point Times New Roman. /s/ Lee Gelernt Lee Gelernt Dated: February 16, 2018

Case: 17-50763 Document: 00514355895 Page: 1 Date Filed: 02/16/2018

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
February 21, 2018

Mr. Lee P. Gelernt American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004-0000
No. 17-50763 Texas, et al v. Travis County, Texas, et al USDC No. 1:17-CV-425
Dear Mr. Gelernt,
The following pertains to your brief electronically filed on February 16, 2018.
We filed your brief. However, you must make the following corrections within the next 14 days.
You need to correct or add:
1) Caption on the brief does not agree with the caption of the case in compliance with FED R. APP. P. 32(a)(2)(C). Caption must exactly match the Court's Official Caption (See Official Caption below)
Note: Once you have prepared your sufficient brief, you must electronically file your 'Proposed Sufficient Brief' by selecting from the Briefs category the event, Proposed Sufficient Brief, via the electronic filing system. Please do not send paper copies of the brief until requested to do so by the clerk's office. The brief is not sufficient until final review by the clerk's office. If the brief is in compliance, paper copies will be requested and you will receive a notice of docket activity advising you that the sufficient brief filing has been accepted and no further corrections are necessary. The certificate of service/proof of service on your proposed sufficient brief MUST be dated on the actual date that service is being made. Also, if your brief is sealed, this event automatically seals/restricts any attached documents, therefore you may still use this event to submit a sufficient brief.

Case: 17-50763 Document: 00514355895 Page: 2 Date Filed: 02/16/2018
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________ Nancy F. Dolly, Deputy Clerk 504-310-7683
cc: Ms. Marisa Bono Ms. Cassandra Lang Champion Mr. Christopher Coppola Mr. David Wilson Dummer Ms. Laurie R. Eiserloh Mr. Jose Garza Mr. David J. Hacker Mr. Renea Hicks Ms. Mimi M.D. Marziani Mr. Darren Lee McCarty Mr. Michael Patrick Moran Mr. Anthony J. Nelson Mr. David Austin Robert Nimocks Mr. Efren Carlos Olivares Mr. Edgar Saldivar Mr. Jose F. Sanchez Mr. Andre Segura Mr. Michael Siegel Mr. John Clay Sullivan Ms. Sherine Elizabeth Thomas Ms. Trisha Trigilio Mr. Luis Roberto Vera Jr.

Case: 17-50763 Document: 00514355895 Page: 3 Date Filed: 02/16/2018
THIS COURT’S CAPTION
Case No. 17-50763
TEXAS; KEN PAXTON, in his official capacity as Texas Attorney General,
Plaintiffs - Appellants
v.
TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas; CITY OF AUSTIN, TEXAS; ORA HOUSTON, in her official capacity as City Council Member of the City of Austin, Texas; DELIA GARZA, in her official capacity as City Council Member of the City of Austin, Texas; SABINO RENTERIA, in his official capacity as City Council Member of the City of Austin, Texas; GREGORIO CASAR, in his official capacity as City Council Member of the City of Austin, Texas; ANN KITCHEN, in her official capacity as City Council Member of the City of Austin, Texas; JIMMY FLANNIGAN, in his official capacity as City Council Member of the City of Austin, Texas; LESLIE POOL, in her official capacity as City Council Member of the City of Austin, Texas; ELLEN TROXCLAIR, in her official capacity as City Council Member of the City of Austin, Texas; KATHIE TOVO, in her official capacity as City Council Member of the City of Austin, Texas; ALISON ALTER, in her official capacity as City Council Member of the City of Austin, Texas; STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas; MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso County, Texas; CITY OF EL CENIZO, TEXAS; RAUL L. REYES, in his official capacity as Mayor of El Cenizo, Texas; MAVERICK COUNTY, TEXAS; TOM SCHMERBER, in his official capacity as Sheriff of Maverick County, Texas; MARIO A. HERNANDEZ, in his official capacity as Constable Precinct 3-1 of Maverick County, Texas; TEXAS ORGANIZING PROJECT EDUCATION FUND; LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
Defendants - Appellees

Case: 17-50763 Document: 00514363283 Page: 1 Date Filed: 02/16/2018

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

February 27, 2018
Mr. Lee P. Gelernt American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004-0000
No. 17-50763 Texas, et al v. Travis County, Texas, et al USDC No. 1:17-CV-425
Dear Mr. Gelernt,
We have reviewed your electronically filed Appellees Brief and it is now deemed sufficient.
You must submit the 7 paper copies of your brief required by 5TH CIR. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1.
Failure to timely provide the appropriate number of copies may result in the dismissal of your appeal pursuant to 5TH CIR. R. 42.3.
NOTE: The paper copies of your brief must not contain a header noting "RESTRICTED". Therefore, please be sure that you print your paper copies from this notice of docket activity and not the proposed sufficient brief filed event so that it will contain the proper filing header. Alternatively, you may print the sufficient brief directly from your original file without any header.

Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Nancy F. Dolly, Deputy Clerk 504-310-7683
cc: Mr. Spencer Amdur Ms. Marisa Bono Ms. Cassandra Lang Champion Mr. Christopher Coppola Mr. David Wilson Dummer Ms. Laurie R. Eiserloh Mr. Jose Garza

Case: 17-50763 Document: 00514363283 Page: 2 Date Filed: 02/16/2018
Mr. David J. Hacker Mr. Renea Hicks Mr. Omar C. Jadwat Ms. Mimi M.D. Marziani Mr. Darren Lee McCarty Mr. Michael Patrick Moran Mr. Anthony J. Nelson Mr. David Austin Robert Nimocks Mr. Efren Carlos Olivares Mr. Edgar Saldivar Mr. Jose F. Sanchez Mr. Andre Segura Mr. Michael Siegel Mr. John Clay Sullivan Ms. Sherine Elizabeth Thomas Ms. Trisha Trigilio Mr. Luis Roberto Vera Jr. Mr. Cody Wofsy

 
 No. 17-50763
In the United States Court of Appeals for the Fifth Circuit
TEXAS; KEN PAXTON, in his official capacity as Texas Attorney General, Plaintiffs - Appellants v.
TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas; CITY OF AUSTIN, TEXAS; ORA
HOUSTON, in her official capacity as City Council Member of the City of Austin, Texas; DELIA GARZA, in her official capacity as City
Council Member of the City of Austin, Texas; SABINO RENTERIA, in his official capacity as City Council Member of the City of Austin, Texas; GREGORIO CASAR, in his official capacity as City Council Member of
the City of Austin, Texas; ANN KITCHEN, in her official capacity as City Council Member of the City of Austin, Texas; JIMMY FLANNIGAN, in his official capacity as City Council Member of the City of Austin, Texas; LESLIE POOL, in her official capacity as City Council Member
of the City of Austin, Texas; ELLEN TROXCLAIR, in her official capacity as City Council Member of the City of Austin, Texas; KATHIE TOVO, in her official capacity as City Council Member of the City of Austin, Texas; ALISON ALTER, in her official capacity as City Council
Member of the City of Austin, Texas; STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas;
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso County, Texas; CITY OF EL CENIZO, TEXAS; RAUL L.
REYES, in his official capacity as Mayor of El Cenizo, Texas; MAVERICK COUNTY, TEXAS; TOM SCHMERBER, in his official capacity
as Sheriff of Maverick County, Texas; MARIO A. HERNANDEZ, in his official capacity as Constable Precinct 3-1 of Maverick County, Texas; TEXAS ORGANIZING PROJECT EDUCATION FUND; LEAGUE OF UNITED
LATIN AMERICAN CITIZENS, Defendants - Appellees
On Appeal from the United States District Court for the Western District of Texas, Austin Division, No. 1:17-CV-425
REPLY BRIEF FOR PLAINTIFFS-APPELLANTS
[Counsel listed on inside cover]

Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697

Scott A. Keller Solicitor General John C. Sullivan Assistant Solicitor General john.sullivan@oag.texas.gov
Counsel for Plaintiffs-Appellants

Table of Contents Page
Table of Authorities ................................................................................................ii Summary of the Argument...................................................................................... 1 Argument................................................................................................................ 4
I. Congress Has Granted Subject-Matter Jurisdiction to Hear This Case Because It Is an Action Arising Under Federal Law. .........................4 A. Under the well-pleaded-complaint rule, this action arises under federal law because defendants have a claim to enjoin SB4 as allegedly preempted under the Supremacy Clause, and this action seeks a declaration on that federal claim. .....................5 B. Franchise Tax Board’s limitation on statutory jurisdiction where it would disrupt a pending state-court enforcement action does not apply here. ..................................................................6
II. The Court Has Constitutional Jurisdiction Over the State’s Declaratory Judgment Claims. ................................................................. 12
III. Defendants’ Alternative Argument for Affirmance Based on Discretion that the District Court Never Exercised Is Foreclosed by Supreme Court Precedent. .................................................................. 17
Conclusion............................................................................................................ 21 Certificate of Service.............................................................................................22 Certificate of Compliance .....................................................................................22
i

Table of Authorities

Page(s)

Cases

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) ........................................................................................... 3
Castillo v. Cameron Cty., 238 F.3d 339 (5th Cir. 2001)............................................................................. 13
City of El Cenizo v. State of Texas, 264 F.Supp.3d 744 (W.D. Tex. 2017)........................................................... 8, 16
Collin Cty. v. Homeowner’s Ass’n for Values Essential to Neighborhoods (HAVEN), 915 F.2d 167 (5th Cir. 1990) ........................................................................ 11, 13
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ......................................................................................... 12
Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849 (5th Cir. 2012) (en banc) ............................................................. 15
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333 (5th Cir. 2008) ............................................................................ 15
Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for S. California, 463 U.S. 1 (1983)........................................................................................passim
Gully v. First Nat’l Bank, 299 U.S. 109 (1936).......................................................................................5, 11
Lower Colo. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916 (5th Cir. 2017) ............................................................................. 14
Md. Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270 (1941) .......................................................................................... 16
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)........................................................................2, 4, 16, 17, 18
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986) ........................................................................................... 5

ii

State of Missouri ex rel Missouri Highway & Transp. Comm’n v. Cuffley, 112 F.3d 1332 (8th Cir. 1997)....................................................................... 10, 11
New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321 (5th Cir. 2008)...............................................................................6
Orix Credit All., Inc. v. Wolfe, 212 F.3d 891 (5th Cir. 2000) ....................................................................... 14, 15
Republican Party of Guam v. Gutierrez, 277 F.3d 1086 (9th Cir. 2002) .......................................................................... 11
Rowan Cos. v. Griffin, 876 F.2d 26 (5th Cir. 1989) .......................................................................... 4, 21
Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383 (5th Cir. 2003) ........................................................................ 3, 19
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) ........................................................................................ 5, 6
St. Paul Ins. Co. v. Trejo, 39 F.3d 585 (5th Cir. 1994)............................................................................... 18
Steffel v. Thompson, 415 U.S. 452 (1974).........................................................................................3-4
Sutter Corp. v. P&P Indus., Inc., 125 F.3d 914 (5th Cir. 1997) ............................................................................. 21
Texas v. W. Publ’g. Co., 882 F.2d 171 (5th Cir. 1989) ......................................................................... 2, 15
Travelers Ins. Co. v. La. Farm Bureau Fed’n, Inc., 996 F.2d 774 (5th Cir. 1993).................................................................. 12, 18, 19
Constitutional Provisions, Statutes, and Rules
U.S. Const. amend. I ........................................................................................................... 10 art. VI, cl. 2 .................................................................................................... 1, 6
8 U.S.C. ch. 12 § 1101 et seq. (Immigration and Nationality Act) .............................8
iii

28 U.S.C. § 1331.........................................................................................................passim § 1367................................................................................................................. 5 § 2201(a) (Declaratory Judgment Act).......................................................passim
29 U.S.C. ch 18 § 1001 et seq. (ERISA)................................................................ 7, 8 R. 12(b)(6) ............................................................................................................ 14 Other Authorities Travis County Sherriff’s Office, ICE Policy,
https://www.youtube.com/watch?v=7i0sVnW_h_w ...................................... 16
iv

Summary of the Argument I. In defense of the district court’s jurisdictional dismissal, defendants raise what they admit is an argument not raised below. El Cenizo Br. 12 n.3. They now argue that, regardless of plaintiffs’ standing, this suit does not fall within 28 U.S.C. § 1331’s grant of subject-matter jurisdiction to federal courts for civil actions “arising under the Constitution, laws, or treaties of the United States.” Id. at 12-13. Specifically, defendants invoke the well-pleaded-complaint rule to argue a lack of statutory jurisdiction over suits to declare a state law’s “validity under federal law.” Id. at 15. Defendants are incorrect. Under the well-pleaded-complaint rule, a declaratory action arises under federal law if the suit for coercive relief that could be brought, absent the Declaratory Judgment Act, would present a federal issue as a necessary part of the plaintiff’s claim. That test is satisfied here. Defendants had an affirmative claim for an injunction arising from their alleged violation of the Supremacy Clause. That federal issue of preemption would appear on the face of their well-pleaded complaint for coercive relief. Accordingly, this suit seeking a declaration of that federal claim likewise arises under federal law. Defendants seek to avoid regular application of the well-pleaded-complaint rule by relying on Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1 (1983), but defendants’ overbroad reading of that decision would turn the Supreme Court’s rationale upside down. In Franchise Tax Board, the Court first noted a statutory feature that made the existence of statutory jurisdiction unclear, and the Court then abstained from finding jurisdiction because the State had chosen to present the federal question in a pending state-court action—

meaning the State was content with adjudication of the issue there. The Court explicitly relied on the interest in comity between the federal and state governments, declining to “snatch” a case that the State chose to bring in state court. In contrast, no statutory feature here even creates doubt that § 1331 should apply as it normally does. And the comity rationale of Franchise Tax Board would only cut in favor of federal jurisdiction on these facts. The State here has chosen a federal forum for adjudication of a federal issue arising on the face of a well-pleaded complaint for coercive relief. Those were not the facts in Franchise Tax Board. And rejecting a regular application of § 1331 because the plaintiffs here are the State and a state official would uniquely disrespect the State—turning Franchise Tax Board’s comity principle on its head.
II. Defendants also continue to dispute plaintiffs’ Article III standing. Defendants suggest that a concrete case or controversy did not exist on May 7, 2017—despite defendants’ public statements threatening litigation and reporting in newspapers of record on imminent litigation—but did exist on May 8, 2017 when that threatened litigation materialized. That bizarre suggestion blinks reality.
The original complaint here specifically alleged imminent litigation by the City of Austin and other defendants. ROA.35, 41 (¶¶113, 148). That allegation must be accepted at this motion stage if plausible, as it plainly was. And that imminent litigation created the requisite “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant” a declaratory suit. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007); see Texas v. W. Publ’g. Co., 882 F.2d 171, 176 (5th Cir. 1989) (noting that “the plaintiff must allege a course
2

of conduct that implies an imminent threat of impending legal action by the defendant.” (quotation marks omitted)).
The district court’s fundamental error was failing to accept the plausible allegation of imminent suit by defendants. The district court addressed this standing theory without even a full page of analysis, simply stating that the relevant question is whether a plaintiff has standing when it sued, as opposed to “whether the defendant has standing to sue the plaintiff in a different lawsuit” later in time. ROA.641-42. But the State is not trying to leap forward in time. The State’s point is that, on May 7, 2018, there was a concrete controversy based on threatened litigation by defendants. A declaratory suit anticipating that litigation is entirely proper: “Declaratory judgments are often ‘anticipatory,’ appropriately filed when there is an actual controversy that has resulted in or created a likelihood of litigation.” Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 391-92 (5th Cir. 2003) (emphasis added).
Either party could properly sue before SB4 became effective in September 2017, based on the concrete controversy as of May 2017. A party suffers a justiciable injuryin-fact from a credible threat of future litigation to prohibit its desired future activity. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). That is why defendants could sue in May 2017, seeking relief allowing them to act as they desired in September 2017 (by violating SB4 once it took effect). Likewise, the State could sue in May 2017 so it could freely plan to act as it desired in September 2017 (by enforcing SB4 once it took effect).
As then-Justice Rehnquist put it, “the declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity.” Steffel v. Thompson, 415 U.S. 452,
3

