UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DONNA LANGAN,

TERESA DE BARBARAC, and

ALEXANDRA CARSON

Plaintiffs,

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§ Cause No. 1:20-cv-275

v. §

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GREG ABBOTT, in his Official Capacity as 

Governor of Texas; and

KEN PAXTON, in his Official Capacity as 

Attorney General of Texas

Defendants.

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RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

TO THE HONORABLE U.S. DISTRICT COURT JUDGE:

Plaintiffs Donna Langan, Teresa de Barbarac, and Alexandra Carson offer this response to 

Defendants’ motion to dismiss (Docket Entry 5).

LEGAL STANDARD

Defendants brought their motion pursuant to Federal Rule of Civil Procedure 12(b)(1). 

In resolving a motion under Rule 12(b)(1), the district court has the power to dismiss for 

lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint 

alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) 

the complaint supplemented by undisputed facts plus the court's resolution of disputed 

facts.

Campos v. United States, 888 F.3d 724, 729 (5th Cir. 2018). Therefore, Plaintiffs incorporate by 

reference the facts asserted in Plaintiffs’ First Amended Complaint and its attached appendix.

(Docket Entry 8-1 and 8-2). 

ARGUMENT

The Courts (and Defendants) recognized that “Article III standing analysis and Ex parte 

Young analysis ‘significantly overlap.’” City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 

2019). 

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[I]t may be the case that an official’s “connection to [ ] enforcement” is satisfied when 

standing has been established. That is, because it’s been determined that an official can act, 

and there’s a significant possibility that he or she will act to harm a plaintiff, the official 

has engaged in enough “compulsion or constraint” to apply the Young exception. 

Id. Plaintiffs arguments below, as regards Defendant Paxton, satisfy both the elements of standing 

and demonstrate Paxton is subject to suit under the Ex parte Young doctrine, but focus on the latter.

Defendants’ argument regarding the Eleventh Amendment and Ex parte Young conflates

separate threads of the case law, and in so doing, presents the Court with the incorrect legal 

standard. For instance, Defendants argue:

[T]o apply Ex parte Young, Plaintiffs must show that Defendants have “the 

particular duty to enforce the statute in question ....” 

(D.E. 5, at 6) (citing Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014)). The Fifth Circuit 

has said something different: it is not necessary for a Defendant to be given a duty by statute to 

enforce the statute in order for that Defendant to be subject to Ex parte Young. 

Where a state actor or agency is statutorily tasked with enforcing the 

challenged law and a different official is the named defendant, our Young

analysis ends. For example, in Morris v. Livingston, an inmate in the custody of 

the Texas Department of Criminal Justice (“TDCJ”) sued the Governor of Texas, 

challenging the constitutionality of a statute that required TDCJ inmates to pay a 

“health care services fee” if an inmate initiated a visit to a health care provider. The 

statute specifically tasked the TDCJ as responsible for its enforcement.... Where 

no state official or agency is named in the statute in question, we consider 

whether the state official actually has the authority to enforce the challenged 

law.

City of Austin, 943 F.3d at 998 (citations omitted, emphasis added). Therefore, since no official is 

explicitly tasked by Texas Family Code 45 to enforce its provisions,1the first question is whether 

Defendants have the actual authority to enforce the law.

1 Relatedly, Defendants argue that “[Texas Family Code] 45.103 specifically tasks Texas state courts...with 

its enforcement.” (D.E. 5, at 7). That interpretation of case law cannot be true. Courts and judges enforce 

every law; if that meant they were considered entities “statutorily tasked with enforcing the challenged law” 

within the meaning of the case law, then it would lead to the absurd result of swallowing all Ex parte Young

claims.

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Defendants have not denied (and we expect will concede) that Texas Attorney General 

Paxton has authority to bring suit to enforce Texas Family Code 45.103. Therefore, we move to 

the next question: have Plaintiffs made an adequate showing of the likelihood of Paxton’s 

enforcing that law?

2 The Fifth Circuit explains “[p]anels in this circuit have defined ‘enforcement’

as ‘typically involv[ing] compulsion or constraint.’” Id. at 1000. One panel set forth an important 

principle: “direct enforcement of the challenged law was not required: actions that constrained the 

plaintiffs were sufficient to apply the Young exception to the Air Evac officials...” Id. at 1001.

