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ATTORNEY GENERAL PAXTON INTERVENES IN TRAVIS COUNTY MARRIAGE CASE; REQUESTS STAY FROM TEXAS

SUPREME

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February 18, 2015 | Marriage (/news/categories/marriage)

Attor ney Gen eral Pax ton

Intervenes In Travis Coun ty

Mar riage Case; Requests

Stay from Texas Supreme

0

Texas Attorney General Ken Paxton today announced his ofce has

intervened in a Travis County probate case following a judge’s

declaration that Texas’ marriage law is unconstitutional. The State has

sought a stay by the Texas Supreme Court and has also asked the court to

overturn the judge’s ruling. General Paxton issued the following

statement:

“Texas law is clear on the denition of marriage, and I will ght to protect

this sacred institution and uphold the will of Texans, who voted

overwhelmingly in favor of a constitutional amendment dening the

union as between one man and one woman. The probate judge’s

misguided ruling does not change Texas law or allow the issuance of a

marriage license to anyone other than one man and one woman.”

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ATTORNEY GENERAL PAXTON: ACTIVIST JUDGES DON'T CHANGE TEXAS LAW

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February 19, 2015 | Marriage (/news/categories/marriage)

Attor ney Gen eral Pax ton:

Activist Judges Don’t

Change Texas Law

1

Texas Attorney General Ken Paxton continues to actively uphold Texas

law in the face of unconstitutional actions taken by Travis County judges.

The State has sought multiple stays from the Texas Supreme Court.

General Paxton issued the following statement:

“The Texas Constitution clearly denes marriage as between one man

and one woman, as Texas voters approved by an overwhelming majority.

The law of Texas has not changed, and will not change due to the whims

of any individual judge or county clerk operating on their own capacity

anywhere in Texas. Activist judges don’t change Texas law and we will

continue to aggressively defend the laws of our state and will ensure that

any licenses issued contrary to law are invalid.”

A timeline of recent events relating to this issue:

On Tuesday, a probate judge in Travis County acted without

authority to unilaterally declare the Texas denition of marriage

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unconstitutional in a private probate proceeding.

On Tuesday night, the Attorney General intervened, requesting the

Texas Supreme Court to stay and overturn that erroneous ruling.

That request is still pending.

On Thursday morning, a state district court judge, also in Travis

County, declared the Texas denition of marriage unconstitutional

and issued a temporary restraining order directing the Travis

County clerk to issue a marriage license to a same-sex couple.

The judge did not comply with Texas law, which requires the

Attorney General to be notied whenever a state law is ruled

unconstitutional.

Pursuant to this judge’s order, the Travis County Clerk unlawfully

issued a marriage license to the same-sex couple, who

subsequently took part in a ceremony.

The Attorney General immediately intervened, asking the Texas

Supreme Court to stay this proceeding, as well as any state court

proceedings that seek to undermine the constitutionality of Texas’

marriage law.

In keeping with state law, the Attorney General is also seeking to

void the marriage license issued due to the erroneous judicial

order.

The Attorney General is also ling suit enjoining the Travis County

Clerk from issuing any same-sex marriage licenses.

Additionally, today the Attorney General led a response in the U.S. Fifth

Circuit Court of Appeals, following a request from plaintiffs in a separate

case to lift the stay on the court’s ruling on Texas’ marriage laws. That

case was argued in January.

View today’s court ling with the Texas Supreme Court

(/sites/default/les/les/press/MotionEmergencyRelief_FS.pdf)

Receive email updates from the

OAG Press Ofce:

Your Em Submit

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ATTORNEY GENERAL PAXTON SEEKS WRIT OF MANDAMUS FROM TEXAS SUPREME COURT

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February 20, 2015 | Marriage (/news/categories/marriage)

Attor ney Gen eral Pax ton

Seeks Writ of Man damus

from Texas Supreme Court

0

Texas Attorney General Ken Paxton continues to actively uphold Texas

law in the face of unlawful actions taken by Travis County judges, today

ling a petition for a writ of mandamus with the Texas Supreme Court:

“The rogue actions of Travis County judges do not withstand the scrutiny

of law. The same-sex marriage license issued yesterday is not valid

because it conicts with the Texas Constitution and State law—the license

is therefore void ab initio. The ling we made today with the Texas

Supreme Court conrms these points."

View the petition for a writ of mandamus

(/sites/default/les/les/press/15-0139_Mandamus_FS.pdf)

Receive email updates from the

OAG Press Ofce:

Your Em Submit

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Case 1:20-cv-00275-RP Document 10-1 Filed 06/08/20 Page 4 of 103
No. 15-0139 

In the Supreme Court of Texas 

IN RE STATE OF TEXAS,

 Relator

On Petition for Writ of Mandamus to 

167th Judicial District Court, Travis County, Texas 

AMENDED PETITION FOR WRIT OF MANDAMUS 

KEN PAXTON

Attorney General of Texas 

CHARLES E. ROY

First Assistant Attorney General 

SCOTT A. KELLER

Solicitor General 

BETH KLUSMANN

Assistant Solicitor General 

MICHAEL P. MURPHY

Assistant Solicitor General 

State Bar No. 24051097 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059) 

Austin, Texas 78711-2548 

Tel.: (512) 936-2995 

Fax: (512) 474-2697 

michaelp.murphy@texasattorneygeneral.gov 

COUNSEL FOR RELATOR

FILED

15-0139

3/6/2015 4:26:02 PM

tex-4408291

SUPREME COURT OF TEXAS

BLAKE A. HAWTHORNE, CLERK

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i 

IDENTITY OF PARTIES AND COUNSEL

Relator: State of Texas 

Relator’s Lead Counsel: 

Michael P. Murphy 

State Bar No. 24051097 

Assistant Solicitor General 

Michaelp.murphy@texasattorneygeneral.gov

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059) 

Austin, Texas 78711-2548 

Tel.: (512) 936-2995 

Fax: (512) 474-2697 

Respondent:

Hon. David Wahlberg 

Judge of 167th District Court, Travis County, Texas

509 West 11th, 8th floor 

Austin, TX 78701 

Tel.: (512) 854-9310 

Fax: (512) 854-6425

 

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ii 

Real Parties in Interest: 

Sarah Goodfriend 

Suzanne Bryant

Real Parties in Interest’s Appellate and Trial Counsel

Kurt Kuhn 

Lisa Bowlin Hobbs 

KUHN HOBBS PLLC 

3307 Northland Drive, Suite 310 

Austin, Texas 78731 

Tel.: (512) 476-6003 

Fax: (512) 476-6002 

Kurt@KuhnHobbs.com 

Lisa@KuhnHobbs.com 

Brian T. Thompson 

Craig Hopper 

HOPPER MIKESKA, PLLC 

400 W. 15th Street, Suite 408 

Austin, Texas 78701 

Tel.: (512) 615-6195 

Fax: (512) 610-1306 

bthompson@hoppermikeska.com

Charles Herring, Jr. 