480 (1974) (Rehnquist, J., concurring). Here, the activity that either party desired to take starting in September 2017 would be allegedly illegal—whether illegal under SB4 (for defendants’ desired activity) or under the federal constitution (for plaintiffs’ desired enforcement of SB4). The State is not a second-class litigant, unable to access federal court for a declaration that the State’s future activity is lawful, whereas a private party to the same concrete controversy can do so.
III. Finally, defendants offer an alternative theory of affirmance based on a hypothetical prediction of what the district court would do on remand. That plea is inconsistent with precedent from both the Supreme Court and this Court. MedImmune, 549 U.S. 118; Rowan Cos. v. Griffin, 876 F.2d 26, 29 (5th Cir. 1989). As defendants admit, “the district court did not dismiss the State’s case on discretionary grounds.” El Paso Br. 8. Because the district court’s standing conclusion was based on legal conclusions, rather than any exercise of its discretion under the Declaratory Judgment Act, the order dismissing this action should be reversed and the case remanded for further proceedings.
Argument I. Congress Has Granted Subject-Matter Jurisdiction to Hear This Case
Because It Is an Action Arising Under Federal Law. The district court dismissed this action based on an alleged lack of standing, not a lack of subject-matter jurisdiction. ROA.640-44. In defending that ruling, however, defendants primarily raise what they admit is an argument not raised below. El Cenizo Br. 12 n.3. They now argue that this suit does not fall within Congress’s grant of subject-matter jurisdiction to district courts for civil actions “arising under the
4

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. That is wrong.
A. Under the well-pleaded-complaint rule, this action arises under federal law because defendants have a claim to enjoin SB4 as allegedly preempted under the Supremacy Clause, and this action seeks a declaration on that federal claim.
In creating federal district courts, Congress assigned them jurisdiction over all civil actions “arising under” federal law. 28 U.S.C. § 1331. Despite the similar phrasing to Article III’s creation of a federal judicial power over cases “arising under” federal law, the jurisdiction statutorily conferred by § 1331 has been held narrower than Article III permits. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 80708 (1986). Specifically, a case “arises under” federal law for statutory purposes if a federal issue is among the allegations necessary for the plaintiff to state a claim, as opposed to possible defenses to that claim. See Gully v. First Nat’l Bank, 299 U.S. 109, 112-13 (1936). This is sometimes known as the well-pleaded-complaint rule. And because the Declaratory Judgment Act did not expand federal jurisdiction, a declaratory action invokes federal-question jurisdiction only if the action for coercive relief (such as damages or an injunction) that would have been brought, were declaratory judgments not available, would have been within federal-question jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673-74 (1950). Only one claim need be within the Court’s subject-matter jurisdiction under § 1331 to let it hear all claims part of the same controversy. 28 U.S.C. § 1367.
5

A straightforward application of the well-pleaded-complaint rule shows the district court’s subject-matter jurisdiction under § 1331. For instance, the State’s declaratory action raises the question whether SB4 is preempted by federal immigration law. ROA.45-46 (Third Cause of Action). That federal question is not a mere defense to a state-law action. It is a claim that defendants could raise in their own affirmative suit for coercive relief. As this Court has held: “Shaw, among the progeny of Ex parte Young, clearly establishes a federal right of action against ‘state officials’ to enjoin the enforcement of preempted state regulations. This cause of action against state officials is an affirmative federal claim that can form the basis for federal jurisdiction.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 329-30 (5th Cir. 2008) (emphasis added). In fact, such an affirmative claim for an injunction under the federal Supremacy Clause is exactly what defendants later raised in the San Antonio lawsuit.
Because defendants had an affirmative claim for coercive relief arising under federal law, this action to declare the merits of that claim also arises under federal law for purposes of § 1331. Skelly Oil, 339 U.S. at 673-74. The well-pleaded-complaint rule is no bar to subject-matter jurisdiction.
B. Franchise Tax Board’s limitation on statutory jurisdiction where it would disrupt a pending state-court enforcement action does not apply here.
Defendants resist this straightforward application of the well-pleaded-complaint rule by overreading the Supreme Court’s holding in Franchise Tax Board. E.g., El
6

Cenizo Br. 12-17. Franchise Tax Board adjusted the well-pleaded-complaint rule for the specific circumstances before it, which are not the circumstances here.
1. In Franchise Tax Board, the Court confronted an action brought by a State in state court to declare that a state taxing regulation was not preempted by ERISA, and to collect those taxes from the defendant. 463 U.S. at 5-7. The defendant wanted to remove that pending state-court action to federal court and the Supreme Court rejected the attempt. Id. at 7. The Court noted the “regular[]” rule, described above, in which courts take jurisdiction over declaratory actions where the defendant has a coercive action arising under federal law. Id. at 19.
But the Court carved out an exception for the circumstances there, based on a confluence of factors that the Court concluded made it “somewhat unclear” whether Congress meant to allow federal jurisdiction. Id. The Court emphasized two factors absent here:
• First, the federal question of preemption would have arisen under ERISA, and that statute expressly creates a cause of action for preemption that is limited to certain parties (unlike the Ex parte Young cause of action). Id. at 21. That fact made it “unclear” to the Court whether Congress meant to allow federalquestion jurisdiction under § 1331 in that scenario. Id.
• Second, because of state-court enforcement actions that allow resolving the preemption question, the Supreme Court held that States “do not suffer if the preemption questions such enforcement may raise are tested there.” Id. (emphasis added). Hence, the Court relied on comity to interpret § 1331 narrowly where a pending state-court action allowed resolution of the federal issue:
7

“considerations of comity make us reluctant to snatch cases which a State has brought from the courts of that State, unless some clear rule demands it.” Id. at 21 n.22 (emphases added). In other words, Franchise Tax Board relied on a statutory feature of ERISA to find it “unclear” whether Congress intended the separate statutory grant of jurisdiction in § 1331 to apply, and Franchise Tax Board then applied a comity-based clear-statement rule to limit § 1331 from covering cases that a State has brought in state court. This case is distinguishable from Franchise Tax Board on both fronts. First, nothing in the Immigration and Nationality Act allows preemption suits in a more limited class of cases, creating uncertainty about whether Congress meant for federal jurisdiction over preemption claims to be controlled by regular application of § 1331. Indeed, defendants cannot credibly question whether § 1331 confers subject-matter jurisdiction over their preemption challenge—as defendants themselves brought that challenge in the San Antonio court, affirmatively pleading the existence of subjectmatter jurisdiction under § 1331. Complaint for Declaratory and Injunctive Relief, City of El Cenizo v. State of Texas, 264 F.Supp.3d 744 (W.D. Tex. 2017) (No. 5:17-cv404), ECF 1, at 9, 28. Because there is no statutory basis for avoiding the regular application of § 1331—under which subject-matter jurisdiction exists here—Franchise Tax Board’s subsequent reasoning does not even apply. Second, even assuming some uncertainty about whether Congress meant § 1331 to confer federal-question jurisdiction here, the comity-based clear-statement rule of Franchise Tax Board cuts in the opposite direction in this case, where the State invoked federal jurisdiction and had no state-court enforcement action pending. There
8

is no comity concern with “snatching” a case from state court here. Congress need not give a clear statement to afford the States the same rights as any other litigant.
In fact, defendants’ request to expand Franchise Tax Board would be a unique affront to comity. It would deny subject-matter jurisdiction when the State seeks to invoke regular principles of law, but allow jurisdiction when any other litigant seeks to invoke those same principles. Franchise Tax Board should not be twisted into such a comity-wrecking rule unless the Supreme Court clearly directs such a result. And it has not: that decision did not address depriving a plaintiff of its own choice of forum where federal jurisdiction would exist, only because the plaintiff is a State.
Lastly, defendants cite Franchise Tax Board to argue that the State is not “significantly prejudiced,” 463 U.S. at 21, by being denied a federal forum for adjudication of a claim arising under federal law. But, again, the context of that statement in Franchise Tax Board was that the State already brought an enforcement action in state court, in which the federal issue could be adjudicated. Here, defendants’ threatened preemption challenge to SB4 would arise in a pre-enforcement posture: both before SB4’s enforcement against defendants in state court and even before SB4’s effective date. When facing threatened federal-question litigation in that posture, it significantly benefits the State to have the federal-question determined in a declaratory action before attempting to enforce the law—the State and its officials can thereby know in advance whether any portion of the law is unconstitutional. That declaratory determination will both help state officials ensure they comply with their oaths to respect the Constitution, and avoid claims for liability against state officials who would enforce the state law. And, of course, denying the State a federal forum for
9

such a declaration of this controversy—while allowing private plaintiffs to the same controversy a federal forum—would uniquely disrespect the States as second-class litigants in the federal judicial system.
2. Defendants wrongly argue that the blanket rule they urge—a State may never sue under § 1331 in federal court for a declaration on state law—was adopted by the Eighth Circuit in State of Missouri ex rel Missouri Highway & Transportation Commission v. Cuffley, 112 F.3d 1332, 1334-35 (8th Cir. 1997). Of course, this out-ofcircuit decision is not controlling. But it is also distinguishable.
In Cuffley, the State attempted to bring a declaratory judgment action that it could make an administrative interpretation of a law that prevented the KKK from participating in the state’s “Adopt-A-Highway” program. The court declined jurisdiction even though a putative declaratory defendant (the KKK) could have brought a § 1983 action in federal court for the claim that its First Amendment rights had been violated if the state went through with the ban. Id. at 1335. Based on its reading of Franchise Tax Board, the court would have found “that this case is properly in federal court” except that the declaratory action had been brought by a State. Id.
In Cuffley, the State had the benefit of taking its action to state court since it dealt with an administrative action on a law already in effect. The suit was not in a preenforcement posture where the federal forum made sense for the constitutional question. And, as the Eighth Circuit acknowledged, it was the unique factors related to a State bringing the claim—no prejudice by not having the claim heard in federal court and lack of increased exposure in waiting until declaratory defendant brought
10

suit—that prevented jurisdiction. Id. at 1335-36. As explained above, this suit is in a different posture.1
3. Finally, defendants argue that the State’s suit “‘is sufficiently removed from the spirit’ of the federal-question statute.” El Cenizo Br. 14 (quoting Franchise Tax Board, 463 U.S. at 21). But determination of an important constitutional claim in a pre-enforcement posture is squarely within the spirit of § 1331’s grant of subjectmatter jurisdiction. As this Court has noted, because “it is the underlying cause of action of the defendant against the plaintiff that is actually litigated in a declaratory judgment action, a party bringing a declaratory judgment action must have been a proper party had the defendant brought suit on the underlying cause of action.” Collin Cty. v. Homeowner’s Ass’n for Values Essential to Neighborhoods (HAVEN), 915 F.2d 167, 171 (5th Cir. 1990). As that reasoning shows, the State is a proper party here.
A “common-sense accommodation of judgment” confirms that the regular principles of subject-matter jurisdiction should apply. Franchise Tax Board, 463 U.S. at 20 (quoting Gully, 299 U.S. at 117). The State chose a federal forum for adjudication of a federal challenge, to avoid expected duplicative challenges from cities across
1 Even less applicable is defendants’ reliance on the Ninth Circuit’s decision in Republican Party of Guam v. Gutierrez, 277 F.3d 1086 (9th Cir. 2002). There, the Legislature of Guam attempted to sue the Governor in federal court for not following state law, and the Ninth Circuit rejected federal court jurisdiction based on the Legislature’s ability to bring the claim in Guam court. Id. at 1090. Moreover, “the intragovernmental nature of the dispute ma[de] invocation of federal jurisdiction even less appropriate.” Id.
11

Texas. See, e.g., Travelers Ins. Co. v. La. Farm Bureau Fed’n, Inc., 996 F.2d 774, 777 (5th Cir. 1993) (noting that the declaratory plaintiff brought action “to avoid a multiplicity of suits in various forums”). That is entirely proper, and regular principles of subject-matter jurisdiction should apply. Cf., e.g., Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (noting federal courts’ “virtually unflagging obligation” to exercise jurisdiction assigned them). II. The Court Has Constitutional Jurisdiction Over the State’s Declara-
tory Judgment Claims. In addition to statutory jurisdiction, the State’s declaratory judgment action also satisfies Article III, as the State has standing stemming from multiple sources. First, “the nature of the declaratory remedy itself, which was designed to permit adjudication of either party’s claims of right,” provides a basis for jurisdiction. Franchise Tax Board, 463 U.S. at 19 n.19. Based on the cause of action held by the declaratory defendants, Texas officials might be subject to legal action—much like an accused patent infringer—thus creating standing under the Act. Defendants seem to argue (El Cenizo Br. 24-29; El Paso Br. 21-26) that Appellants must show a wholly separate injury from the declaratory defendants in order to support Article III jurisdiction. But this misses the point of the DJA: in allowing the declaratory plaintiff to bring the declaratory defendant’s cause of action, the declaratory plaintiff is able to avoid liability for that cause of action and thus avoid the otherwise imminent injury that would stem from it. In other words, the State meets the standing requirements for a
12

declaratory judgment action by virtue of being across the “v.” from a potential coercive plaintiff asserting a live federal cause of action that would create legal liability for Texas officials.2
This is why the Supreme Court, in cases such as Skelly Oil and Franchise Tax Board, never looks for a separate injury apart from the coercive plaintiff’s cause of action in the DJA analysis. See Franchise Tax Board, 463 U.S. at 17-20. If, however, defedants were correct (El Paso Br. 22) that the “proper jurisdictional analysis” would have to consider “the injuries suffered by the State and the link between those injuries and the actions of [the declaratory] defendants,” the DJA would be rendered a dead letter. The State would have its own cause of action for whatever injuries had been caused to it. This would obviously be wrong—the Act was created as a procedural device for adjudicating the alleged injury to the potential coercive plaintiff, not some harm that exists for the coercive defendant (at least not a harm independent of the litigation to be brought against it). Therefore, while a stranger to the intended litigation cannot use the Act to create standing when there is no legal liability on the line for them (El Paso Br. 24, citing HAVEN, 915 F.2d at 172), that is not a concern here since the State would face direct legal liability from the defendants in this action.3
2 Additionally, the State would also be harmed by the injunction sought by declaratory defendants here that would allow them discretion in enforcing SB4. See Castillo v. Cameron Cty., 238 F.3d 339, 350–51 (5th Cir. 2001).
3 Even the Eighth Circuit, in Cuffley, would have found jurisdiction absent its interpretation of Franchise Tax Board’s prohibition on states bringing suit in federal court when they could bring suit in state court on a state law enforcement action.
13