Another panel discussed Paxton specifically:

Likewise, in NiGen Biotech, L.L.C. v. Paxton, this court considered whether Ex 

parte Young could apply to Attorney General Paxton where he continuously refused 

to justify numerous “threatening letters” from his office to a manufacturer and 

distributor of dietary supplements and its retailers alleging that the manufacturer’s 

packaging was in violation of the Texas Deceptive Trade Practices Act (“DTPA”). 

.... [T]he fact that Paxton sent letters threatening enforcement of the DTPA makes 

it clear that he had not only the authority to enforce the DTPA, but was also 

constraining the manufacturer’s activities, in that it faced possible prosecution if it 

continued to make and distribute its products.

Id. (at 1001) (citations omitted). The plaintiff in City of Austin ultimately lost its Eleventh 

Amendment argument against Paxton because it failed to demonstrate that, based Paxton’s prior 

actions, he might seek to enforce a particular statute. That’s because his prior actions did not 

include “any overlapping facts with [the City of Austin’s] case.” Id. at 1001-02. In this lawsuit, 

that could not be further from the truth. 

Paxton historically has been deeply involved in matters related to the matters at hand. For 

instance, Plaintiffs’ First Amended Complaint describes Paxton’s intervention in a Travis County 

2 City of Austin notes that whether Okpalobi’s plurality opinion stating an official should have “the 

particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty” may 

not be binding precedent, noting that other Fifth Circuit panels have drawn different conclusions. Instead, 

the Fifth Circuit did not reach that issue in City of Austin because “in the same vein as panels before us, we 

find that we need not define the outer bounds of this circuit’s Ex parte Young analysis today.” City of Austin, 

943 F.3d at 999-1000. 

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probate case and district court case that had each declared Texas’ law against same-sex marriage 

unconstitutional. (Docket Entry 8-1, at 56-58). Paxton submitted an “Amended Petition for Writ 

of Mandamus” to the Texas Supreme Court which made several representations that he should be 

collaterally estopped from rejecting in this case, including:

a. Characterizing the Office of the Attorney General as an adverse party to the 

constitutional challenge to same-sex marriage. 

b. Arguing the attorney general “has a justiciable interest in the case given its wellrecognized interest in defending Texas law.”

c. Arguing “the attorney general’s office is charged with defending and enforcing 

[state law].”

(Docket Entry 8-1, at 59). When the Texas Supreme Court later dismissed the Application as moot 

(because the U.S. Supreme Court had made same-sex marriage legal), Justices Willet and Devine 

agreed with Paxton’s characterization of the attorney general’s role, saying:

a. The attorney general has a constitutional duty to defend challenges to state law. In re 

State, 489 SW 3d 454, 456 (Tex. 2016) (Justice Willett, joined by Justice Devine, 

concurring in the dismissal of the petition for writ of mandamus).

b. “Texas law could not be clearer: The State's chief legal officer — sworn to ‘preserve, 

protect, and defend’ Texas law — should in fact be permitted to preserve, protect, 

and defend it.” Id.

c. “A law may be unfashionable. It may even be unconstitutional. But it cannot be 

undefended.” Id. at 457

As described in the amended complaint, after the U.S. Supreme Court legalized same-sex 

marriage, Paxton shifted gears to exerting coercion around a transphobic agenda, including 

pressuring Target over its store policies, joining multi-state lawsuits, threatening the Fort Worth 

school district, and championing 2017’s “Bathroom Bill.” Docket Entry 8-1, at 62-65. These 

events, taken together with Paxton’s actions in the litigation around same-sex marriage, distinguish 

this case from City of Austin by showing Paxton’s interest and eagerness to enforces a statute like

Family Code 43.103.

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CONCLUSION

For these reasons, Plaintiffs ask that the motion be denied.

DATED: June 5, 2020.

Respectfully submitted,

/s/ Brian McGiverin

Brian McGiverin

Texas Bar No. 24067760

brian@austincommunitylawcenter.org

Judith Bohr

Texas Bar No. 24092153

judith.bohr@austincommunitylawcenter.org

AUSTIN COMMUNITY LAW CENTER

1411 West Ave

Austin, TX 78701

Telephone: (512) 596-0226

Fax: (512) 597-0805

Moira Meltzer-Cohen

Pro Hac Vice Pending

277 Broadway, Suite 1501 

New York, NY 10007 

Telephone: (347) 248-6771

Fax: (929) 232.2056

mo_at_law@protonmail.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been served on all counsel of 

record who have appeared in this matter through the Electronic Case Files System of the Western 

District of Texas.

/s/ Brian McGiverin

Brian McGiverin

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