Jess M. Irwin III 

HERRING & IRWIN, LLP 

1411 West Ave., Ste. 100 

Austin, Texas 78701 

Tel.: (512) 320-0665 

Fax: (512) 519-7580 

cherring@herring-irwin.com 

jess@herring-irwin.com 

Catherine A. Mauzy 

MAUZY & TUCKER PLLC 

1717 West 6th St., #315 

Austin, Texas 78703 

Tel.: (512) 474-1493 

Fax: (512) 479-7910 

cam@mauzylaw.com

 

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iii 

TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................. i

Index of Authorities ................................................................................... v

Statement of the Case ....................................................................... viiviii

Statement of Jurisdiction ........................................................................ iix

Issues Presented ........................................................................................ x

Statement of Facts .................................................................................... 3 

Argument ................................................................................................... 6

I. The Trial Court Abused Its Discretion in Multiple 

Ways ........................................................................................ 7

A. The Trial Court Abused Its Discretion by Holding 

Texas Marriage Law Unconstitutional Without 

First Notifying the Attorney General. ........................... 7

B. The Trial Court Abused Its Discretion by Holding 

Texas Marriage Law Unconstitutional and 

Enjoining Its Enforcement While Those Laws Are 

Under Review in the Court. ........................................... 9

C. The Trial Court Abused Its Discretion by 

Drastically Altering, Rather than Preserving, the 

Status Quo. ................................................................... 11

D. The Trial Court Abused Its Discretion by 

Effectively Granting Final Relief in a TRO. ................ 12

E. The Trial Court Abused Its Discretion by Granting 

Ex Parte Relief in Violation of Local Rules. ................ 14

II. The TRO Is Void Because Notice Was Neither Given nor 

Excused. ................................................................................. 14

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iv 

A. The Trial Court Failed to State Why the TRO Was 

Granted Without Notice. .............................................. 15

B. The Plaintiffs Failed to Show an Emergency That 

Prevented Them from Giving Notice. .......................... 16

C. The Marriage License Is Also Void. ............................. 17

III. The Plaintiffs Cannot Evade the Court’s Review with a 

Nonsuit. ................................................................................. 18

A. The Nonsuit Was Invalid Because the Trial Court 

Purported to Adjudicate the Plaintiffs’ Claim in 

the TRO. ....................................................................... 19

B. The Plaintiffs’ and the Trial Court’s Improper 

Actions Are Capable of Repetition Yet Would 

Evade Review if the Nonsuit Mooted the 

Mandamus Proceeding. ................................................ 19

IV. Absent Mandamus Relief, the Trial Court’s Order 

Threatens Continued Serious, Imminent Harm. ................. 21

V. There Is No Adequate Remedy by Appeal. ........................... 22

Prayer ...................................................................................................... 22

Mandamus Certification ......................................................................... 24

Certificate of Service ............................................................................... 25

Certificate of Compliance ........................................................................ 26

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v 

INDEX OF AUTHORITIES

Cases

Cannan v. Green Oaks Apts., Ltd., 

758 S.W.2d 753 (Tex. 1988) (per curiam) ...................................... 11 

Cash Am. Int’l Inc. v. Bennett, 

35 S.W.3d 12 (Tex. 2000) ................................................................ 18 

Dancy v. Daggett, 

815 S.W.2d 548 (Tex. 1991) ............................................................ 14 

Edgewood Indep. Sch. Dist. v. Paiz, 

856 S.W.2d 269 (Tex. App.—San Antonio 1993, no writ) .............. 12 

Ex Parte Lo, 

424 S.W.3d 10 (Tex. Crim. App. 2013) ............................................. 7 

Grigsby v. Reib, 

153 S.W. 1124 (Tex. 1913) .............................................................. 18 

Hyundai Motor Co. v. Alvarado, 

892 S.W.2d 853 (Tex. 1995) (per curiam) ...................................... 19 

In re Allied Chemical Corp., 

227 S.W.3d 652 (Tex. 2007) ...................................................... 20, 21 

In re Jorden, 

249 S.W.3d 416 (Tex. 2008) ....................................................... 6-7, 8 

In re Marriage of A.L.F.L. and K.L.L., No. 04-14-00364-CV, 

2014 WL 4357457 (Tex. App.—San Antonio, August 13, 

2014) ............................................................................................... 11 

In re Marriage of J.B. & H.B., 

326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. granted) ..... 3, 10, 11 

In re Newton, 

146 S.W.3d 648 (Tex. 2004) ...................................... x, 11, 12, 13, 22 

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vi 

In re Office of Attorney Gen., 

257 S.W.3d 695 (Tex. 2008) ................................................ 14, 15, 22 

In re Prudential Ins. Co. v. Am., 

148 S.W.3d 124 (Tex. 2004) ...................................................... 6, 7, 8 

In re State, 

No. 04-14-00282-CV, 2014 WL 2443910 (Tex. App. —

San Antonio, May 28, 2014, orig. proceeding) ....................... 7, 8, 10 

In re Tex. Nat. Res. Conservation Comm’n, 

85 S.W.3d 201 (Tex. 2002) .............................................................. 14 

Janus Films, Inc. v. City of Fort Worth, 

358 S.W.2d 589 (1962) (per curiam) .............................................. 12 

Perry v. Del Rio, 

66 S.W.3d 239 (Tex. 2001) .............................................................. 10 

Sheffield v. Town of Duncanville, 

236 S.W.2d 851 (Tex. Civ. App.—Dallas 1951, 

writ refused n.r.e.) .......................................................................... 13 

Terrazas v. Ramirez, 

829 S.W.2d 712 (Tex. 1991) .............................................................. 3 

Walker v. Packer, 

827 S.W.2d 833 (Tex. 1992) .............................................................. 6 

Constitutional Provisions and Statutes

TEX. CONST. art I, § 32 ................................................. viii, ix, x, 1, 3, 5, 10 

TEX. FAM. CODE § 2.001 ..................................................... viii, ix, x, 1, 3, 5 

TEX. FAM. CODE § 2.012 ..................................................... viii, ix, x, 1, 3, 5 

TEX. FAM. CODE § 6.204 ................................................... viii, ix, 1, 3, 5, 10 

TEX. FAM. CODE § 6.204(b) ................................................................... x, 17 

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vii 

TEX. GOV’T CODE § 22.002(a) .................................................................... ix 

TEX. GOV’T CODE § 402.010 ................................................................ x, 3, 7 

TEX. GOV’T CODE § 402.010(a) ......................................................... 7, 9, 16 

Rules

TEX. R. APP. P. 52.1 ................................................................................... ix 

TEX. R. APP. P. 52 ....................................................................................... 1 

TEX. R. CIV. P. 21 ....................................................................................... 4 

TEX. R. CIV. P. 21(f)(1) ................................................................................ 4 

TEX. R. CIV. P. 680 .............................................................. xi, 3, 14, 15, 16 

Travis Cnty. Dist. Ct. Loc. R. 7.2 ................................................... xi, 4, 14 

Other Authorities

Angela Morris, The Wedding Planner: A Step-by-Step Legal 

Analysis of State’s First Same-Sex Marriage, TEXAS 

LAWYER, March 2, 2014, available at

http://bit.ly/1BDR6MJ ................................................................ 4, 17 

Chuck Lindell, Travis County Clerk Issues First Legal Gay 

Marriage License in Texas, AUSTIN AMERICANSTATESMAN, Feb. 19, 2015, available at

http://atxne.ws/17vl7lo ..................................................................... 5 

Chuck Lindell, Video Interview of Sarah Goodfriend and 

Suzanne Bryant at 5:00-5:39; 29:39-29:58, AUSTIN 

AMERICAN-STATESMAN, Feb. 23, 2015, 

http://atxne.ws/1BmreXa ............................................................... 17 

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viii 

STATEMENT OF THE CASE

Nature of the Case: This mandamus proceeding challenges an 

unappealable temporary restraining order 

holding Article I, section 32 of the Texas 

Constitution and Texas Family Code sections 

2.001, 2.012, and 6.204 unconstitutional. 