Beyond that, the State showed (at 26-29) that the imminent litigation it faced was sufficient to establish standing here. See Lower Colo. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916, 924 (5th Cir. 2017). Defendants complain (El Cenizo Br. 29-31; El Paso Br. 12-15) that the State did not face imminent suit or that threats of litigation cannot create standing. Both claims are incorrect. “The threat of litigation, if specific and concrete, can indeed establish a controversy upon which declaratory judgment can be based.” Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 897 (5th Cir. 2000).
Defendants dismiss Orix (El Cenizo Br. 30) due to the fact that this Court determined there that the case was not ripe for adjudication because of uncertainties about future litigation. Orix, 212 F.3d at 896 (holding that “unasserted, unthreatened, and unknown claims do not present an immediate or real threat”). Defendants miss the fact, however, that the claims here were not unasserted, unthreatened, or unknown. See ROA.642-43 (highlighting an uncontroverted showing of the imminent threat of impending legal action by defendants, including statements that defendants would file lawsuits against Texas prior to the September 1, 2017 effective date of the statute, as well as the votes by both Austin and El Paso County to do so). It was enough, then, that the State alleged that defendants—including the City of Austin, ROA.35, 41— were going to sue. This Court, when “review[ing] a district court’s dismissal under Rule 12(b)(6) . . . ‘accept[s] all well-pleaded facts as true and view[s] those facts in
Defendants’ crabbed interpretation of the Act on this point does not align with the jurisprudence enforcing it.
14

the light most favorable to the plaintiffs.’” Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
Defendants also miss the broader point made by this Court that the contingency of the actual filing of a lawsuit (or even the final decision to do so) by the declaratory defendant(s) is not relevant to the analysis, nor could it be. A “controversy exists ‘(1) when the declaratory plaintiff has a real and reasonable apprehension of litigation and (2) when the declaratory plaintiff has engaged in a course of conduct that brings it into adversarial conflict with the declaratory defendant.’” Orix, 212 F.3d at 897 (quoting W. Publ’g Co., 882 F.2d at 176). Here, the State had a real and reasonable apprehension of litigation founded in the statements of defendants that the State knew would be realized by its continued course of conduct in passing SB4. Though the ripeness issue may be difficult sometimes in the declaratory judgment context, it is not in this case. The district court should have considered “the likelihood” that the State would be sued over SB4 “in determining whether a justiciable controversy exists.” Id. The district court simply overlooked the fact that the State was facing imminent suit and, as such, had standing to challenge the coercive plaintiffs in a declaratory judgment action. Unlike the facts of Orix, there were no contingencies left (as proven by the subsequent filings of the defendants here).
Finally, the State has standing here based on its sovereign interest in not only seeing its laws enforced but also in protecting its citizens. Tex. Br. 29-36. Defendants complain of a lack of “evidence that anyone planned to violate SB4 once the statute took effect,” El Cenizo Br. 20-22, while simultaneously acknowledging the contrary
15

policies set forth by Travis County and the City of El Cenizo that were previously referenced by the State. Tex. Br. 7, 30-31. Notably, defendants do not aver that these policies have changed. Given (1) the local laws and policies at stake; (2) local officials’ beliefs that SB4 violated the Constitution; (3) local officials’ statements that they could—based on their discretion to enforce immigration law or not—violate the law; and (4) past instances of local officials refusing to cooperate with federal immigration officials, it was both reasonable for the State to assume that local law enforcement officers would disregard SB4 and prudent for the State to pave the way for SB4’s enforcement. See ROA.34, 249-52, 254-62, 275; Travis County Sherriff’s Office, ICE Policy, https://www.youtube.com/watch?v=7i0sVnW_h_w (last visited March 15, 2018); Exhibit 2 in Support of Complaint for Declaratory Judgment and Injunctive Relief, City of El Cenizo v. State of Texas, 264 F.Supp.3d 744 (W.D. Tex. 2017) (No. 5:17-cv-404), ECF No. 1-2 (City of El Cenizo, Safe Haven Ordinance, Ordinance Number 1999-8-3(b)).
A declaration that SB4 was constitutional, prior to the law taking effect, would have remedied that situation. As always, “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, 549 U.S. at 127 (quoting Md. Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)). Jurisdiction is not enlarged by the suit here and the real stake by both sides in this real controversy therefore satisfies all of the hallmarks of traditional litigation contemplated by Article III.
16

III. Defendants’ Alternative Argument for Affirmance Based on Discretion that the District Court Never Exercised Is Foreclosed by Supreme Court Precedent. Lastly, defendants argue that, even assuming Article III jurisdiction and subject-
matter jurisdiction under § 1331, this Court should step into the district court’s shoes
and exercise its discretion under the Declaratory Judgment Act to decline to hear an
otherwise proper declaratory suit. El Cenizo Br. 32-33. That presumptuous argu-
ment is foreclosed by Supreme Court precedent.
In MedImmune, Inc. v. Genentech, Inc., the Supreme Court rejected that exact
argument. 549 U.S. at 122. There, the district court dismissed a declaratory judg-
ment action, believing there was no reasonable apprehension of litigation under Fed-
eral Circuit precedent. Id. The Supreme Court reversed, holding that the litigation
anticipated if the declaratory plaintiff acted as it believed it was entitled to act created
a justiciable controversy. Id.
The Supreme Court then rejected the defendant’s alternative argument that the
order of dismissal should be affirmed on the alternative basis of the district court’s
discretion to decline declaratory actions:
Lastly, respondents urge us to affirm the dismissal of the declaratory-judgment claims on discretionary grounds. The Declaratory Judgment Act provides that a court “may declare the rights and other legal relations of any interested party,” 28 U.S.C. § 2201(a) (emphasis added), not that it must do so. . . . We have found it “more consistent with the statute,” however, “to vest district courts with discretion in the first instance, because facts bearing on the usefulness of the declaratory judgment remedy, and the fitness of the case for resolution, are peculiarly within their grasp.” The District Court here gave no consideration to discretionary dismissal, since, despite its ‘serious misgivings’ about the Federal Circuit’s rule, it considered itself bound to dismiss by Gen-Probe. Discretionary dismissal was irrelevant
17

to the Federal Circuit for the same reason. Respondents have raised the issue for the first time before this Court, exchanging competing accusations of inequitable conduct with petitioner. Under these circumstances, it would be imprudent for us to decide whether the District Court should, or must, decline to issue the requested declaratory relief. We leave the equitable, prudential, and policy arguments in favor of such a discretionary dismissal for the lower courts' consideration on remand. Similarly available for consideration on remand are any merits-based arguments for denial of declaratory relief.
Id. at 136-37 (citations omitted). That same result obtains here. It is undisputed that the district court here “gave
no consideration to discretionary dismissal.” Id. at 136; see El Paso Br. 8. Defendants have raised the issue for the first time on appeal. As in MedImmune, “it would be imprudent” for this Court to assess that discretionary decision in the first instance, and the Court should refuse to do so. 549 U.S. at 136.
In any event, even were the Court inclined to peek ahead at the decision the district court will face on remand, there is substantial reason to believe the district court would exercise its jurisdiction here, once this Court clarifies its existence. First, although “the district court’s discretion is broad, it is not unfettered.” Travelers, 996 F.2d at 778. The district court may not dismiss merely “on the basis of whim or personal disinclination.” St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590 (5th Cir. 1994) (citation omitted). And on remand, “unless the district court addresses and balances the purposes of the Declaratory Judgment Act and the factors relevant to the abstention doctrine on the record, it abuses its discretion.” Id.
Here, those policy considerations cut in favor of exercising jurisdiction. The claim here was brought with the purpose of avoiding a multiplicity of lawsuits and,
18

indeed, would have that effect. See Travelers, 996 F.2d at 776–77. Citing the San Antonio litigation, defendants complain (El Cenizo Br. 35-37; El Paso Br. 30-31) that there was no multiplicity of suits to avoid and that this case can (and was) easily consolidated. That misses the point. Just because it has worked that way (so far) does not mean that it had to. Rather than (i) potentially going to various federal courts at different times with different defendants, or (ii) seeking to enforce SB4 in state court on multiple occasions (as defendants seem to believe is the only acceptable route for the State to determine the constitutionality of its law), or even (iii) seeking a declaratory judgment in state court while multiple federal suits were filed, the State chose the most sensible path forward.4 It set the stage for one suit that would both allow the constitutionality of the law to be legitimately challenged in a federal forum and involve parties that were interested and able to challenge the law. Also, if both parties are correct that the law needed to be vetted prior to taking effect, Texas was right to get the ball rolling as soon as possible. It is disingenuous of defendants to argue that perhaps they were not going to sue over SB4 and to simultaneously fault the State for taking quick action to ensure that the case was heard in the relatively tight timeframe at issue.
Additionally, instead of opening a Pandora’s box for the State, a rule allowing the State to bring such a declaratory action—again, under a very narrow set of cir-
4 The absence of any state court litigation—as was present in Franchise Tax Board—only “strengthens the argument against dismissal of the federal declaratory judgment action.” Sherwin-Williams, 343 F.3d at 394.
19

cumstances—prevents forum shopping and gamesmanship by plaintiffs. When facing a potential multiplicity of suits, it is far more efficient and judicious for the State to file a declaratory action and have the issue decided by the first court to have the controversy presented to it. Under defendants’ view, though, not only would cities be able to forum shop for a court known to be friendly to their cause, localities could coordinate to file across the State and then, needing only one suit to succeed, withdraw any suits not in a favorable court. Tellingly, a finding of jurisdiction would resolve the irony of the City of Austin and Travis County arguing so vehemently against an Austin-based federal forum.
Finally, retaining jurisdiction in this case would underscore both this Court’s longstanding first-to-file rule and the commitment of the federal courts to exercising the jurisdiction given to them. If a court has a legitimate reason for exercising its discretion to decline jurisdiction in a declaratory judgment case, that is one thing. But the court here did not do that. The dismissal was based purely on the argument that the court did not have jurisdiction available. See El Paso Br. 8 (“[T]he district court did not dismiss the State’s case on discretionary grounds.”). Defendants’ argument (El Cenizo Br. 32-33) that the district court would have used its discretion to decline jurisdiction anyway was not made by the district court and therefore
20

should not be countenanced. A rejection of jurisdiction based on legal error is unacceptable, Rowan Cos., 876 F.2d at 29—even if the San Antonio litigation has progressed somewhat further, the case should be remanded to the Austin court.5
Conclusion The Court should reverse the district court and remand for consideration of the State’s declaratory judgment claims.

Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697

Respectfully submitted,
Scott A. Keller Solicitor General
/s/ John C. Sullivan John C. Sullivan Assistant Solicitor General john.sullivan@oag.texas.gov
Counsel for Plaintiffs-Appellants

5 In the interest of judicial efficiency, and because the parties are the same, the San Antonio case should be transferred back to Austin; the Austin court can then continue with the post-preliminary-injunction-motion proceedings. See Sutter Corp. v. P&P Indus., Inc., 125 F.3d 914, 920 (5th Cir. 1997).
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Certificate of Service On March 16, 2018, this brief was served via CM/ECF on all registered counsel and transmitted to the Clerk of the Court. Counsel further certifies that: (1) any required privacy redactions have been made in compliance with Fifth Circuit Rule 25.2.13; (2) the electronic submission is an exact copy of the paper document in compliance with Fifth Circuit Rule 25.2.1; and (3) the document has been scanned with the most recent version of Symantec Endpoint Protection and is free of viruses.
/s/ John C. Sullivan John C. Sullivan
Certificate of Compliance This brief complies with: (1) the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 5764 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii); and (2) the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface (14-point Equity) using Microsoft Word (the same program used to calculate the word count).
/s/ John C. Sullivan John C. Sullivan
22

 
 General Docket United States Court of Appeals for the Fifth Circuit

Court of Appeals Docket #: 17-50763 Nature of Suit: 3440 Other Civil Rights Texas, et al v. Travis County, Texas, et al Appeal From: Western District of Texas, Austin Fee Status: Fee Paid

Docketed: 09/05/2017 Termed: 12/12/2018

Case Type Information: 1) Civil Rights 2) Private 3)

Originating Court Information: District: 0542-1 : 1:17-CV-425 Originating Judge: Sam Sparks, U.S. District Judge Date Filed: 05/07/2017 Date NOA Filed: 08/31/2017

Date Rec'd COA: 09/01/2017

Prior Cases: None

Current Cases: Lead
Related 17-50762

Member 17-50763

Start

End

09/08/2017

Panel Assignment: Panel: TMR JWE SAH Date of Hearing: 11/05/2018

Date of Decision: 12/12/2018

Date Completed: 12/12/2018

TEXAS

Plaintiff - Appellant

John Clay Sullivan Email: john.sullivan@oag.texas.gov [COR LD NTC Government] Office of the Attorney General Office of the Solicitor General P.O. Box 12548 Austin, TX 78711
David J. Hacker Direct: 512-936-2330 Email: david.hacker@oag.texas.gov Fax: 512-936-2548 [COR NTC Government]

KEN PAXTON, in his official capacity as Texas Attorney General
Plaintiff - Appellant
v. TRAVIS COUNTY, TEXAS
Defendant - Appellee

Office of the Attorney General of Texas Environmental Protection Division Suite MC 001 P.O. Box 12548 Austin, TX 78711-2548
John Clay Sullivan [COR LD NTC Government] (see above)
David J. Hacker Direct: 512-936-2330 [COR NTC Government] (see above)
Sherine Elizabeth Thomas, Assistant County Attorney Direct: 512-854-9513 Email: sherine.thomas@traviscountytx.gov Fax: 512-854-4808 [COR LD NTC Government] County Attorney's Office for the County of Travis Attn. Litigation Div P.O. Box 1748 Austin, TX 78767
Laurie R. Eiserloh Direct: 512-854-6906 Email: laurie.eiserloh@traviscountytx.gov Fax: 512-854-4808 [COR NTC Government] County Attorney's Office for the County of Travis P.O. Box 1748 Austin, TX 78767
Anthony J. Nelson, Assistant County Attorney Direct: 512-854-9513 Email: tony.nelson@traviscountytx.gov Fax: 512-854-4808 [COR NTC Government] County Attorney's Office for the County of Travis P.O. Box 1748 Austin, TX 78767

SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas
Defendant - Appellee

Sherine Elizabeth Thomas, Assistant County Attorney Direct: 512-854-9513 [COR LD NTC Government] (see above)

Laurie R. Eiserloh Direct: 512-854-6906 [COR NTC Government] (see above)

Anthony J. Nelson, Assistant County Attorney Direct: 512-854-9513 [COR NTC Government] (see above)

CITY OF AUSTIN, TEXAS Defendant - Appellee

Michael Siegel Direct: 512-974-2888 Email: michael.siegel@austintexas.gov Fax: 512-974-1311 [COR LD NTC Government] City of Austin Law Department, Litigation Division P.O. Box 1546 Austin, TX 78767-1546

Christopher Coppola, Attorney Direct: 512-974-2888 Email: christopher.coppola@austintexas.gov [COR NTC Government] City of Austin Law Department, Litigation Division P.O. Box 1546 Austin, TX 78767-1546

ORA HOUSTON, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

DELIA GARZA, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government]

(see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

SABINO RENTERIA, in his official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

GREGORIO CASAR, in his official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

ANN KITCHEN, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

JIMMY FLANNIGAN, in his official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

LESLIE POOL, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

ELLEN TROXCLAIR, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

KATHIE TOVO, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

ALISON ALTER, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888

[COR NTC Government] (see above)

ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND Terminated: 05/25/2018
Defendant - Appellee

EL PASO COUNTY, TEXAS Defendant - Appellee

Jose Garza Email: garzpalm@aol.com [COR LD NTC Retained] Garza Golando Moran, P.L.L.C. 405 N. Saint Mary's Street San Antonio, TX 78205

RICHARD WILES, in his official capacity as Sheriff of El Jose Garza

Paso County, Texas

[COR LD NTC Retained]

Defendant - Appellee

(see above)

CITY OF EL CENIZO, TEXAS Defendant - Appellee

Lee P. Gelernt, Esq. Direct: 212-549-2616 Email: lgelernt@aclu.org Fax: 212-549-2654 [COR LD NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 18th Floor 125 Broad Street New York, NY 10004-0000

Spencer Amdur Direct: 415-343-1198 Email: samdur@aclu.org Fax: 415-395-0950 [COR NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project

39 Drumm Street San Francisco, CA 94111
Renea Hicks Direct: 512-480-8231 Email: rhicks@renea-hicks.com [COR NTC Retained] Law Office of Renea Hicks P.O. Box 303187 Austin, TX 78703-3187
Omar C. Jadwat Direct: 212-549-2620 Email: ojadwat@aclu.org Fax: 212-549-2654 [COR NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 18th Floor 125 Broad Street New York, NY 10004-0000
Edgar Saldivar Direct: 713-942-8146 Email: ESaldivar@aclutx.org Fax: 713-942-8966 [COR NTC Retained] American Civil Liberties Union of Texas Suite 250 1500 McGowen Street Houston, TX 77004
Andre Segura Email: asegura@aclutx.org [COR NTC Retained] American Civil Liberties Union of Texas 1500 McGowen Street Houston, TX 77004
Trisha Trigilio Direct: 713-942-8146 Email: ttrigilio@aclutx.org Fax: 713-942-8966 [NTC Retained] American Civil Liberties Union of Texas Suite 250 1500 McGowen Street Houston, TX 77004

Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 Email: lrvlaw@sbcglobal.net Fax: 210-225-2060 [NTC Retained] Law Offices of Luis Roberto Vera, Jr. & Associates Suite 1325 111 Soledad Street San Antonio, TX 78205-0000

Cody Wofsy Direct: 415-343-0785 Email: cwofsy@aclu.org [COR NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111

RAUL L. REYES, in his official capacity as Mayor of El Cenizo, Texas
Defendant - Appellee

Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)

Spencer Amdur Direct: 415-343-1198 [COR NTC Retained] (see above)

Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)

Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)

Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)

Andre Segura [COR NTC Retained] (see above)

MAVERICK COUNTY, TEXAS Defendant - Appellee

Trisha Trigilio Direct: 713-942-8146 [NTC Retained] (see above)
Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 [NTC Retained] (see above)
Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)
Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)
Spencer Amdur Direct: 415-343-1198 [COR NTC Retained] (see above)
Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)
Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)
Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)
Andre Segura [COR NTC Retained] (see above)
Trisha Trigilio Direct: 713-942-8146 [NTC Retained]

(see above)

Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 [NTC Retained] (see above)

Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)

TOM SCHMERBER, in his official capacity as Sheriff of Lee P. Gelernt, Esq.

Maverick County, Texas

Direct: 212-549-2616

Defendant - Appellee

[COR LD NTC Retained]

(see above)

Spencer Amdur Direct: 415-343-1198 [COR NTC Retained] (see above)

Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)

Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)

Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)

Andre Segura [COR NTC Retained] (see above)

Trisha Trigilio Direct: 713-942-8146 [NTC Retained] (see above)

Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300

MARIO A. HERNANDEZ, in his official capacity as Constable Precinct 3-1 of Maverick County, Texas
Defendant - Appellee

[NTC Retained] (see above)
Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)
Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)
Spencer Amdur Direct: 415-343-1198 [COR NTC Retained] (see above)
Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)
Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)
Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)
Andre Segura [COR NTC Retained] (see above)
Trisha Trigilio Direct: 713-942-8146 [NTC Retained] (see above)
Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 [NTC Retained] (see above)
Cody Wofsy

TEXAS ORGANIZING PROJECT EDUCATION FUND Defendant - Appellee
LEAGUE OF UNITED LATIN AMERICAN CITIZENS Defendant - Appellee

Direct: 415-343-0785 [COR NTC Retained] (see above)
Efren Carlos Olivares Direct: 956-787-8171 Email: efren@texascivilrightsproject.org Fax: 956-787-6348 [COR LD NTC Retained] South Texas Civil Rights Project P.O. Box 219 Alamo, TX 78516
Mimi Murray Digby Marziani Direct: 512-474-5073 Email: mimi@texascivilrightsproject.org Fax: 512-474-0726 [NTC Retained] Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741-3438
Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)
Spencer Amdur Direct: 415-343-1198 [COR NTC Retained] (see above)
Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)
Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)
Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)
Andre Segura

[COR NTC Retained] (see above)

Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)

TEXAS; KEN PAXTON, in his official capacity as Texas Attorney General,

Plaintiffs - Appellants

v.

TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas; CITY OF AUSTIN, TEXAS; ORA HOUSTON, in her official capacity as City Council Member of the City of Austin, Texas; DELIA GARZA, in her official capacity as City Council Member of the City of Austin, Texas; SABINO RENTERIA, in his official capacity as City Council Member of the City of Austin, Texas; GREGORIO CASAR, in his official capacity as City Council Member of the City of Austin, Texas; ANN KITCHEN, in her official capacity as City Council Member of the City of Austin, Texas; JIMMY FLANNIGAN, in his official capacity as City Council Member of the City of Austin, Texas; LESLIE POOL, in her official capacity as City Council Member of the City of Austin, Texas; ELLEN TROXCLAIR, in her official capacity as City Council Member of the City of Austin, Texas; KATHIE TOVO, in her official capacity as City Council Member of the City of Austin, Texas; ALISON ALTER, in her official capacity as City Council Member of the City of Austin, Texas; STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso County, Texas; CITY OF EL CENIZO, TEXAS; RAUL L. REYES, in his official capacity as Mayor of El Cenizo, Texas; MAVERICK COUNTY, TEXAS; TOM SCHMERBER, in his official capacity as Sheriff of Maverick County, Texas; MARIO A. HERNANDEZ, in his official capacity as Constable Precinct 3-1 of Maverick County, Texas; TEXAS ORGANIZING PROJECT EDUCATION FUND; LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

Defendants - Appellees

09/05/2017

CIVIL RIGHTS CASE docketed. NOA filed by Appellants Mr. Ken Paxton and

2 pg, 85.43 KB Texas [17-50763] (NFD) [Entered: 09/05/2017 11:20 AM]

09/11/2017

COURT REPORTER ACKNOWLEDGEMENT received from Lily Iva Reznik. A

1 pg, 640.5 KB 17-CV-425 SS [17-50763] (Lily Iva Reznik ) [Entered: 09/11/2017 09:08 AM]

09/11/2017

APPEARANCE FORM John Sullivan for the court's review. Lead Counsel?

1 pg, 121.82 KB Yes. [17-50763] (John Clay Sullivan ) [Entered: 09/11/2017 01:00 PM]

09/11/2017 1 pg, 160.94 KB

APPEARANCE FORM received from Mr. Renea Hicks for League of United Latin American Citizens, City of El Cenizo, Texas, Mr. Raul L. Reyes, Mr. Tom Schmerber, Mr. Mario A. Hernandez and Maverick County, Texas for the court's review. Lead Counsel? No. [17-50763] (Renea Hicks ) [Entered: 09/11/2017 05:13 PM]

09/12/2017

APPEARANCE FORM Michael Siegel for the court's review. Lead Counsel?

1 pg, 151.05 KB Yes. [17-50763] (Michael Siegel ) [Entered: 09/12/2017 01:12 PM]

09/13/2017 3 pg, 147.49 KB

INITIAL CASE CHECK by Attorney Advisor complete, Action: Case OK to Process. [8589880-2] Initial AA Check Due satisfied.. Fee due on 09/28/2017 for Appellants Ken Paxton and Texas [17-50763] (PAC) [Entered: 09/13/2017 01:53 PM]

09/13/2017

APPEARANCE FORM FILED by Attorney(s) John Clay Sullivan for party(s) Appellant Texas Appellant Ken Paxton, in case 17-50763 [17-50763] (PAC) [Entered: 09/13/2017 02:15 PM]

09/13/2017

APPEARANCE FORM FILED by Attorney Renea Hicks for Appellee League of United Latin American Citizens in 17-50763, Attorney Renea Hicks for Appellee Mario A. Hernandez in 17-50763, Attorney Renea Hicks for Appellee Tom Schmerber in 17-50763, Attorney Renea Hicks for Appellee Maverick County, Texas in 17-50763, Attorney Renea Hicks for Appellee Raul L. Reyes in 17-50763, Attorney Renea Hicks for Appellee City of El Cenizo, Texas in 17-50763 [17-50763] (PAC) [Entered: 09/13/2017 02:18 PM]

09/13/2017

APPEARANCE FORM FILED by Attorney(s) Michael Siegel for party(s) Appellee City of Austin, Texas, in case 17-50763 [17-50763] (PAC) [Entered: 09/13/2017 02:20 PM]

09/14/2017 1 pg, 68.39 KB

APPEARANCE FORM for Sherine E. Thomas for the court's review. Lead Counsel? Yes. [17-50763] (Sherine Elizabeth Thomas ) [Entered: 09/14/2017 02:58 PM]

09/14/2017 1 pg, 67.94 KB

APPEARANCE FORM received from Mr. Anthony J. Nelson for Travis County, Texas and Ms. Sally Hernandez for the court's review. Lead Counsel? No. [17-50763] (Anthony J. Nelson ) [Entered: 09/14/2017 03:04 PM]

09/14/2017 1 pg, 60.86 KB

APPEARANCE FORM for Larie R. Eiserloh for the court's review. Lead Counsel? No. [17-50763] (Laurie R. Eiserloh ) [Entered: 09/14/2017 03:07 PM]

09/14/2017 1 pg, 73.72 KB

APPEARANCE FORM for Timothy R. Labadie for the court's review. Lead Counsel? No. [17-50763] (Timothy Robert Labadie ) [Entered: 09/14/2017 03:12 PM]

09/15/2017

APPEARANCE FORM for the court's review. Lead Counsel? No. [17-50763]

1 pg, 142.97 KB (Edgar Saldivar ) [Entered: 09/15/2017 01:49 PM]

09/15/2017

APPEARANCE FORM for the court's review. Lead Counsel? No. [17-50763]

1 pg, 133.67 KB (Andre Segura ) [Entered: 09/15/2017 01:50 PM]

09/18/2017

APPEARANCE FORM FILED by Attorney Anthony J. Nelson for Appellee Sally Hernandez in 17-50763, Attorney Anthony J. Nelson for Appellee

Travis County, Texas in 17-50763 [17-50763] (LEF) [Entered: 09/18/2017 04:12 PM]

09/18/2017

APPEARANCE FORM FILED by Attorney(s) Sherine Elizabeth Thomas for party(s) Appellee Travis County, Texas Appellee Sally Hernandez, in case 17-50763 [17-50763] (LEF) [Entered: 09/18/2017 04:18 PM]

09/18/2017

APPEARANCE FORM FILED by Attorney(s) Laurie R. Eiserloh for party(s) Appellee Travis County, Texas Appellee Sally Hernandez, in case 17-50763 [17-50763] (LEF) [Entered: 09/18/2017 04:24 PM]

09/19/2017

Attorney Andre Segura is advised to resubmit an appearance form using

1 pg, 75.22 KB the correct short title. [17-50763] (LBM) [Entered: 09/19/2017 10:53 AM]

09/19/2017

APPEARANCE FORM FILED by Attorney Efren Carlos Olivares for Appellee Texas Organizing Project Education Fund in 17-50763 [17-50763] (MRW) [Entered: 09/19/2017 12:04 PM]

09/19/2017 1 pg, 59.11 KB

APPEARANCE FORM received from Mr. Jose Garza for El Paso County, Texas and Mr. Richard Wiles for the court's review. Lead Counsel? Yes. [17-50763] (Jose Garza ) [Entered: 09/19/2017 12:17 PM]

09/19/2017

APPEARANCE FORM Resubmitted for the court's review. Lead Counsel?

1 pg, 43.17 KB No. [17-50763] (Andre Segura ) [Entered: 09/19/2017 12:27 PM]

09/19/2017

Attorney Edgar Saldivar is advised to resubmit an appearance form using

1 pg, 76.46 KB the correct short title. [17-50763] (LBM) [Entered: 09/19/2017 12:56 PM]

09/20/2017 1 pg, 55.04 KB

APPEARANCE FORM received from Mr. Michael Patrick Moran for El Paso County, Texas and Mr. Richard Wiles for the court's review. Lead Counsel? No. [17-50763] (Michael Patrick Moran ) [Entered: 09/20/2017 11:48 AM]

09/20/2017

APPEARANCE FORM Lee Gelernt for the court's review. Lead Counsel? Yes.

1 pg, 107.58 KB [17-50763] (Lee P. Gelernt ) [Entered: 09/20/2017 02:30 PM]

09/20/2017

APPEARANCE FORM Resubmitted for the court's review. Lead Counsel?

1 pg, 43.92 KB No. [17-50763] (Edgar Saldivar ) [Entered: 09/20/2017 08:02 PM]

09/21/2017

APPEARANCE FORM FILED by Attorney Jose Garza for Appellee Richard Wiles in 17-50763, Attorney Jose Garza for Appellee El Paso County, Texas in 17-50763 [17-50763] (PAC) [Entered: 09/21/2017 11:59 AM]

09/21/2017

APPEARANCE FORM FILED by Attorney(s) Andre Segura for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [1750763] (PAC) [Entered: 09/21/2017 12:02 PM]

09/21/2017

APPEARANCE FORM FILED by Attorney Michael Patrick Moran for Appellee Richard Wiles in 17-50763, Attorney Michael Patrick Moran for Appellee El Paso County, Texas in 17-50763 [17-50763] (PAC) [Entered: 09/21/2017 12:05 PM]

09/21/2017

APPEARANCE FORM FILED by Attorney(s) Lee P. Gelernt for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [1750763] (PAC) [Entered: 09/21/2017 12:08 PM]

09/21/2017

APPEARANCE FORM FILED by Attorney(s) Edgar Saldivar for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [1750763] (PAC) [Entered: 09/21/2017 12:10 PM]

09/21/2017 1 pg, 219.67 KB

DOCUMENT RECEIVED - NO ACTION TAKEN. No action will be taken at this time on the appearance form received 9/19/17 from Efren Carlos Olivares because it's a duplicate form [17-50763] (PAC) [Entered: 09/21/2017 12:12 PM]

09/22/2017

APPEARANCE FORM Austin Nimocks for the court's review. Lead Counsel?