Respondent: Hon. David Wahlberg 

Judge of 167th District Court, Travis County, 

Texas 

Course of 

Proceedings And 

Respondent’s 

Challenged Action: 

This mandamus petition arises from a 

lawsuit seeking a TRO, preliminary 

injunction, and permanent injunction to 

declare unconstitutional Article I, section 32 

of the Texas Constitution and Texas Family 

Code sections 2.001, 2.012, and 6.204 and 

allow Travis County Clerk Dana DeBeauvoir 

to issue a marriage license to Real Parties in 

Interest Sarah Goodfriend and Suzanne 

Bryant. Within minutes of the lawsuit being 

filed, the trial court granted a TRO, ruling 

that Article I, section 32 of the Texas 

Constitution and Texas Family Code sections 

2.001, 2.012, and 6.204 are unconstitutional, 

and commanding the county clerk to cease 

and desist from complying with the law. The 

court also waived the 72-hour waiting period 

for marriage licenses. That same morning, 

DeBeauvoir issued a marriage license. A few 

hours later, the plaintiffs nonsuited their case 

because they had “realized their dream to be 

married.” Later that day, the Court issued a 

temporary order staying the trial court’s 

order. 

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ix 

STATEMENT OF JURISDICTION

The Court has original jurisdiction to issue the requested writ of 

mandamus because the State seeks to mandamus a district court judge. 

See TEX. GOV’T CODE § 22.002(a); TEX. R. APP. P. 52.1. 

This petition was not first presented to the court of appeals due to 

the extremely time-sensitive nature of this matter and the serious harm 

that could arise absent prompt relief. The trial court, in an ex parte TRO, 

ruled that Article I, section 32 of the Texas Constitution and Texas 

Family Code sections 2.001, 2.012, and 6.204 are unconstitutional and 

issued an order allowing the Travis County Clerk to issue a marriage 

license to the plaintiffs. MR Tab C. This ruling may inspire same-sex 

couples to seek similar relief across the State. If that occurred, the harm 

to the couples, state officials, and the general public would be difficult if 

not impossible to undo. Although the Court has now stayed the TRO, 

mandamus relief is necessary to make clear that the trial court’s TRO 

was an abuse of discretion and is void, as is the plaintiffs’ marriage 

license. 

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x 

ISSUES PRESENTED

1. Trial courts are required to notify the Attorney General of a 

constitutional challenge to Texas law before holding the law 

unconstitutional. TEX. GOV’T CODE § 402.010. 

Was it an abuse of discretion for the trial court to hold Texas 

marriage law unconstitutional and enjoin its enforcement 

without first notifying the Attorney General of this 

constitutional challenge? 

2. Article I, section 32 of the Texas Constitution defines marriage in 

Texas as only “the union of one man and one woman.” Texas Family Code 

section 2.001 prohibits issuance of a marriage license for “persons of the 

same sex”; section 2.012 declares that it is a misdemeanor for a county 

clerk to violate Texas marriage law; and section 6.204(b) declares any 

marriage between persons of the same sex void. 

Was it an abuse of discretion for the trial court to hold these laws 

unconstitutional and command the county clerk to cease and 

desist applying them when the validity of these laws is under 

review in the Court?

3. The purpose of a TRO is to preserve the status quo to allow time for 

an adjudication of the dispute on the merits; it should not grant final 

relief. In re Newton, 146 S.W.3d 648, 652 (Tex. 2004). 

Was it an abuse of discretion for the trial court to issue a TRO 

that drastically altered the status quo and effectively granted 

final relief by purporting to invalidate longstanding Texas 

marriage law? 

 

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xi 

4. The plaintiffs requested an ex parte TRO from a criminal court, not 

the duty judge, even though Travis County Local Rule 7.2 mandates that 

“[r]equests for ex parte relief or any other emergency matter . . . must be 

presented to the Duty Judge.” 

Was it an abuse of discretion for the trial court judge—who was 

not the duty judge—to grant an ex parte TRO? 

5. A TRO requires, among other things, a showing of immediate and 

irreparable injury and it must explain why it is issued without notice. 

Tex. R. Civ. P. 680. 

Was the TRO void, given that the plaintiffs failed to show 

immediate and irreparable injury as a matter of law and the TRO 

does not explain why it was issued without notice? 

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No. 15-0139 

In the Supreme Court of Texas

IN RE STATE OF TEXAS, 

 Relator

On Petition for Writ of Mandamus to 

167th Judicial District Court, Travis County, Texas

AMENDED PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE SUPREME COURT OF TEXAS: 

Pursuant to Rule 52 of the Texas Rules of Appellate Procedure, the 

State of Texas seeks relief from a TRO, issued ex parte, holding that 

Article I, section 32 of the Texas Constitution and Texas Family Code 

sections 2.001, 2.012, and 6.204 violate “the Due Process Clause and the 

Equal Protection Clause of the Fourteenth Amendment to the United 

States Constitution.” MR Tab C at 1. The trial court abused its 

discretion by (1) holding Texas law unconstitutional without first 

notifying the Texas Attorney General, as required by statute; (2) failing 

to wait for the Court’s forthcoming resolution of the constitutional issues; 

(3) drastically altering the status quo rather than preserving it; (4) 

effectively granting final relief to the plaintiffs before the adverse parties 

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2 

were even notified; and (5) granting an ex parte TRO while not acting as 

the duty judge, in violation of the local rules. Not only was the issuance 

of the TRO an abuse of discretion, the TRO itself was void because it 

violated mandatory procedural requirements. 

As a result of the trial court’s erroneous ruling, at least one samesex couple has been issued a void marriage license, and the state of the 

law in Texas has been needlessly cast into doubt. Relief from the Court 

is necessary to avoid the legal chaos that would follow if the trial court’s 

ruling is seen as a model for other courts to follow or mistakenly 

interpreted as authorization for the creation or recognition of same-sex 

marriages in Travis County or throughout the State. Relief is also 

necessary to make clear that the Court will not tolerate the misuse of the 

judicial process on display in this case. 

There is no adequate appellate remedy, given that a TRO is 

unappealable. The Court should (1) grant the petition for writ of 

mandamus; (2) order the trial court to vacate its ruling that Texas 

marriage law is unconstitutional (or at the very least stay the ruling 

pending the Court’s resolution of the constitutional issues); (3) confirm 

that any marriage license issued pursuant to the trial court’s improper 

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3 

order was void ab initio; and (4) clarify that it is an abuse of discretion 

for any state court to hold Texas marriage law unconstitutional or enjoin 

enforcement of that law while those issues are under review in the Court 

and the United States Supreme Court. 

STATEMENT OF FACTS

At 8:52 a.m. on February 19, 2015, Sarah Goodfriend and Suzanne 

Bryant (the plaintiffs), hand filed a lawsuit in a Travis County criminal 

court challenging the constitutionality of Article I, section 32 of the Texas 

Constitution and Texas Family Code sections 2.001, 2.012, and 6.204. 