1 pg, 173.74 KB No. [17-50763] (David Austin Robert Nimocks ) [Entered: 09/22/2017

09:38 AM]

09/22/2017

APPEARANCE FORM David Hacker for the court's review. Lead Counsel?

1 pg, 165.99 KB No. [17-50763] (David J. Hacker ) [Entered: 09/22/2017 09:41 AM]

09/25/2017 1 pg, 72.12 KB

Attorney David Austin Robert Nimocks is advised to resubmit an appearance form using the correct case number. Also, the address listed on your appearance form does not match that which is listed in our records. . [17-50763] (LBM) [Entered: 09/25/2017 02:04 PM]

09/26/2017

APPEARANCE FORM FILED by Attorney(s) David J. Hacker for party(s) Appellant Texas Appellant Ken Paxton, in case 17-50763 [17-50763] (CNF) [Entered: 09/26/2017 11:12 AM]

09/26/2017

APPEARANCE FORM David Austin Nimocks for the court's review. Lead

1 pg, 202.18 KB Counsel? No. [17-50763] (David Austin Robert Nimocks ) [Entered:

09/26/2017 01:55 PM]

09/27/2017

APPEARANCE FORM FILED by Attorney(s) David Austin Robert Nimocks for party(s) Appellant Texas Appellant Ken Paxton, in case 17-50763 [1750763] (NFD) [Entered: 09/27/2017 03:41 PM]

10/09/2017

FEE PAID by Appellants Mr. Ken Paxton and Texas. Fee deadline satisfied [17-50763] (MVM) [Entered: 10/09/2017 03:14 PM]

10/10/2017

ELECTRONIC RECORD ON APPEAL REQUESTED FROM DISTRICT COURT for 1:17-CV-425. Electronic ROA due on 10/25/2017. [17-50763] (MVM) [Entered: 10/09/2017 03:15 PM]

10/26/2017

ELECTRONIC RECORD ON APPEAL FILED. Exhibits on File in District Court? No. Electronic ROA deadline satisfied. [17-50763] (MRB) [Entered: 10/26/2017 02:34 PM]

10/26/2017

BRIEFING NOTICE ISSUED A/Pet's Brief Due on 12/05/2017 for Appellants

5 pg, 93.88 KB Ken Paxton and Texas. [17-50763] (MRB) [Entered: 10/26/2017 02:35 PM]

11/27/2017 4 pg, 51.97 KB

UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas to extend time to file brief as appellant until 12/19/2017 [8646709-2]. Date of service: 11/27/2017 [17-50763] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas to extend time to file brief as appellant until 12/19/2017 at 11:59 pm [8646709-2]. Date of service: 11/27/2017 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail - Attorney for Appellees: Champion, Marziani [17-50763] (John Clay Sullivan ) [Entered: 11/27/2017 05:03 PM]

11/28/2017 1 pg, 131.23 KB

CLERK ORDER granting unopposed motion to extend time to file appellant's brief filed by Appellants Mr. Ken Paxton and Texas [8646709-2] A/Pet's Brief deadline updated to 12/19/2017 for Appellants Ken Paxton and Texas [17-50763] (CMB) [Entered: 11/28/2017 09:39 AM]

12/19/2017

SUFFICIENT RECORD EXCERPTS FILED. Sufficient Record Excerpts deadline

44 pg, 876.97 KB satisfied. Paper Copies of Record Excerpts due on 01/09/2018 for

Appellants Ken Paxton and Texas. [17-50763] REVIEWED AND/OR EDITED -

The original text prior to review appeared as follows: RECORD EXCERPTS

FILED. Record Excerpts NOT Sufficient as they require table of contents do

not include the proper citations to the record on appeal. Instructions to

Attorney: PLEASE READ THE ATTACHED NOTICE FOR INSTRUCTIONS ON

HOW TO REMEDY THE DEFAULT. # of Copies Provided: 0 Sufficient Record

Excerpts due on 01/05/2018 for Appellants Ken Paxton and Texas [17-

50763] REVIEWED AND/OR EDITED - The original text prior to review

appeared as follows: RECORD EXCERPTS FILED by Appellants Mr. Ken

Paxton and Texas. Record Excerpts Date of service: 12/19/2017 via email -

Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for

Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks,

Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas,

Trigilio, Vera; US mail - Attorney for Appellees: Champion, Marziani [17-

50763] (John Clay Sullivan ) [Entered: 12/19/2017 10:53 PM]

12/19/2017

APPELLANT'S BRIEF FILED # of Copies Provided: 0

55 pg, 436.83 KB A/Pet's Brief deadline satisfied. Appellee's Brief due on 01/18/2018 for

Appellees Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas,

City of El Cenizo, Texas, El Paso County, Texas, Jimmy Flannigan, Delia

Garza, Elaine Hart, Mario A. Hernandez, Sally Hernandez, Ora Houston,

Ann Kitchen, League of United Latin American Citizens, Maverick County,

Texas, Mexican American Legal Defense and Education Fund, Leslie Pool,

Sabino Renteria, Raul L. Reyes, Tom Schmerber, Texas Organizing Project

Education Fund, Kathie Tovo, Travis County, Texas, Ellen Troxclair and

Richard Wiles. Paper Copies of Brief due on 12/27/2017 for Appellants Ken

Paxton and Texas. [17-50763]

REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLANT'S BRIEF FILED by Mr. Ken Paxton and Texas. 12/19/2017 Date of service: 12/19/2017 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail Attorney for Appellees: Champion, Marziani [17-50763] (John Clay Sullivan ) [Entered: 12/19/2017 11:09 PM]

12/29/2017 0 pg, 0 KB

PROPOSED SUFFICIENT RECORD EXCERPTS filed by Appellants Mr. Ken Paxton and Texas in 17-50763 [8663423-2] Proposed sufficient Record Excerpts Date of service: 12/29/2017 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail Attorney for Appellees: Champion, Marziani [17-50763] (John Clay Sullivan ) [Entered: 12/29/2017 02:50 PM]

01/02/2018

Paper copies of Appellant Brief filed by Appellants Mr. Ken Paxton and Texas in 17-50763 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [17-50763] (NFD) [Entered: 01/02/2018 03:07 PM]

01/05/2018 5 pg, 29.14 KB

UNOPPOSED MOTION filed by Appellees Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, City of El Cenizo, Texas, El Paso County, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Mario A. Hernandez, Sally Hernandez, Ora Houston, Ann Kitchen, League of United Latin American Citizens, Maverick County, Texas, Leslie Pool, Sabino Renteria, Raul L. Reyes, Tom Schmerber, Texas Organizing Project Education Fund, Travis County, Texas, Kathie Tovo, Ellen Troxclair and Richard Wiles to extend time to file brief of appellees until 02/20/2018 [8672635-2]. Date of service: 01/05/2018 [17-50763] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: UNOPPOSED LEVEL 1 EXTENSION REQUESTED by Appellee City of Austin, Texas for filing Defendants-Appellees' Briefs until 02/20/2018. [17-50763] (Michael Siegel ) [Entered: 01/05/2018 08:13 AM]

01/05/2018 1 pg, 129.87 KB

CLERK ORDER granting in part Motion filed by Appellees Appellees El Paso County, Texas, Travis County, Texas, City of Austin, Texas, League of United Latin American Citizens, Mr. Richard Wiles, Mr. Steve Adler, City of El Cenizo, Texas, Mr. Raul L. Reyes, Mr. Tom Schmerber, Mr. Mario A. Hernandez, Ms. Sally Hernandez, Ms. Ora Houston, Ms. Delia Garza, Mr. Sabino Renteria, Mr. Gregorio Casar, Ms. Ann Kitchen, Mr. Jimmy Flannigan, Ms. Leslie Pool, Ms. Ellen Troxclair, Ms. Kathie Tovo, Ms. Alison Alter, Ms. Elaine Hart, Texas Organizing Project Education Fund and Maverick County, Texas to extend time to file brief [8672635-2] E/Res's Brief deadline updated to 02/16/2018 for Appellees City of Austin, Texas, City of El Cenizo, Texas, El Paso County, Texas, Mario A. Hernandez, Sally Hernandez, League of United Latin American Citizens, Maverick County,

Texas, Raul L. Reyes, Tom Schmerber, Texas Organizing Project Education Fund, Travis County, Texas, Richard Wiles, Steve Adler, Alison Alter, Gregorio Casar, Jimmy Flannigan, Delia Garza, Elaine Hart, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo and Ellen Troxclair [17-50763] (CMB) [Entered: 01/05/2018 12:40 PM]

01/08/2018 2 pg, 144.94 KB

Paper copies of Record Excerpts filed by Appellants Mr. Ken Paxton and Texas in 17-50763 received. Paper copies match electronic version of document? Yes - However, need physical tabs that extend beyond the documents # of Copies Provided: 4. Paper Copies of Record Excerpts due deadline satisfied.. Sufficient Paper Copies of Record Excerpts Due on 01/16/2018 for Appellants Ken Paxton and Texas. [17-50763] (NFD) [Entered: 01/09/2018 11:20 AM]

01/29/2018

NOTICE ISSUED TO APPELLEE - Brief is overdue. Motion to file brief out of

2 pg, 133.59 KB time due on 02/08/2018 for Appellee Mexican American Legal Defense

and Education Fund [17-50763] (CMB) [Entered: 01/29/2018 02:34 PM]

01/29/2018 2 pg, 133.81 KB

DISMISSAL NOTICE ISSUED for failure to submit sufficient paper copies of the record excerpts [8690819-2] DIS-1 Remedy due on 02/05/2018 for Appellants Ken Paxton and Texas. [17-50763] (CMB) [Entered: 01/29/2018 03:04 PM]

01/30/2018

Paper copies of Record Excerpts [8675416-2] received as sufficient. Sufficient Paper Copies of Record Excerpts due deadline satisfied. [1750763] (NFD) [Entered: 02/01/2018 07:58 AM]

02/01/2018

APPEARANCE FORM received from Mr. Michael Siegel for City of Austin,

1 pg, 111.72 KB Texas for the court's review. Lead Counsel? Yes. [17-50763] (Michael

Siegel ) [Entered: 02/01/2018 10:08 AM]

02/01/2018 1 pg, 104.84 KB

APPEARANCE FORM received from Mr. Christopher Coppola for City of Austin, Texas, Mr. Steve Adler, Ms. Ora Houston, Ms. Delia Garza, Mr. Sabino Renteria, Mr. Gregorio Casar, Ms. Ann Kitchen, Mr. Jimmy Flannigan, Ms. Leslie Pool, Ms. Ellen Troxclair, Ms. Kathie Tovo, Ms. Alison Alter and Ms. Elaine Hart for the court's review. Lead Counsel? No. [1750763] (Christopher Coppola ) [Entered: 02/01/2018 10:13 AM]

02/01/2018 1 pg, 111.72 KB

APPEARANCE FORM received from Mr. Michael Siegel for City of Austin, Texas Ora Houston, Delia Garza, Ann Kitchen, Sabino Renteria, Gregorio Casar, Jimmy Flannigan, Leslie Pool, Ellen Troxclair, Kathie Tovo, Alison Alter, Steve Adler, and Elaine Hart for the court's review. Lead Counsel? Yes. [17-50763] (Michael Siegel ) [Entered: 02/01/2018 10:26 AM]

02/02/2018

APPEARANCE FORM FILED by Attorney Christopher Coppola for Appellee Elaine Hart in 17-50763, Attorney Christopher Coppola for Appellee Steve Adler in 17-50763, Attorney Christopher Coppola for Appellee Alison Alter in 17-50763, Attorney Christopher Coppola for Appellee Kathie Tovo in 1750763, Attorney Christopher Coppola for Appellee Ellen Troxclair in 1750763, Attorney Christopher Coppola for Appellee Leslie Pool in 17-50763,

Attorney Christopher Coppola for Appellee Jimmy Flannigan in 17-50763, Attorney Christopher Coppola for Appellee Ann Kitchen in 17-50763, Attorney Christopher Coppola for Appellee Gregorio Casar in 17-50763, Attorney Christopher Coppola for Appellee Sabino Renteria in 17-50763, Attorney Christopher Coppola for Appellee Delia Garza in 17-50763, Attorney Christopher Coppola for Appellee Ora Houston in 17-50763, Attorney Christopher Coppola for Appellee City of Austin, Texas in 1750763 [17-50763] (PAC) [Entered: 02/02/2018 09:39 AM]

02/02/2018

APPEARANCE FORM FILED by Attorney Michael Siegel for Appellee City of Austin, Texas in 17-50763, by Attorney(s) Michael Siegel for party(s) Appellee Ann Kitchen Appellee Gregorio Casar Appellee Jimmy Flannigan Appellee Leslie Pool Appellee Ora Houston Appellee Elaine Hart Appellee Delia Garza Appellee Ellen Troxclair Appellee Steve Adler Appellee Kathie Tovo Appellee Alison Alter Appellee Sabino Renteria, in case 17-50763 [1750763] (PAC) [Entered: 02/02/2018 09:41 AM]

02/12/2018 2 pg, 138.42 KB

FILING OVERDUE BRIEF NOTICE dated 01/29/2018 issued to Appellee Mexican American Legal Defense and Education Fund. No response received. E/Res's Brief deadline canceled. Motion due deadline satisfied. [17-50763] (CMB) [Entered: 02/12/2018 07:38 AM]

02/14/2018

APPEARANCE FORM for the court's review. Lead Counsel? No. [17-50763]

1 pg, 107.39 KB (Spencer Amdur ) [Entered: 02/14/2018 05:31 PM]

02/14/2018

APPEARANCE FORM for the court's review. Lead Counsel? No. [17-50763]

1 pg, 107.37 KB (Cody Wofsy ) [Entered: 02/14/2018 05:48 PM]

02/14/2018

APPEARANCE FORM for the court's review. Lead Counsel? No. [17-50763]

1 pg, 107.4 KB (Omar C. Jadwat ) [Entered: 02/14/2018 05:53 PM]

02/16/2018

Attorney Spencer Amdur is advised to resubmit an appearance form using

1 pg, 128.75 KB the correct short title. [17-50763] (LBM) [Entered: 02/16/2018 09:03 AM]

02/16/2018

Attorney Cody Wofsy is advised to resubmit an appearance form using the

1 pg, 128.5 KB correct short title. [17-50763] (LBM) [Entered: 02/16/2018 09:39 AM]

02/16/2018

Attorney Omar Jadwat is advised to resubmit an appearance form using

1 pg, 129.22 KB the correct short title [17-50763] (LBM) [Entered: 02/16/2018 10:33 AM]

02/16/2018

SUFFICIENT APPELLEE'S BRIEF FILED Sufficient Brief deadline satisfied.

60 pg, 688.99 KB Paper Copies of Brief due on 03/05/2018 for Appellees Steve Adler, Alison

Alter, Gregorio Casar, City of Austin, Texas, City of El Cenizo, Texas, Jimmy

Flannigan, Delia Garza, Elaine Hart, Mario A. Hernandez, Sally Hernandez,

Ora Houston, Ann Kitchen, League of United Latin American Citizens,

Maverick County, Texas, Leslie Pool, Sabino Renteria, Raul L. Reyes, Tom

Schmerber, Texas Organizing Project Education Fund, Kathie Tovo, Travis

County, Texas and Ellen Troxclair. [17-50763]

REVIEWED AND/OR EDITED - The original text prior to review appeared as

follows: APPELLEE'S BRIEF FILED by Mr. Steve Adler, Ms. Alison Alter, Mr.

Gregorio Casar, City of Austin, Texas, Mr. Jimmy Flannigan, Ms. Delia

Garza, Ms. Elaine Hart, Ms. Sally Hernandez, Ms. Ora Houston, Ms. Ann Kitchen, Ms. Leslie Pool, Mr. Sabino Renteria, Texas Organizing Project Education Fund, Ms. Kathie Tovo, Travis County, Texas and Ms. Ellen Troxclair. Brief is INSUFFICIENT: Incorrect Caption. Instructions to Attorney: PLEASE READ THE ATTACHED NOTICE FOR INSTRUCTIONS ON HOW TO REMEDY THE DEFAULT. E/Res's Brief deadline satisfied. Sufficient Brief due on 03/07/2018 for Appellees Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, City of El Cenizo, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Mario A. Hernandez, Sally Hernandez, Ora Houston, Ann Kitchen, League of United Latin American Citizens, Maverick County, Texas, Leslie Pool, Sabino Renteria, Raul L. Reyes, Tom Schmerber, Texas Organizing Project Education Fund, Kathie Tovo, Travis County, Texas and Ellen Troxclair.. Reply Brief due on 03/02/2018 for Appellants Ken Paxton and Texas [17-50763] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLEE'S BRIEF FILED by City of El Cenizo, Texas, Mr. Mario A. Hernandez, League of United Latin American Citizens, Maverick County, Texas, Mr. Raul L. Reyes and Mr. Tom Schmerber. Travis County, Texas, Sally Hernandez, City of Austin, Texas, Ora Houston, Delia Garza, Sabino Renteria, Gregorio Cesar, Ann Kitchen, Jimmy Flannigan, Leslie Pool, Ellen Troxclair, Kathie Tovo, Alison Alter, Steve Adler, Elaine Hart, TOPAF. Date of service: 02/16/2018 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail Attorney for Appellees: Champion, Marziani [17-50763] (Lee P. Gelernt ) [Entered: 02/16/2018 04:55 PM]

02/16/2018

SUFFICIENT APPELLEE'S BRIEF FILED Sufficient Brief deadline satisfied.

51 pg, 646.78 KB Paper Copies of Brief due on 03/05/2018 for Appellees El Paso County,

Texas and Richard Wiles. [17-50763] REVIEWED AND/OR EDITED - The

original text prior to review appeared as follows: APPELLEE'S BRIEF FILED

Brief is INSUFFICIENT: brief needs Mr. Moran signature as he is the one

who electronically filed the brief.. Instructions to Attorney: PLEASE READ

THE ATTACHED NOTICE FOR INSTRUCTIONS ON HOW TO REMEDY THE

DEFAULT. E/Res's Brief deadline satisfied. Sufficient Brief due on

03/07/2018 for Appellees El Paso County, Texas and Richard Wiles. [17-

50763] REVIEWED AND/OR EDITED - The original text prior to review

appeared as follows: APPELLEE'S BRIEF FILED by El Paso County, Texas and

Mr. Richard Wiles. Date of service: 02/16/2018 via email - Attorney for

Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees:

Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson,

Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail -

Attorney for Appellees: Champion, Marziani [17-50763] (Michael Patrick

Moran ) [Entered: 02/16/2018 08:46 PM]

02/20/2018

APPEARANCE FORM for the court's review. Lead Counsel? No. [17-50763]

1 pg, 107.44 KB (Omar C. Jadwat ) [Entered: 02/20/2018 04:55 PM]

02/20/2018

APPEARANCE FORM for the court's review. Lead Counsel? No. [17-50763]

1 pg, 107.41 KB (Cody Wofsy ) [Entered: 02/20/2018 04:57 PM]

02/20/2018

APPEARANCE FORM for the court's review. Lead Counsel? No. [17-50763]

1 pg, 107.41 KB (Spencer Amdur ) [Entered: 02/20/2018 05:02 PM]

02/21/2018

APPEARANCE FORM FILED by Attorney(s) Omar C. Jadwat for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [1750763] (NFD) [Entered: 02/21/2018 04:02 PM]

02/21/2018

APPEARANCE FORM FILED by Attorney(s) Cody Wofsy for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [1750763] (NFD) [Entered: 02/21/2018 04:04 PM]

02/21/2018

APPEARANCE FORM FILED by Attorney(s) Spencer Amdur for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [1750763] (NFD) [Entered: 02/21/2018 04:05 PM]

02/21/2018 0 pg, 0 KB

PROPOSED SUFFICIENT BRIEF filed by Appellees Travis County, Texas, City of Austin, Texas, League of United Latin American Citizens, Mr. Steve Adler, City of El Cenizo, Texas, Mr. Raul L. Reyes, Mr. Tom Schmerber, Mr. Mario A. Hernandez, Ms. Sally Hernandez, Ms. Ora Houston, Ms. Delia Garza, Mr. Sabino Renteria, Mr. Gregorio Casar, Ms. Ann Kitchen, Mr. Jimmy Flannigan, Ms. Leslie Pool, Ms. Ellen Troxclair, Ms. Kathie Tovo, Ms. Alison Alter, Ms. Elaine Hart, Texas Organizing Project Education Fund and Maverick County, Texas in 17-50763 [8705673-2] Date of service: 02/21/2018 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Amdur, Bono, Champion, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy; US mail Attorney for Appellees: Champion, Marziani [17-50763] (Lee P. Gelernt ) [Entered: 02/21/2018 06:22 PM]

02/22/2018 0 pg, 0 KB

PROPOSED SUFFICIENT BRIEF filed by Appellees El Paso County, Texas and Mr. Richard Wiles in 17-50763 [8705701-2] Date of service: 02/22/2018 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Amdur, Bono, Champion, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Marziani, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy [17-50763] (Michael Patrick Moran ) [Entered: 02/22/2018 02:06 PM]

02/28/2018 4 pg, 57.46 KB

UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas, to extend time to file reply brief until 03/16/2018 [8714739-2]. Date of service: 02/28/2018 [17-50763]

REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: UNOPPOSED LEVEL 1 EXTENSION REQUESTED by Appellants Mr. Ken Paxton and Texas for filing Appellants' Reply Brief until 03/16/2018 at 11:59 pm JCS. [17-50763] (John Clay Sullivan ) [Entered: 02/28/2018 01:51 PM]

03/01/2018 1 pg, 141.4 KB

CLERK ORDER granting Motion to extend time to file reply brief filed by Appellants Mr. Ken Paxton and Texas [8714739-2] Reply Brief deadline updated to 03/16/2018 for Appellants Ken Paxton and Texas [17-50763] (MVM) [Entered: 03/01/2018 03:41 PM]

03/02/2018

Paper copies of Appellee Brief filed by Appellees Travis County, Texas, City of Austin, Texas, League of United Latin American Citizens, Mr. Steve Adler, City of El Cenizo, Texas, Mr. Raul L. Reyes, Mr. Tom Schmerber, Mr. Mario A. Hernandez, Ms. Sally Hernandez, Ms. Ora Houston, Ms. Delia Garza, Mr. Sabino Renteria, Mr. Gregorio Casar, Ms. Ann Kitchen, Mr. Jimmy Flannigan, Ms. Leslie Pool, Ms. Ellen Troxclair, Ms. Kathie Tovo, Ms. Alison Alter, Ms. Elaine Hart, Texas Organizing Project Education Fund and Maverick County, Texas in 17-50763 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [17-50763] (MRW) [Entered: 03/02/2018 12:34 PM]

03/05/2018

Paper copies of Appellee Brief filed by Appellees El Paso County, Texas and Mr. Richard Wiles in 17-50763 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [17-50763] (NFD) [Entered: 03/05/2018 03:45 PM]

03/16/2018

APPELLANT'S REPLY BRIEF FILED # of Copies Provided: 0

30 pg, 340.95 KB Reply Brief deadline satisfied. Paper Copies of Brief due on 04/02/2018 for

Appellants Ken Paxton and Texas. [17-50763]

REVIEWED AND/OR EDITED - The original text prior to review appeared as

follows: APPELLANT'S REPLY BRIEF FILED by Mr. Ken Paxton and Texas. J.

Sullivan Date of service: 03/16/2018 via email - Attorney for Appellants:

Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Amdur, Bono,

Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Moran, Nelson,

Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy;

US mail - Attorney for Appellees: Champion, Marziani [17-50763] (John

Clay Sullivan ) [Entered: 03/16/2018 04:06 PM]

03/28/2018

Paper copies of Appellant Reply Brief filed by Appellants Mr. Ken Paxton and Texas in 17-50763 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [17-50763] (SDH) [Entered: 04/05/2018 09:23 AM]

04/05/2018

ATTORNEYS NOT PARTICIPATING. Cassandra L. Champion and Darren L. McCarty is designated as inactive in this case. Reason: No Appearance form filed/not listed on brief. [17-50763] (PFT) [Entered: 04/05/2018 11:08 AM]

05/14/2018

APPEARANCE FORM Jack Salmon for the court's review. Lead Counsel?

1 pg, 107.64 KB Yes. [17-50763] (John Paul Salmon ) [Entered: 05/14/2018 04:41 PM]

05/21/2018

APPEARANCE FORM FILED by Attorney(s) John Paul Salmon for party(s) Appellee Mexican American Legal Defense and Education Fund, in case 1750763 [17-50763] (SDH) [Entered: 05/21/2018 10:04 AM]

05/22/2018 9 pg, 49.77 KB

UNOPPOSED MOTION filed by Appellee Mexican American Legal Defense and Education Fund for partial dismissal of appeal as to Mexican American Legal Defense and Educational Fund. Date of service: 05/22/2018 via email - Attorney for Appellants: Hacker, Nimocks, Sullivan; Attorney for Appellees: Amdur, Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Moran, Nelson, Olivares, Saldivar, Salmon, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy; US mail - Attorney for Appellee: Marziani [17-50763] (John Paul Salmon ) [Entered: 05/22/2018 09:13 AM]

05/25/2018 4 pg, 178.14 KB

COURT ORDER granting Motion for partial dismissal of appeal filed by Appellee Mexican American Legal Defense and Education Fund [87815912] Involvement terminated for Appellee Mexican American Legal Defense and Education Fund in 17-50763. Judge(s): PEH, EHJ and GJC. [17-50763] (MVM) [Entered: 05/25/2018 11:44 AM]

07/09/2018

CASE TENTATIVELY calendared for oral argument for the week of

2 pg, 140.68 KB 09/03/2018. [17-50763] (GAM) [Entered: 07/08/2018 11:13 AM]

07/16/2018 4 pg, 50.99 KB

UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas(J. Sullivan) to continue oral argument [8826133-2]. Date of service: 07/16/2018 via email - Attorney for Appellants: Hacker, Nimocks, Sullivan; Attorney for Appellees: Amdur, Coppola, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Marziani, Moran, Nelson, Olivares, Saldivar, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy [17-50763] (John Clay Sullivan ) [Entered: 07/16/2018 05:40 PM]

07/27/2018

CASE CALENDARED for oral argument on Wednesday, 09/05/2018 in New Orleans in the En Banc Courtroom -- AM session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars.. [17-50763] (KMP) [Entered: 07/27/2018 02:43 PM]

08/03/2018

COURT ORDER granting Motion to continue oral argument filed by

3 pg, 194.88 KB Appellants Mr. Ken Paxton and Texas [8826133-2] [17-50763] (MVM)

[Entered: 08/03/2018 07:33 AM]

08/03/2018

CALENDARED CASE CONTINUED. See court order of this date.[17-50763] (GAM) [Entered: 08/03/2018 08:46 AM]

08/03/2018

CASE TENTATIVELY calendared for oral argument for the week of

2 pg, 155.47 KB 11/05/2018. [17-50763] (GAM) [Entered: 08/03/2018 03:39 PM]

09/05/2018 6 pg, 75.33 KB

MOTION filed by Attorney Mr. Michael Patrick Moran for Appellees El Paso County, Texas and Mr. Richard Wiles to withdraw as counsel [8867406-2]. Date of Service: 09/05/2018 via email - Attorney for Appellants: Hacker, Nimocks, Sullivan; Attorney for Appellees: Amdur, Coppola, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Marziani, Moran, Nelson, Olivares, Saldivar, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy [17-50763] (Michael Patrick Moran ) [Entered: 09/05/2018 04:05 PM]

09/06/2018

CLERK ORDER granting Motion to withdraw as counsel filed by Mr. Michael

1 pg, 155.99 KB Patrick Moran [8867406-2] [17-50763] (MVM) [Entered: 09/06/2018 10:58

AM]

09/25/2018

CASE CALENDARED for oral argument on Monday, 11/05/2018 in Houston -- AM session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars.. [17-50763] (PFT) [Entered: 09/25/2018 04:07 PM]

10/15/2018

ATTORNEY NOT PARTICIPATING. David Nimocks is designated as inactive in this case. Reason:no longer with AG's office. [17-50763] (MBC) [Entered: 10/15/2018 10:22 AM]

11/05/2018

ORAL ARGUMENT HEARD before Judges Reavley, Elrod, Higginson. Arguing Person Information Updated for: Spencer Amdur arguing for Appellee Texas City of El Cenizo, Appellee Mario A. Hernandez, Appellee League of United Latin American Citizens, Appellee Texas Maverick County, Appellee Raul L. Reyes; Arguing Person Information Updated for: Jose Garza arguing for Appellee Texas El Paso County; Arguing Person Information Updated for: John Clay Sullivan arguing for Appellant Ken Paxton [17-50763] (PFT) [Entered: 11/05/2018 11:09 AM]

12/12/2018

PUBLISHED OPINION FILED. [17-50763 Affirmed ] Judge: TMR , Judge: JWE

8 pg, 254.85 KB , Judge: SAH. Mandate issue date is 01/03/2019 [17-50763] (NFD)

[Entered: 12/12/2018 04:33 PM]

12/12/2018

JUDGMENT ENTERED AND FILED. Costs Taxed Against: plaintiffs-

2 pg, 40.07 KB appellants. [17-50763] (NFD) [Entered: 12/12/2018 04:37 PM]

12/19/2018 4 pg, 63.88 KB

UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas to extend the time to file a rehearing until 01/25/2019 [8946124-2]. Date of service: 12/19/2018 via email - Attorney for Appellees: Amdur, Coppola, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Marziani, Nelson, Olivares, Saldivar, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy; Attorney for Appellants: Hacker, Sullivan [17-50763] (John Clay Sullivan ) [Entered: 12/19/2018 06:09 PM]