MR Tab A. The plaintiffs requested a temporary restraining order, a 

preliminary injunction, and a permanent injunction against the 

enforcement of Texas marriage law so that Travis County Clerk 

DeBeauvoir could issue them a marriage license. MR Tab A. The 

plaintiffs’ request was ex parte; no notice was given to the county clerk 

or the Attorney General.1 Although an ex parte TRO requires an 

emergency, Tex. R. Civ. P. 680, the plaintiffs did not allege facts sufficient 

 

1 Because the plaintiffs challenged the constitutionality of Texas marriage law, the 

Attorney General was entitled to notice. See TEX. GOV’T CODE § 402.010. The State 

has a justiciable interest in the case given its well-recognized interest in defending 

Texas law. Terrazas v. Ramirez, 829 S.W.2d 712, 721-22 (Tex. 1991); In re Marriage 

of J.B. & H.B., 326 S.W.3d 654, 661 (Tex. App.—Dallas 2010, pet. granted). 

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4 

to demonstrate an emergency and provided no explanation for why there 

was not time to notify the adverse parties. MR Tab A. 

And although Travis County Local Rule 7.2 states that “[r]equests 

for ex parte relief or any other emergency matter . . . must be presented 

to the Duty Judge,” the plaintiffs did not present their application for a 

TRO to the Duty Judge (Judge Stephen Yelenosky, that day). Instead, 

the plaintiffs’ counsel, Charles Herring, “said he called three judges 

before he found one—167th Criminal District Judge David Wahlberg—

who could arrive at the Austin courthouse by 8:30 a.m. on Feb. 19.” 

Angela Morris, The Wedding Planner: A Step-by-Step Legal Analysis of

State’s First Same-Sex Marriage, TEXAS LAWYER, March 2, 2014, 

available at http://bit.ly/1BDR6MJ. And “‘[r]ather than filing with the 

clerk,” as required by Rule 21 of the Texas Rules of Civil Procedure “‘we 

filed directly with the judge,’ Herring recalled.” Id.

2

Judge Wahlberg, a criminal court judge, granted the TRO 

immediately,3 holding that the “unconstitutional statutory and state 

 

2 The plaintiffs also filed by paper, contrary to the Court’s mandate to file 

electronically. See Tex. R. Civ. P. 21(f)(1); Amended Order Requiring Electronic Filing 

in Certain Courts, Misc. Docket No. 13-9092 (Tex. June 24, 2013). 

3 The order is annotated with the same time as the plaintiffs’ petition, 8:52 a.m. 

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5 

constitutional prohibitions in Texas against same-sex marriage, 

including as set out in and applied through Texas Family Code §§ 2.001, 

2.012, and 6.204, and in Article I, § 32 of the Texas Constitution” caused 

an “ongoing violation of [the plaintiffs’] rights under the Due Process 

Clause and the Equal Protection Clause of the Fourteenth Amendment 

to the United States Constitution, through the denial of their vital, 

personal right to marry.” MR Tab C at 1. The trial court did not explain 

why the TRO was granted without notice. See id. Rather, the court held 

that the plaintiffs were suffering an “immediate and irreparable” injury 

because their constitutional rights were being violated, and that 

“Goodfriend’s health condition strongly militates in favor of issuing 

immediate relief.” Id. 

The trial court also waived the statutory 72-hour waiting period for 

a marriage license. MR Tab D. Later that morning, the county clerk 

issued a marriage license. See Chuck Lindell, Travis County Clerk Issues 

First Legal Gay Marriage License in Texas, AUSTIN AMERICANSTATESMAN, Feb. 19, 2015, http://atxne.ws/17vl7lo. 

The Attorney General was not notified of the plaintiffs’ 

constitutional challenge, but learned of the action only because the 

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6 

county clerk notified a federal district court of the TRO in an unrelated 

same-sex marriage case. MR Tab G. Upon learning of the order, the 

State immediately intervened in the case at 10:54 a.m., and sought 

emergency relief from the Court in a motion filed at 11:02 a.m. The Court 

stayed the TRO later that afternoon, MR Tab F, and the State filed its 

original mandamus petition on February 20. 

Unbeknownst to the State, however, at 11:53 a.m. on February 19, 

just three hours after filing their lawsuit, the plaintiffs nonsuited their 

case because “they now have realized their dream to be married.” MR 

Tab E. The plaintiffs never notified the State, even though it had 

intervened, and the State learned of the nonsuit five days later, after 

receiving media inquiries about it. 

ARGUMENT

Mandamus relief is available when (1) a court abuses its discretion 

and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. 

v. Am., 148 S.W.3d 124, 135-36 & n.47 (Tex. 2004) (citing Walker v. 

Packer, 827 S.W.2d 833, 840 (Tex. 1992)). A trial court “has no discretion 

in determining what the law is or in applying the law to the facts, even if 

the law is somewhat unsettled.” In re Jorden, 249 S.W.3d 416, 424 (Tex. 

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2008) (footnote omitted). Accordingly, an error of law constitutes a clear 

abuse of discretion. Id.; Prudential, 148 S.W.3d at 135. 

I. THE TRIAL COURT ABUSED ITS DISCRETION IN MULTIPLE WAYS. 

A. The Trial Court Abused Its Discretion by Holding 

Texas Marriage Law Unconstitutional Without First 

Notifying the Attorney General. 

The trial court’s ruling was an abuse of discretion because it did not 

comply with statutory procedural requirements. Texas law requires a 

party challenging the constitutionality of Texas law to file a form with 

the trial court advising it of the constitutional challenge, after which the 

trial court must notify the Attorney General. TEX. GOV’T CODE

§ 402.010(a).4 “The purpose of this statute is to provide the attorney 

general with the opportunity to be heard on issues important to the laws 

of the state—the laws the attorney general’s office is charged with 

defending and enforcing.” In re State, No. 04-14-00282-CV, 2014 WL 

2443910, at *2 (Tex. App.—San Antonio, May 28, 2014, orig. proceeding). 

 

4 Although the Texas Court of Criminal Appeals held in a criminal case that section 

402.010 violates separation of powers, Ex Parte Lo, 424 S.W.3d 10, 29 (Tex. Crim. 

App. 2013), that ruling does not apply in civil proceedings, In re State, No. 04-14-

00282-CV, 2014 WL 2443910, at *2 (Tex. App.—San Antonio, May 28, 2014, orig. 

proceeding). 

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8 

Neither the parties nor the trial court provided notice to the 

Attorney General of the constitutional challenge, the TRO, or the 

constitutional ruling against Texas law. Rather, the Attorney General 

learned of the ruling from a notice filed in an unrelated federal same-sex 

marriage lawsuit. MR Tab E. The trial court’s failure to notify the 

Attorney General of the constitutional challenge violated section 402.010 

and was therefore a clear abuse of discretion. In re Jorden, 249 S.W.3d 

at 424; Prudential, 148 S.W.3d at 135. 

In a similar case, the San Antonio Court of Appeals granted 

mandamus relief when a trial court in a same-sex divorce case declared 

Texas marriage law unconstitutional without first notifying the Attorney 

General and providing an opportunity for the State to defend the law. In 

re State, 2014 WL 2443910, at *4 (holding that “the trial court abused its 

discretion in failing to provide notice to the attorney general of a 

constitutional challenge to Texas state laws” and ordering the trial court 

to vacate its order declaring Texas marriage law unconstitutional). The 

same reasoning applies here, and the trial court’s erroneous ruling 

should be vacated. 

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9 

 The failure to give notice cannot be explained by lack of knowledge 

of the law, either, as the plaintiffs’ counsel, Brian Thompson, was well 

aware of the notice requirement in section 402.010(a). Thompson 

represents a party challenging Texas marriage law in another case, and 

there he specifically cited section 402.010(a) and the need to give notice 

to the Attorney General as the basis for seeking a continuance.5 MR Tab 

H at 14-15. 

B. The Trial Court Abused Its Discretion by Holding 

Texas Marriage Law Unconstitutional and Enjoining 

Its Enforcement While Those Laws Are Under Review 

in the Court. 

The trial court also abused its discretion by purporting to invalidate 

Texas marriage law and commanding the county clerk to stop enforcing 

the law while the Court is considering the constitutionality of those laws. 

The Court should confirm that a lower court’s failure to stay a 

constitutional ruling while that issue is pending in the Court is an abuse 

 

5 In that case, Estate of Stella Marie Powell, No. C-1-PB-14-001695 (Travis Cnty. 

Probate Ct. No. 1), the trial court held Texas marriage law unconstitutional in an 

interlocutory order, and a mandamus petition from that ruling is pending in the 

Court. In re State of Texas, No. 15-0135. 

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10 

of discretion because it interferes with the Court’s orderly and uniform 

resolution of constitutional issues in the State. 

The constitutional issues addressed in the trial court’s order are the 

same issues under review by the Court in In re Marriage of J.B and H.B, 

No. 11-0024, State v. Naylor, No. 11-0114, and In re State of Texas, No. 

11-0222, all of which are fully briefed and were argued on November 5, 

2013. Specifically, these cases address whether Article I, section 32 of 

the Texas Constitution and Texas Family Code section 6.204 violate the 

federal constitution. The trial court’s refusal to stay its hand on these 

serious constitutional questions was an abuse of discretion. Cf. Perry v. 

Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (“As a rule, when cases involving 

the same subject matter are brought in different courts, the court with 

the first-filed case has dominant jurisdiction and should proceed, and the 

other cases should abate.”). 

This is not the first time a trial court improperly failed to wait for 

the Court’s ruling on these issues. After the San Antonio Court of 

Appeals granted mandamus relief when a trial court declared Texas 

marriage law unconstitutional without first notifying the Attorney 

General, In re State, 2014 WL 2443910, that trial court again held Texas 

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11 

marriage law unconstitutional. As a result, the court of appeals stayed 

all trial court proceedings in that case because the issues were similar to 

those pending in J.B. and H.B. and Naylor. In re Marriage of A.L.F.L. 

and K.L.L., No. 04-14-00364-CV, 2014 WL 4357457 (Tex. App.—San 

Antonio, August 13, 2014). 

The trial court’s order is an abuse of discretion because it frustrates 

the Court’s orderly resolution of these issues on a statewide basis. The 

Court should make clear that no court should strike down as 

unconstitutional Texas marriage law without staying that ruling pending 

decisions from the United States Supreme Court and the Court. 

C. The Trial Court Abused Its Discretion by Drastically 

Altering, Rather than Preserving, the Status Quo. 

By purporting to strike down longstanding Texas law and authorize 

the plaintiffs to change their marital status in a TRO, the trial court 

abolished the status quo and thereby clearly abused its discretion. “The 

purpose of a TRO is to preserve the status quo.” In re Newton, 146 S.W.3d 

648, 651 (Tex. 2004); Cannan v. Green Oaks Apts., Ltd., 758 S.W.2d 753, 

755 (Tex. 1988) (per curiam) (“The issuance of a temporary restraining 

order, like the issuance of a temporary injunction, is to maintain the 

status quo between the parties.”). Invalidating established law and 

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allowing the plaintiffs to affirmatively obtain a license otherwise 

forbidden by law is the exact opposite of preserving the status quo. 

Longstanding Texas law should not “be adjudicated illegal based merely 

on pleadings and a brief, non-evidentiary TRO hearing when substantial 

rights are involved and the issues are far from clear.” See Newton, 146 

S.W.3d at 651. The plaintiffs’ and the trial court’s use of the TRO as a 

sword rather than for its intended purpose as a temporary legal shield 

should not be tolerated. 

D. The Trial Court Abused Its Discretion by Effectively 

Granting Final Relief in a TRO. 

The trial court also abused its discretion by issuing a TRO that 

effectively granted final relief to the plaintiffs. It is an abuse of discretion 

for a trial court to make a final adjudication in a TRO or temporary 

injunction. Newton, 146 S.W.3d at 652; Janus Films, Inc. v. City of Fort 

Worth, 358 S.W.2d 589, 590 (1962) (per curiam) (explaining that granting 

a temporary injunction to require the issuance of a permit to show a film 

before the city could contest the matter would defeat the purpose of a 

temporary injunction proceeding); Edgewood Indep. Sch. Dist. v. Paiz, 

856 S.W.2d 269, 271 (Tex. App.—San Antonio 1993, no writ) (holding that 

a temporary injunction reversing the status quo and “provid[ing] plaintiff 

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the complete relief he seeks” before the adverse party could contest the 

matter is an abuse of discretion); Sheffield v. Town of Duncanville, 236 

S.W.2d 851, 852 (Tex. Civ. App.—Dallas 1951, writ refused n.r.e.) (“A 

temporary restraining order is not available where the effect of it would 

settle the controversy.”). 

In Newton, the trial court granted a TRO (after two days’ notice) 

that adjudicated a violation of state law and barred the adverse party 

from participating in an election. 146 S.W.3d at 652. The trial court also 

set the hearing on the temporary injunction for the day after the election. 

The Court held that the trial court abused its discretion because it 

“essentially made a final, non-appealable adjudication” in a TRO. Id. 

The trial court’s actions here were even more egregious than in 

Newton. With no notice, the trial court purported to invalidate a 

provision of the State Constitution and multiple sections of the Family 

Code and authorized the plaintiffs to obtain a marriage license, contrary 

to Texas law. The fact that the plaintiffs nonsuited their case hours

later—after “realiz[ing] their dream to be married”—confirms the 

impropriety of using an ex parte TRO as a vehicle for final relief and 

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vividly illustrates the legal mischief that could arise if other litigants and 

trial courts in Texas saw this approach as a model. 

E. The Trial Court Abused Its Discretion by Granting Ex 

Parte Relief in Violation of Local Rules. 

It is an abuse of discretion for a trial court to violate procedural 

rules, including local court rules. See, e.g., Dancy v. Daggett, 815 S.W.2d 

548, 549 (Tex. 1991) (violation of local rules was abuse of discretion); In 

re Tex. Nat. Res. Conservation Comm’n, 85 S.W.3d 201, 205 (Tex. 2002) 

(violation of Texas Rules of Civil Procedure was abuse of discretion). The 

local rules in Travis County dictate that “[r]equests for ex parte relief or 

any other emergency matter . . . must be presented to the Duty Judge.” 

Travis Cnty. Dist. Ct. Loc. R. 7.2. There are no exceptions to this rule. 