12/20/2018

COURT ORDER granting Motion to extend the time to file a petition for

3 pg, 209.89 KB rehearing filed by Appellants Mr. Ken Paxton and Texas [8946124-2] until

01/25/2019 Case Management deadline satisfied.. Mandate issue date

updated to 01/28/2019 [17-50763] (MVM) [Entered: 12/20/2018 10:30 AM]

01/28/2019

MANDATE ISSUED. Mandate issue date satisfied. [17-50763] (DTG)

9 pg, 241.94 KB [Entered: 01/28/2019 09:21 AM]

 
 Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 1 of 15
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:17−cv−00425−SS

CLOSED

Texas v. Travis County, Texas et al Assigned to: Judge Sam Sparks Demand: $0 Case in other court: USCA − 5th, 17−50763 Cause: 28:2201 Declaratory Judgment
Plaintiff
Texas

Date Filed: 05/07/2017 Date Terminated: 08/09/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Brantley Starr Deputy First Assistant Attorney General Office of the Attorney General P.O. Box 12548, Capitol Station Austin, TX 78711 512−936−8160 Fax: 512−936−0545 Email: brantley.starr@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darren L. McCarty Office of Texas Attorney General Executive Administration 240 W. 14th Street 7th Floor Austin, TX 78701 512−936−0594 Fax: 512−936−0545 Email: darren.mccarty@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Hacker Office of the Attorney General of Texas 209 W. 14th Street PDB, Ground Floor Austin, TX 78701 512−936−2330 Fax: 512−936−0545 Email: david.hacker@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Austin Robert Nimocks Texas Attorney General's Office 209 W. 14th Street, 8th Floor (Mail Code 001) Austin, TX 78701 512−936−1414 Email: elizabeth.saunders@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joel Stonedale Texas Attorney General 209 West 14th Street Austin, TX 78711 512−936−0677 Email: grace.moody@oag.texas.gov LEAD ATTORNEY

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 2 of 15

ATTORNEY TO BE NOTICED

Michael Christopher Toth Office of the Texas Attorney General 209 W. 14th St., 8th Floor Austin, TX 78701 (512) 936−0631 Email: michael.toth@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Drake Leonie , III Office of the Attorney General of Texas 209 W. 14th St., 8th Floor Austin, TX 78701 (512) 475−3281 Email: grace.moody@texasattorneygeneral.gov ATTORNEY TO BE NOTICED

Plaintiff
Ken Paxton in his official capacity as Texas Attorney General

represented by Brantley Starr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darren L. McCarty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Travis County, Texas

represented by Anthony J. Nelson Travis County Attorney's Office 314 West 11th Street Room 590 Austin, TX 78701 (512) 854−4801 Fax: 512/854−4808 Email: tony.nelson@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie R. Eiserloh Travis County Attorney's Office 314 W. 11th Street Ste 500 Austin, TX 78701 (512) 854−6906 Fax: 512/854−4808 Email: laurie.eiserloh@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Talley Travis County Attorney's Office PO Box 1748 Austin, TX 78767 (512) 854−9513 Fax: 512/854−4808 Email: sharon.talley@traviscountytx.gov LEAD ATTORNEY

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 3 of 15

ATTORNEY TO BE NOTICED

Sherine Elizabeth Thomas Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, TX 78767 (512) 854−9513 Fax: 512/854−4808 Email: sherine.thomas@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim Labadie Travis County Attorney's Office P. O. Box 1748 Austin, TX 78767 (512) 854−5864 Fax: 512−854−9316 Email: tim.labadie@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sally Hernandez in her official capacity as Sherriff of Travis County, Texas

represented by Anthony J. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie R. Eiserloh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon Talley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherine Elizabeth Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim Labadie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant City of Austin, Texas

represented by Christopher J. Coppola City of Austin P.O. Box 1546 Austin, TX 78767 512−974−2161 Fax: 512−974−1311 Email: christopher.coppola@austintexas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel City of Austin Law Department P.O. Box 1088 Austin, TX 78767

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 4 of 15

(512) 974−2268 Fax: (512) 974−1311 Email: michael.siegel@austintexas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ora Houston in her official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Delia Garza in her official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sabino Renteria in his official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gregorio Casar in his official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ann Kitchen in her official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 5 of 15

Jimmy Flannigan in his official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Leslie Pool in her official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ellen Troxclair in her official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kathie Tovo in her official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Alison Alter in her official capacity as City Council Member of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Steve Adler in his official capacity as Mayor of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address)

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 6 of 15

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Elaine Hart in her official capacity as Interim City Manager of the City of Austin, Texas

represented by Christopher J. Coppola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael John Weills Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mexican American Legal Defense and Education Fund

represented by David W. Dummer Sidley Austin, LLP 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 214−981−3300 Fax: 214−981−3400 Email: david.dummer@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jose F. Sanchez 3 Richland Place Pasadena, CA 91103 626−529−3703 Email: jsanchez695@earthlink.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Bono Maldef 110 Broadway #300 San Antonio, Tx 78205 (210) 224−5476 ext 204 Fax: 210/224−5382 Email: mbono@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nina Perales MALDEF [Mexican American Legal Defense & Educational Fund] 110 Broadway Street, #300 San Antonio, TX 78205 (210) 224−5476 Fax: 210/224−5382 Email: nperales@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yolanda Cornejo Garcia Sidley Austin, LLP 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 214−981−3414 Fax: 214−981−3400 Email: ygarcia@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 7 of 15

Celina Ysela Moreno Mexican American Legal Defense and Educational Fund 110 Broadway San Antonio, TX 78205 (210) 224−5476 Fax: (210) 224−5382 Email: cmoreno@maldef.org ATTORNEY TO BE NOTICED

Defendant El Paso County, Texas

represented by Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX 78209 210−392−2856 Email: jgarza@trla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Patrick Moran Garza Golando Moran, PLLC 405 N. St. Marys St., Ste. 700 San Antonio, TX 78205 210−892−8543 Email: michael@ggmtx.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard Wiles in his official capacity as Sheriff of El Paso County, Texas

represented by Jose Garza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Patrick Moran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant City of El Cenizo, Texas

represented by Luis Roberto Vera , Jr. Law Offices of Luis Roberto Vera & Associates, P.C. 111 Soledad Suite 1325 San Antonio, TX 78205−2260 (210) 225−3300 Fax: 210/225−2060 Email: lrvlaw@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Max Renea Hicks Law Office of Max Renea Hicks P. O. Box 303187 Austin, TX 78703 (512) 480−8231 Email: rhicks@renea−hicks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trisha Trigilio

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 8 of 15

ACLU of Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 United Sta 713.942.8146 Fax: 713.942.8966 Email: ttrigilio@aclutx.org ATTORNEY TO BE NOTICED

Defendant
Raul L. Reyes in his official capacity as Mayor of El Cenizo, Texas

represented by Luis Roberto Vera , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trisha Trigilio (See above for address) ATTORNEY TO BE NOTICED

Defendant Maverick County, Texas

represented by Luis Roberto Vera , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trisha Trigilio (See above for address) ATTORNEY TO BE NOTICED

Defendant
Tom Schmerber in his official capacity as Sheriff of Maverick County, Texas

represented by Luis Roberto Vera , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trisha Trigilio (See above for address) ATTORNEY TO BE NOTICED

Defendant
Mario A. Hernandez in his official capacity as Constable Pct. 3−1 of Maverick County, Texas

represented by Luis Roberto Vera , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Max Renea Hicks (See above for address)

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 9 of 15

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trisha Trigilio (See above for address) ATTORNEY TO BE NOTICED

Defendant
Texas Organizing Project Education Fund

represented by Cassandra Lang Champion Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741 512−474−5073 Fax: 512−474−0726 Email: champion@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Efren Carlos Olivares Texas Civil Rights Project 1017 W. Hackberry Alamo, TX 78516 956−787−8171 ext. 108 Fax: 956−787−6348 Email: efren@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mimi M.D. Marziani Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741 512−474−5073 x108 Fax: 512−474−0726 Email: mimi@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
League of United Latin American Citizens

represented by Max Renea Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/07/2017
05/07/2017
05/09/2017 05/09/2017 05/09/2017

# Docket Text
1 COMPLAINT FOR DECLARATORY JUDGMENT ( Filing fee $ 400 receipt number 0542−9562867), filed by Texas. (Attachments: # 1 Exhibit Exhibit 1, # 2 Civil Cover Sheet)(Starr, Brantley) (Entered: 05/07/2017)
Case Assigned to Judge Sam Sparks. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (gr) (Entered: 05/09/2017)
2 Letter to David J. Hacker re: non−admission into the WD/TX. (gr). (Entered: 05/09/2017)
3 REQUEST FOR ISSUANCE OF SUMMONS by Texas. Brantley Starr (Starr, Brantley) (Entered: 05/09/2017)
4 Summons Issued as to Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Sally Hernandez, Ora Houston, Ann Kitchen, Mexican American Legal Defense and Education Fund, Leslie Pool,

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 10 of 15

05/09/2017 05/09/2017 05/09/2017 05/09/2017 05/09/2017 05/09/2017 05/10/2017 05/10/2017 05/12/2017 05/16/2017 05/22/2017 05/24/2017
05/24/2017
05/26/2017
05/26/2017 05/30/2017
05/31/2017

Sabino Renteria, Kathie Tovo, Travis County, Texas, Ellen Troxclair. (dm) (Entered: 05/09/2017)
5 NOTICE of Attorney Appearance by Darren L. McCarty on behalf of Texas. Attorney Darren L. McCarty added to party Texas(pty:pla) (McCarty, Darren) (Entered: 05/09/2017)
6 NOTICE of Attorney Appearance by David Austin Robert Nimocks on behalf of Texas. Attorney David Austin Robert Nimocks added to party Texas(pty:pla) (Nimocks, David) (Entered: 05/09/2017)
7 NOTICE of Attorney Appearance by Andrew Drake Leonie, III on behalf of Texas (Leonie, Andrew) (Entered: 05/09/2017)
8 NOTICE of Attorney Appearance by Darren L. McCarty on behalf of Texas (McCarty, Darren) (Entered: 05/09/2017)
9 NOTICE of Attorney Appearance by David Austin Robert Nimocks on behalf of Texas (Nimocks, David) (Entered: 05/09/2017)
10 NOTICE of Attorney Appearance by Andrew Drake Leonie, III on behalf of Texas (Leonie, Andrew) (Entered: 05/09/2017)
11 WAIVER OF SERVICE Returned Executed by Texas as to Sally Hernandez. Waiver sent on 5/8/2017, answer due 7/7/2017. (Nimocks, David) (Entered: 05/10/2017)
12 WAIVER OF SERVICE Returned Executed by Texas as to Travis County, Texas. Waiver sent on 5/8/2017, answer due 7/7/2017. (Nimocks, David) (Entered: 05/10/2017)
13 SUMMONS Returned Executed by Texas. City of Austin, Texas served on 5/10/2017, answer due 5/31/2017. (Nimocks, David) (Entered: 05/12/2017)
14 NOTICE of Attorney Appearance by David Jonathan Hacker on behalf of Texas. Attorney David Jonathan Hacker added to party Texas(pty:pla) (Hacker, David) (Entered: 05/16/2017)
15 WAIVER OF SERVICE Returned Executed by Texas as to Mexican American Legal Defense and Education Fund. Waiver sent on 5/19/2017, answer due 7/18/2017. (McCarty, Darren) (Entered: 05/22/2017)
16 MOTION to Dismiss for Lack of Jurisdiction by Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo, Ellen Troxclair. (Siegel, Michael) (Entered: 05/24/2017)
17 Opposed MOTION to Consolidate Cases by Texas. (Attachments: # 1 Memo in Support Memo in Support for Motion to Consolidate, # 2 Exhibit 1 El Cenizo Memo in Support of Motion to Dismiss or Transfer, # 3 Proposed Order Proposed Order Granting the Motion to Consolidate)(McCarty, Darren) (Entered: 05/24/2017)
18 MOTION to Dismiss for Lack of Jurisdiction 12 (b)(1) and MOTION for Expedited Ruling by Sally Hernandez, Travis County, Texas. (Attachments: # 1 Proposed Order)(Thomas, Sherine). Added MOTION to Expedite on 5/26/2017 to add text and event (klw). (Entered: 05/26/2017)
19 Amended MOTION to Dismiss Pursuant to Rule 12(b)(1) and Request to Expedite Ruling Sally Hernandez, Travis County, Texas. (Thomas, Sherine) Modified on 5/30/2017 to correct filers (dm). (Entered: 05/26/2017)
20 NOTICE of Attorney Appearance by Nina Perales on behalf of Mexican American Legal Defense and Education Fund. Attorney Nina Perales added to party Mexican American Legal Defense and Education Fund(pty:dft) (Perales, Nina) (Entered: 05/30/2017)
21 RESPONSE to Motion, filed by Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Sally Hernandez, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo, Travis County, Texas, Ellen Troxclair, re 17 Opposed MOTION to Consolidate Cases filed by

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 11 of 15

05/31/2017 05/31/2017 06/01/2017 06/02/2017 06/02/2017 06/02/2017 06/02/2017 06/02/2017 06/06/2017
06/06/2017 06/06/2017 06/07/2017

Plaintiff Texas (Attachments: # 1 Proposed Order)(Thomas, Sherine) (Entered: 05/31/2017)
22 Response in Opposition to Motion, filed by Mexican American Legal Defense and Education Fund, re 17 Opposed MOTION to Consolidate Cases filed by Plaintiff Texas (Perales, Nina) (Entered: 05/31/2017)
23 AMENDED COMPLAINT against All Defendants amending 1 Complaint, filed by Texas, Ken Paxton.(jf) (Entered: 05/31/2017)
24 Opposed MOTION to Consolidate Cases by Ken Paxton, Texas. (Attachments: # 1 Memo in Support Memorandum of Law In Support of Plaintiffs' Motion to Consolidate, # 2 Exhibit Exhibit 1, # 3 Proposed Order Proposed Order Granting Motion to Consolidate)(McCarty, Darren) (Entered: 06/01/2017)
25 NOTICE City of Austin's Advisory to the Court by Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo, Ellen Troxclair (Siegel, Michael) (Entered: 06/02/2017)
26 MOTION to Dismiss Defendants Travis County and Sheriff Sally Hernandez's Motion to Dismiss First Amended Complaint Pursuant to F.R.C.P. 12(b)(1) and Request for Expedite Ruling by Sally Hernandez, Travis County, Texas. (Thomas, Sherine) (Entered: 06/02/2017)
27 Amended MOTION to Dismiss by Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo, Ellen Troxclair. (Siegel, Michael) (Entered: 06/02/2017)
28 MOTION to Appear Pro Hac Vice by Nina Perales for Yolanda C. Garcia ( Filing fee $ 100 receipt number 0542−9647700) by on behalf of Mexican American Legal Defense and Education Fund. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 06/02/2017)
29 MOTION to Appear Pro Hac Vice by Nina Perales for Jose F. Sanchez ( Filing fee $ 100 receipt number 0542−9647807) by on behalf of Mexican American Legal Defense and Education Fund. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 06/02/2017)
30 Response in Opposition to Motion, filed by Ken Paxton, Texas, re 26 MOTION to Dismiss Defendants Travis County and Sheriff Sally Hernandez's Motion to Dismiss First Amended Complaint Pursuant to F.R.C.P. 12(b)(1) and Request for Expedite Ruling filed by Defendant Travis County, Texas, Defendant Sally Hernandez, 27 Amended MOTION to Dismiss filed by Defendant Ellen Troxclair, Defendant Delia Garza, Defendant Ora Houston, Defendant Steve Adler, Defendant Leslie Pool, Defendant Kathie Tovo, Defendant Alison Alter, Defendant Sabino Renteria, Defendant Gregorio Casar, Defendant Jimmy Flannigan, Defendant Elaine Hart, Defendant City of Austin, Texas, Defendant Ann Kitchen (Attachments: # 1 Proposed Order Proposed Order)(McCarty, Darren) (Entered: 06/06/2017)
31 ORDER GRANTING 28 Motion to Appear Pro Hac Vice as to Yolanda C. Garcia. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (dm) (Entered: 06/06/2017)
32 ORDER GRANTING 29 Motion to Appear Pro Hac Vice as to Jose F. Sanchez. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (dm) (Entered: 06/06/2017)
33 REPLY to Response to Motion, filed by Sally Hernandez, Travis County, Texas, re 26 Motion to Dismiss Defendants Travis County and Sheriff Sally Hernandez's Motion to Dismiss First Amended Complaint Pursuant to F.R.C.P. 12(b)(1) and Request for Expedite Ruling (Thomas, Sherine) Modified on 6/27/2017 to correct link (dm). (Entered: 06/07/2017)