Nevertheless, the plaintiffs did not present their request for ex parte 

relief in this civil matter to the duty judge, but rather filed directly with 

a criminal court. By granting the ex parte TRO, the trial court violated 

Local Rule 7.2 and abused its discretion. 

II. THE TRO IS VOID BECAUSE NOTICE WAS NEITHER GIVEN NOR 

EXCUSED.

 A TRO granted in noncompliance with the requirements of Rule 680 

is void. In re Office of Attorney Gen., 257 S.W.3d 695, 697 (Tex. 2008). 

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The TRO here is void because (1) the trial court failed to explain why the 

TRO was issued without notice, and (2) it was issued without a clear 

showing that immediate and irreparable injury excused notice to the 

adverse parties. 

A. The Trial Court Failed to State Why the TRO Was 

Granted Without Notice. 

The TRO is void because it failed to state “why the order was 

granted without notice.” Tex. R. Civ. P. 680. Regarding the purported 

emergency nature of the proceeding, the TRO merely stated that 

“Plaintiff Goodfriend’s health condition strongly militates in favor of 

issuing immediate relief, before a hearing can be held on Plaintiffs’ 

request for temporary injunction and before a final trial on the merits of 

permanent injunctive relief.” MR Tab C at 1-2. The order made no 

mention of notice or why relief was required before notice could be given. 

Accordingly, the TRO violated the express requirements of Rule 680 and 

is void. See Office of Attorney Gen., 257 S.W.3d at 697 (deeming void 

TROs that “were granted ex parte but fail to explain why they were 

granted without notice”). 

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B. The Plaintiffs Failed to Show an Emergency That 

Prevented Them from Giving Notice. 

A trial court cannot issue an ex parte TRO “unless it clearly appears 

from specific facts shown by affidavit or by the verified complaint that 

immediate and irreparable injury, loss, or damage will result to the 

applicant before notice can be served and a hearing had thereon.” Tex. 

R. Civ. P. 680. The TRO is void because the plaintiffs did not show, as a 

matter of law, that “immediate and irreparable” injury would befall them 

“before notice can be served and a hearing had” on the motion. 

The plaintiffs did not even attempt to explain why there was no 

time for notice, and their only alleged “immediate and irreparable” injury 

was the denial of a marriage license, which was based on their contention 

that Texas marriage law is unconstitutional. MR Tab C at 1. That 

alleged injury cannot be “immediate and irreparable,” however, because 

it is contingent on the Court or the United States Supreme Court 

recognizing a constitutional right to same-sex marriage. The plaintiffs’ 

constitutional claims therefore cannot excuse their failure to give notice.6 

 

6 In fact, the opposite is true. See TEX. GOV’T CODE § 402.010(a) (requiring notice to 

the Attorney General of any constitutional challenge to Texas law). 

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The real emergency, as the plaintiffs and their attorney later 

admitted, was to obtain an invalid marriage license before they could be 

stopped. The plaintiffs’ counsel, Charles Herring, explained to the press 

that the urgency for seeking a swift ruling was out of fear that “our 

window of opportunity would close on Friday.” Angela Morris, The 

Wedding Planner, TEXAS LAWYER, March 2, 2014; see also Chuck Lindell, 

Video Interview of Sarah Goodfriend and Suzanne Bryant at 5:00-5:39; 

29:39-29:58, AUSTIN AMERICAN-STATESMAN, Feb. 23, 2015, 

http://atxne.ws/1BmreXa (opining that the probate court’s order in 

Powell created “a window of opportunity” to obtain a marriage license). 

The plaintiffs’ counsel also erased any notion that there was no time to 

notify the State of their intent to seek a TRO when he admitted that they 

“worked all night on Feb. 17 and all day on Feb. 18 to prepare their 

pleadings and orders,” which were filed on February 19. Angela Morris, 

The Wedding Planner, TEXAS LAWYER, March 2, 2014. 

C. The Marriage License Is Also Void. 

Because the county clerk relied on a void TRO when issuing the 

marriage license, the marriage license itself is void. Furthermore, Texas 

Family Code section 6.204(b) provides that “[a] marriage between 

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persons of the same sex . . . is contrary to the public policy of this state 

and is void in this state.” By staying the trial court’s order, the Court 

confirmed that this provision remains in effect, and that provision 

renders void any same-sex marriage in Texas, no matter when or where 

it was entered into. 

Moreover, the trial court did not purport to strike down the common 

law of marriage in Texas, which has always limited marriage to one man 

and one woman. See, e.g., Grigsby v. Reib, 153 S.W. 1124, 1130 (Tex. 

1913) (“Marriage is not a contract, but a status created by mutual consent 

of one man and one woman.”). When the Legislature began to codify the 

common law of marriage, it did not abrogate the background principle 

that marriage is limited to opposite-sex couples. See Cash Am. Int’l Inc. 

v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) (explaining that a statute 

abrogates the common law only when its express terms or necessary 

implications clearly indicate that intent). 

III. THE PLAINTIFFS CANNOT EVADE THE COURT’S REVIEW WITH A 

NONSUIT. 

The plaintiffs may argue that their nonsuit moots this petition and 

insulates the invalid TRO from the Court’s review. The plaintiffs would 

be wrong for at least two reasons. First, their nonsuit was invalid 

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because the trial court purported to adjudicate their claim in the TRO. 

Second, even if the nonsuit were legitimate, the plaintiffs’ action is 

capable of repetition yet would evade review if their nonsuit were allowed 

to moot the mandamus proceeding.7

A. The Nonsuit Was Invalid Because the Trial Court 

Purported to Adjudicate the Plaintiffs’ Claim in the 

TRO. 

A nonsuit may not be taken “[o]nce a judge announces a decision 

that adjudicates a claim.” Hyundai Motor Co. v. Alvarado, 892 S.W.2d 

853, 855 (Tex. 1995) (per curiam). Given the ultimate relief the TRO 

purported to provide, the plaintiffs cannot shield the trial court’s 

constitutional adjudication from the Court’s review by taking a nonsuit. 

See id. (holding that “[a] decision on the merits . . . is not vitiated” by a 

nonsuit). 

B. The Plaintiffs’ and the Trial Court’s Improper Actions 

Are Capable of Repetition Yet Would Evade Review if 

the Nonsuit Mooted the Mandamus Proceeding. 

As the plaintiffs demonstrated here, it is possible to file a lawsuit, 

obtain an ex parte TRO that purports to invalidate Texas law, obtain a 

 

7 For the same reasons described here, the State’s mandamus petition is not moot 

after March 5, when the TRO expires as a matter of law. 

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waiver of the 72-hour waiting period, obtain an invalid marriage license, 

exchange vows, and dismiss the lawsuit in a period of three hours. Even 

if the State had been notified of the plaintiffs’ action from the outset—

and it was not—three hours is insufficient for the State to intervene, file 

a mandamus petition and emergency stay motion, and obtain a ruling 

from the Court. 

The Court addressed similar manipulation of its mandamus 

jurisdiction in In re Allied Chemical Corp., 227 S.W.3d 652, 655 (Tex. 

2007). There, the plaintiffs attempted to moot a consolidation order that 

was under review in a pending mandamus proceeding by seeking to 

deconsolidate the cases. Id. The Court refused to dismiss the mandamus 

petition, reasoning that “[t]he situation that gives rise to this proceeding 

is . . . fully capable of repetition,” and that “if review can be evaded by the 

modification of orders pending mandamus proceedings, the defendants 

would be put to the repeated expense of seeking review only to have it 

denied by last-minute changes in the trial court’s orders.” Id. 

The situation presented in this case is likewise capable of repetition 

and will evade review if the Court acquiesces to the plaintiffs’ legal 

maneuvers, which are even more troubling than those in Allied 

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Chemical. There, the plaintiffs’ actions gave the defendants much of the 

relief sought. Here, however, the plaintiffs are attempting to render the 

TRO—and void marriage license—a fait accompli. The Court should 

reject this misuse of the legal system and make clear that such action 

will not insulate orders from review. 

IV. ABSENT MANDAMUS RELIEF, THE TRIAL COURT’S ORDER 

THREATENS CONTINUED SERIOUS, IMMINENT HARM. 

Mandamus relief is necessary because the plaintiffs’ and trial 

court’s actions could cause a host of additional legal and practical 

problems that undermine the public interest in predictable and clear 

legal rules. Parties, courts, and clerks may mistakenly believe that the 

plaintiffs’ and the trial court’s actions in the case are an acceptable way 

to litigate significant constitutional issues. Also, other same-sex couples, 

courts, and county clerks may mistakenly believe that Texas’s marriage 

laws have been invalidated, clearing the way for the erroneous issuance 

of other invalid same-sex marriage licenses in Travis County or 

throughout the State. 

These problems are real, not theoretical. As this case proves, a 

single court’s erroneous ruling on Texas marriage law may be relied upon 

by other courts, counsel, and litigants seeking invalid marriage licenses. 

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22 

The plaintiffs’ scheme to obtain a marriage license began shortly after 

their counsel, Mr. Thompson, obtained a ruling on behalf of a different 

client in a probate proceeding that Texas marriage law was 

unconstitutional. Despite Mr. Thompson’s assurances that it was 

“wholly speculative” that anyone would rely on the probate court’s ruling, 

Response to Emergency Motion for Temporary Relief at 3, In re Texas, 

No. 15-0135 (Tex., filed Feb. 19, 2015), his clients in this case did exactly 

that, MR Tab A. 

V. THERE IS NO ADEQUATE REMEDY BY APPEAL. 

The Attorney General cannot challenge the trial court’s erroneous 

constitutional ruling through the normal appellate process because “a 

temporary restraining order is generally not appealable.” Newton, 146 

S.W.3d at 652. Mandamus relief is therefore appropriate because there 

is no adequate appellate remedy. Office of Attorney Gen., 257 S.W.3d at 

698. 

PRAYER

The Court should grant the petition for writ of mandamus. 

 

 

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23 

 Respectfully submitted. 

 KEN PAXTON

 Attorney General of Texas 

 CHARLES E. ROY

 First Assistant Attorney General 

 SCOTT A. KELLER

 Solicitor General 

BETH KLUSMANN

Assistant Solicitor General 

 /s/ Michael P. Murphy 

 MICHAEL P. MURPHY

 Assistant Solicitor General 

 State Bar No. 24051097 

 OFFICE OF THE ATTORNEY GENERAL

 P.O. Box 12548 (MC 059) 

 Austin, Texas 78711-2548 

 Tel.: (512) 936-2995 

 Fax: (512) 474-2697 

 michaelp.murphy@texasattorneygeneral.gov 

COUNSEL FOR RELATOR

 

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MANDAMUS CERTIFICATION

 Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that 

I have reviewed this petition and that every factual statement in the 

petition is supported by competent evidence included in the appendix or 

record. Pursuant to Rule 52.3(k)(l)(A), I certify that every document 

contained in the appendix is a true and correct copy 

/s/ Michael P. Murphy 

 Michael P. Murphy 

 Counsel for Relator

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CERTIFICATE OF SERVICE

I certify that on March 6, 2015, the foregoing document was served 

via File & ServeXpress or electronic mail upon counsel for real parties in 

interest. A courtesy copy was also sent to counsel for real parties in 

interest by electronic mail. 

Kurt Kuhn 

Lisa Bowlin Hobbs 

KUHN HOBBS PLLC 

3307 Northland Drive, Suite 310 

Austin, Texas 78731 

Tel.: (512) 476-6003 

Fax: (512) 476-6002 

Kurt@KuhnHobbs.com 

Lisa @KuhnHobbs.com

Brian T. Thompson 

Craig Hopper 

HOPPER MIKESKA, PLLC 

400 W. 15th Street, Suite 408 

Austin, Texas 78701 

Tel.: (512) 615-6195 

Fax: (512) 610-1306 

bthompson@hoppermikeska.com

Charles Herring, Jr. 

Jess M. Irwin III 

HERRING & IRWIN, LLP 

1411 West Ave., Ste. 100 

Austin, Texas 78701 

Tel.: (512) 320-0665 

Fax: (512) 519-7580 

cherring@herring-irwin.com 

jess@herring-irwin.com

Catherine A. Mauzy 

MAUZY & TUCKER PLLC 

1717 West 6th St., #315 

Austin, Texas 78703 

Tel.: (512) 474-1493 

Fax: (512) 479-7910 

cam@mauzylaw.com

The Respondent was served a copy by U.S. Mail, sent March 6, 2015. 

Hon. David Wahlberg 

Judge of 167th District Court, Travis County, Texas

509 West 11th, 8th floor 

Austin, TX 78701 

Phone: (512) 854-9310 

Fax: (512) 854-6425 

RESPONDENT

/s/ Michael P. Murphy 

 Michael P. Murphy 

 Counsel for Relator 

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26 

CERTIFICATE OF COMPLIANCE

 In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this 

brief contains 4,481 words, excluding the portions of the brief exempted 

by Rule 9.4(i)(1). 

 /s/ Michael P. Murphy 

 Michael P. Murphy 

 Counsel for Relator 

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APPENDIX AND RECORD

 

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VERIFIC,ATION

THE STATE OF TEXAS

COUNTY OF TRAVIS

Before me, the undersigned notary, on this day personally appeared Michael

P. Murphy, a person whose identity is known to me. After I administered an oath to

him, upon his oath he said the following:

"My name is Michael P. Murphy. I am over twenty-one (21) years of age, of

sound mind, and am capable of making this affidavit. The facts stated in this affidavit

are within my personal knowledge and are true and correct. I am an attorney with

the Office of the Solicitor General, Office of the Texas Attorney General, representing

Relator The State of Texas. I am licensed to practice in the State of Texas, and

prepared., with co-counsel, the Amended Petition for Writ of Mandamus and

mand.amus record and appendix, attached to the Petition as the Appendix and

Record. AII of the documents in the attached Appendix are true and correct copies of

the documents identified or true and correct copies of the documents filed in this

action, as those documents exist in our files or were transferred to me by co-counsel."

Signed day of 15.

Michael P. M hy, Affiant

SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this

6th day of 20t6.