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 12 of 15

06/08/2017 06/08/2017 06/08/2017
06/08/2017 06/08/2017 06/08/2017
06/08/2017 06/09/2017 06/09/2017 06/09/2017 06/09/2017 06/09/2017 06/12/2017 06/12/2017

34 REQUEST FOR ISSUANCE OF SUMMONS by Ken Paxton, Texas. (McCarty, Darren) (Entered: 06/08/2017)
35 Opposed MOTION to Consolidate Cases and Request for Expedited Ruling by Texas. (Attachments: # 1 Memo in Support, # 2 Exhibit 1, # 3 Proposed Order)(McCarty, Darren) (Entered: 06/08/2017)
36 REPLY to Response to Motion, filed by Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo, Ellen Troxclair, re 27 Amended MOTION to Dismiss filed by Defendant Ellen Troxclair, Defendant Delia Garza, Defendant Ora Houston, Defendant Steve Adler, Defendant Leslie Pool, Defendant Kathie Tovo, Defendant Alison Alter, Defendant Sabino Renteria, Defendant Gregorio Casar, Defendant Jimmy Flannigan, Defendant Elaine Hart, Defendant City of Austin, Texas, Defendant Ann Kitchen (Siegel, Michael) (Entered: 06/08/2017)
37 NOTICE of Attorney Appearance by Marisa Bono on behalf of Mexican American Legal Defense and Education Fund. Attorney Marisa Bono added to party Mexican American Legal Defense and Education Fund(pty:dft) (Bono, Marisa) (Entered: 06/08/2017)
38 NOTICE of Attorney Appearance by Celina Ysela Moreno on behalf of Mexican American Legal Defense and Education Fund. Attorney Celina Ysela Moreno added to party Mexican American Legal Defense and Education Fund(pty:dft) (Moreno, Celina) (Entered: 06/08/2017)
39 RESPONSE to Motion, filed by Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Sally Hernandez, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo, Travis County, Texas, Ellen Troxclair, re 24 Opposed MOTION to Consolidate Cases filed by Plaintiff Texas, Plaintiff Ken Paxton Defendants Travis County, Sheriff Sally Hernandez, and City of Austin's Joint Response to State's Motion to Consolidate (Thomas, Sherine) (Entered: 06/08/2017)
40 Response in Opposition to Motion, filed by Mexican American Legal Defense and Education Fund, re 35 Opposed MOTION to Consolidate Cases and Request for Expedited Ruling filed by Plaintiff Texas (Perales, Nina) (Entered: 06/08/2017)
41 Summons Issued as to City of El Cenizo, Texas, El Paso County, Texas, Mario A. Hernandez, League of United Latin American Citizens, Raul L. Reyes, Tom Schmerber, Texas Organizing Project Education Fund, Richard Wiles. (dm) (Entered: 06/09/2017)
42 ADVISORY TO THE COURT by Sally Hernandez, Travis County, Texas. (Thomas, Sherine) (Entered: 06/09/2017)
43 DEFICIENCY NOTICE: re 42 Advisory to the Court (dm) (Entered: 06/09/2017)
44 CERTIFICATE OF SERVICE by Sally Hernandez, Travis County, Texas (Thomas, Sherine) (Entered: 06/09/2017)
45 MOTION to Appear Pro Hac Vice by Nina Perales for David W. Dummer ( Filing fee $ 100 receipt number 0542−9673778) by on behalf of Mexican American Legal Defense and Education Fund. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 06/09/2017)
47 WAIVER OF SERVICE Returned Executed by Texas, Ken Paxton as to Texas Organizing Project Education Fund. Waiver sent on 6/6/2017, answer due 8/7/2017. (McCarty, Darren) (Entered: 06/12/2017)
48 CORRECTED RESPONSE to Motion (Corrected as to #46), filed by Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, Delia Garza, Elaine Hart, Sally Hernandez, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo, Travis County, Texas, Ellen Troxclair, re 35 Opposed MOTION to Consolidate Cases and Request for Expedited Ruling filed by Plaintiff Texas (Attachments: # 1 Proposed Order)(Thomas, Sherine) (Entered: 06/12/2017)

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 13 of 15

06/12/2017
06/14/2017 06/14/2017 06/15/2017
06/16/2017 06/16/2017 06/20/2017 06/21/2017 06/21/2017 06/27/2017 06/27/2017 06/28/2017 06/28/2017 06/28/2017 06/28/2017
06/29/2017 06/29/2017

49 ORDER GRANTING 45 Motion to Appear Pro Hac Vice as to David W. Dummer. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (dm) (Entered: 06/13/2017)
50 SUMMONS Returned Executed by Texas, Ken Paxton. Tom Schmerber served on 6/9/2017, answer due 6/30/2017. (McCarty, Darren) (Entered: 06/14/2017)
51 SUMMONS Returned Executed by Texas, Ken Paxton. Mario A. Hernandez served on 6/9/2017, answer due 6/30/2017. (McCarty, Darren) (Entered: 06/14/2017)
52 REPLY to Response to Motion, filed by Ken Paxton, Texas, re 35 Opposed MOTION to Consolidate Cases and Request for Expedited Ruling filed by Plaintiff Texas, 17 Opposed MOTION to Consolidate Cases filed by Plaintiff Texas, 24 Opposed MOTION to Consolidate Cases filed by Plaintiff Texas, Plaintiff Ken Paxton (McCarty, Darren) (Entered: 06/15/2017)
53 NOTICE of Voluntary Dismissal by Ken Paxton, Texas (McCarty, Darren) (Entered: 06/16/2017)
54 ORDER, ( All Pending Matters set for 6/29/2017 at 10:00 AM before Judge Sam Sparks,). Signed by Judge Sam Sparks. (dm) (Entered: 06/16/2017)
55 SUMMONS Returned Executed by Texas, Ken Paxton. El Paso County, Texas served on 6/13/2017, answer due 7/5/2017. (McCarty, Darren) (Entered: 06/20/2017)
56 SUMMONS Returned Executed by Texas, Ken Paxton. City of El Cenizo, Texas served on 6/19/2017, answer due 7/10/2017. (McCarty, Darren) (Entered: 06/21/2017)
57 SUMMONS Returned Executed by Texas, Ken Paxton. Richard Wiles served on 6/20/2017, answer due 7/11/2017. (McCarty, Darren) (Entered: 06/21/2017)
58 SUMMONS Returned Executed by Texas, Ken Paxton. Raul L. Reyes served on 6/12/2017, answer due 7/3/2017. (McCarty, Darren) (Entered: 06/27/2017)
59 SUMMONS Returned Executed by Texas, Ken Paxton. League of United Latin American Citizens served on 6/13/2017, answer due 7/5/2017. (McCarty, Darren) (Entered: 06/27/2017)
60 MOTION to Dismiss by "The El Cenizo Parties" by City of El Cenizo, Texas, Mario A. Hernandez, Maverick County, Texas, Raul L. Reyes, Tom Schmerber. (Attachments: # 1 Proposed Order)(Hicks, Max) (Entered: 06/28/2017)
61 Memorandum in Support of 60 MOTION to Dismiss by "The El Cenizo Parties" by City of El Cenizo, Texas, Mario A. Hernandez, Maverick County, Texas, Raul L. Reyes, Tom Schmerber. (Hicks, Max) (Entered: 06/28/2017)
62 MOTION to Dismiss Pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) by Texas Organizing Project Education Fund. (Attachments: # 1 Proposed Order)(Marziani, Mimi) (Entered: 06/28/2017)
63 NOTICE of Attorney Appearance by Trisha Trigilio on behalf of City of El Cenizo, Texas, Mario A. Hernandez, Maverick County, Texas, Raul L. Reyes, Tom Schmerber. Attorney Trisha Trigilio added to party City of El Cenizo, Texas(pty:dft), Attorney Trisha Trigilio added to party Mario A. Hernandez(pty:dft), Attorney Trisha Trigilio added to party Maverick County, Texas(pty:dft), Attorney Trisha Trigilio added to party Raul L. Reyes(pty:dft), Attorney Trisha Trigilio added to party Tom Schmerber(pty:dft) (Trigilio, Trisha) (Entered: 06/28/2017)
64 Motion to Dismiss for Failure to State a Claim by El Paso County, Texas, Richard Wiles. (Garza, Jose) (Entered: 06/29/2017)
65 MOTION to Dismiss for Lack of Jurisdiction by City of El Cenizo, Texas, Mario A. Hernandez, League of United Latin American Citizens, Maverick County, Texas, Raul L. Reyes, Tom Schmerber. (Attachments: # 1 Proposed Order)(Hicks, Max) (Entered: 06/29/2017)

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 14 of 15

06/29/2017 06/29/2017 06/29/2017 06/29/2017 06/29/2017 07/12/2017
07/19/2017 07/31/2017
08/09/2017
08/09/2017 08/31/2017

66 MEMORANDUM IN SUPPORT OF AMENDED MOTION to Dismiss for Lack of Jurisdiction by City of El Cenizo, Texas, Mario A. Hernandez, League of United Latin American Citizens, Maverick County, Texas, Raul L. Reyes, Tom Schmerber. (Hicks, Max) Modified on 6/29/2017 to correct text (dm). (Entered: 06/29/2017)
67 Minute Entry for proceedings held before Judge Sam Sparks: Status Conference held on 6/29/2017 (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(dm) (Entered: 06/29/2017)
68 DEFICIENCY NOTICE: re 66 MOTION to Dismiss for Lack of Jurisdiction (dm) (Entered: 06/29/2017)
69 DEFICIENCY NOTICE: re 66 MOTION to Dismiss for Lack of Jurisdiction (dm) (Entered: 06/29/2017)
70 CERTIFICATE OF SERVICE by City of El Cenizo, Texas, Mario A. Hernandez, League of United Latin American Citizens, Maverick County, Texas, Raul L. Reyes, Tom Schmerber 66 MOTION to Dismiss for Lack of Jurisdiction (Hicks, Max) (Entered: 06/29/2017)
71 RESPONSE to Motion, filed by Ken Paxton, Texas, re 64 Motion to Dismiss for Failure to State a Claim filed by Defendant Richard Wiles, Defendant El Paso County, Texas, 60 MOTION to Dismiss by "The El Cenizo Parties" filed by Defendant Mario A. Hernandez, Defendant Tom Schmerber, Defendant City of El Cenizo, Texas, Defendant Maverick County, Texas, Defendant Raul L. Reyes, 62 MOTION to Dismiss Pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) filed by Defendant Texas Organizing Project Education Fund, 65 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Mario A. Hernandez, Defendant Tom Schmerber, Defendant City of El Cenizo, Texas, Defendant League of United Latin American Citizens, Defendant Maverick County, Texas, Defendant Raul L. Reyes, 66 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Mario A. Hernandez, Defendant Tom Schmerber, Defendant City of El Cenizo, Texas, Defendant League of United Latin American Citizens, Defendant Maverick County, Texas, Defendant Raul L. Reyes (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 07/12/2017)
72 REPLY to Response to Motion, filed by Texas Organizing Project Education Fund, re 62 MOTION to Dismiss Pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) filed by Defendant Texas Organizing Project Education Fund (Olivares, Efren) (Entered: 07/19/2017)
73 Transcript filed of Proceedings held on June 29, 2017, Proceedings Transcribed: All Pending Matters. Court Reporter/Transcriber: Lily I. Reznik, Telephone number: 512−391−8792 or Lily_Reznik@txwd.uscourts.gov. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 8/21/2017, Redacted Transcript Deadline set for 8/31/2017, Release of Transcript Restriction set for 10/30/2017, (Reznik, Lily) (Entered: 07/31/2017)
74 ORDER MOOTING 19 Motion to Dismiss ; MOOTING 24 Motion to Consolidate Cases; GRANTING 26 Motion to Dismiss ; GRANTING 27 Motion to Dismiss ; MOOTING 35 Motion to Consolidate Cases; MOOTING 60 Motion to Dismiss ; GRANTING 62 Motion to Dismiss ; GRANTING 64 Motion to Dismiss for Failure to State a Claim; GRANTING 65 Motion to Dismiss for Lack of Jurisdiction ; MOOTING 16 Motion to Dismiss for Lack of Jurisdiction ; MOOTING 17 Motion to Consolidate Cases; MOOTING 18 Motion to Dismiss for Lack of Jurisdiction ; MOOTING 18 Motion to Expedite. Signed by Judge Sam Sparks. (dm) (Entered: 08/09/2017)
75 ORDER OF DISMISSAL. Signed by Judge Sam Sparks. (dm) (Entered: 08/09/2017)
76 Appeal of Order entered by District Judge 75 , 74 by Ken Paxton, Texas. No filing fee submitted (McCarty, Darren) (Entered: 08/31/2017)

Case: 1:17-cv-00425-SS As of: 04/09/2019 01:58 PM CDT 15 of 15

08/31/2017
10/03/2017 10/26/2017 01/28/2019

NOTICE OF APPEAL (No Filing Fee Submitted) following 76 Notice of Appeal (E−Filed) by Ken Paxton, Texas. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (dm) (Entered: 09/01/2017)
77 Notice of Appeal filing fee received in the amount of $505, receipt number 100031393 (jf) (Entered: 10/03/2017)
Certification of the Electronic Record on Appeal has been accepted by the 5th Circuit re Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (dm) (Entered: 10/27/2017)
78 Certified copy of USCA JUDGMENT/MANDATE Affirming 76 Notice of Appeal (E−Filed) filed by Texas, Ken Paxton. (dm) (Entered: 01/30/2019)