Notary Public in and for the State of Texas

s

s

s

CECILIAANN HERTEL

Î{otary Publlc

STATE OF ÎEXAS

Commlsslon Exp, OCI02, 2018

My commission expires: 0 0z zol Notary wlthout Bond

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INDEX TO MANDAMUS APPENDIX AND RECORD

TAB 

Plaintiffs’ Original Petition and Application for 

Temporary Restraining Order ............................................................. A 

Order Permitting Paper Filing ................................................................ B 

 

Order Granting Temporary Restraining Order ....................................... C 

72 Hour Waiver Form .............................................................................. D 

Plaintiffs’ Notice of Nonsuit Without Prejudice 

 Against Defendant ............................................................................. E 

 

Order from Texas Supreme Court Staying 

 Temporary Restraining Order ...........................................................F 

Letter to Judge Sparks in Zahrn v. Abbott .............................................. G 

Sonemaly Phrasavath’s Response to Special Exceptions and Motion to 

Dismiss and Motion for Continuance ................................................ H 

 

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A 

 

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Case 1:13-cv-00955-SS Document 28 Filed 02/19/15 Page 2 of 8

Langan 47

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Case 1:13-cv-00955-SS Document 28 Filed 02/19/15 Page 3 of 8

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Case 1:13-cv-00955-SS Document 28 Filed 02/19/15 Page 4 of 8

Langan 49

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Case 1:13-cv-00955-SS Document 28 Filed 02/19/15 Page 5 of 8

Langan 50

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Case 1:13-cv-00955-SS Document 28 Filed 02/19/15 Page 6 of 8

Langan 51

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B 

 

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Case 1:13-cv-00955-SS Document 28 Filed 02/19/15 Page 7 of 8

Langan 53

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C 

 

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NO. L

SARAH GOODFRIEND AND § IN THE J

SUZANNE BRYANT §

§

PLAINTIFFS §

§

VS. §

§

OFTRA

DANA DEBEAUVOIR, TRAVIS §

COUNTY CLERK §

§

DEFENDANT. §

ORDER

JUDICIAL DISTRICT

Plaintiffs Sarah Goodfriend and Suzanne Bryant have filed Plaintiffs' Original Petition

and Application for Temporary Restraining Order, supported by affidavit, against Defendant

Dana DeBeauvoir, the County Clerk of Travis County.

It clearly appears from the facts set forth in the Application that because ofthe current,

unconstitutional statutory and state constitutional prohibitions in Texas against same-sex

marriage, including as set out in and applied through Texas Family Code §§ 2.001, 2.012, and

6.204, and in Article I, § 32 ofthe Texas Constitution, Plaintiffs are unable to obtain issuance of

a marriage license by Defendant DeBeauvoir.

The Court finds that unless the Court immediately issues a Temporary Restraining Order,

the unconstitutional denial of a marriage license to Plaintiffs will cause immediate and

irreparable damage to Plaintiffs, based solely on their status as a same-sex couple. That

irreparable injury includes the ongoing violation oftheir rights under the Due Process Clause and

the Equal Protection Clause ofthe Fourteenth Amendment to the United States Constitution,

through the denial of their vital, personal right to marry. Based on the Plaintiffs sworn pleading

regarding the severity and uncertainty of Plaintiff Goodfriend's health condition, the Court finds

% Langan 55

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that Plaintiff Goodfriend's health condition strongly militates in favor of issuing immediate

relief, before a hearing can be held on Plaintiffs' request for temporary injunction and before a

final trial on the merits of permanent injunctive relief. Plaintiffs have no adequate remedy at law

for the damage and the continuing harm that this course of action is causing them and will

continue to cause them, and thus the only remedy available to Plaintiffs is the issuance of a

temporary restraining order to prevent that ongoing unconstitutional denial of Plaintiffs'

constitutional rights.

IT IS THEREFORE ORDERED that Defendant Dana DeBeauvoir, County Clerk of

Travis County, is hereby commanded forthwith to cease and desist relying on the

unconstitutional Texas prohibitions against same-sex marriage as a basis for not issuinga

marriage license to Plaintiffs Sarah Goodfriend and Suzanne Bryant.

The clerk ofthis Court shall on the filing of the bond, as specified below, issue a

temporary restraining order in conformity with the law and the terms ofthis Order.

This Ordershallremain in place and effective for 14calendar days after the datethis

Order is signed.

The Plaintiffs' request for temporary injunction shall be set for heanng on -g

2015, at^ ju/fa ^

This Order shall not be effective unless and until Plaintiffs execute and file with the clerk

acash bond, in conformity with the law, in the amount of$[££• . ^Zr

SIGNED on/!-7/, 2015.

"PRESIDING) JUDGE

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FEB I I 2015

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NO. D-I-GN-1

SARAH GOODFRIEND AND

SUZANNE BRYANT

PLAINTIFFS

VS.

DANA DEBEAUVOIR, TRAVIS

COUNTY CLERK

DEFENDAI'{T

COME NOW, Plaintiffs, Saratr Goodfriend

!g,20l5,and hereby give notice to this Cowt

have realized their dream to be maried,

this case, against Defendant, Dana

OF TRAVIS COI.INTY, TEXAS

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IN THE DISTRICT COURT

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Bryant, on this date, FebruarY

parties to this suit ttrat because they now

taking a Nonsuit Without Prejudice as to

County Clerk, effective immediately on

submitted,

HERRIN & IRWIN, L.L.P.

Avenue, Suite 100

Herring, Jr

Bar No. 09534100

: chenine(A,henin g-irwirl.com

M. Irwin III

Bar No. 10425700

: iess@hEnine-irwin.com

Langan 60

Case 1:20-cv-00275-RP Document 10-1 Filed 06/08/20 Page 60 of 103
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IN THE SUPREME COURT OF TEXAS

NO. 15-0139

IN RE STATE OF TEXAS, RELATOR

ON MOTION FOR TEMPORARY RELIEF

ORDERED:

1. Relator’s emergency motion for temporary relief, filed February 19, 2015,

is granted in part. The trial court order dated February 19, 2015, styled Sarah Goodfriend

and Suzanne Bryant v. Dana DeBeauvoir, Travis County Clerk, in the 167th District

Court of Travis County, Texas, is stayed pending further order of this Court.

Done at the City of Austin, this February 19, 2015.

BLAKE A. HAWTHORNE, CLERK

SUPREME COURT OF TEXAS

BY CLAUDIA JENKS, CHIEF DEPUTY CLERK

FILE COPY

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Case 1:13-cv-00955-SS Document 28 Filed 02/19/15 Page 1 of 8

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H 

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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UNOFFICIAL

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/

“We continue to defend the sovereignty of the states and their

constitutional authority to dene marriage in this country. As the Sixth

Circuit Court of Appeals has held, the states’ authority to dene marriage

and choose whether to ofcially recognize marriages performed in other

states is constitutional. I urge the Supreme Court to uphold the appeals

court’s ruling and strike down these blatant attempts to disregard the will

of millions of citizens in Texas and dozens of other states who stood and

voted for the cherished institution of marriage.”

Attorney General Paxton continues to actively uphold Texas law in the

face of unconstitutional actions taken by Travis County judges.

Additionally, in January, the Attorney General’s Ofce defended the

institution of marriage before the U.S. Court of Appeals for the Fifth

Circuit.

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Attor ney Gen eral Ken Pax ton: Fol low ing High Court’s Flawed

Rul ing, Next Fight is Reli gious Liberty

(/news/releases/attorney-general-ken-paxton-following-highcourts-flawed-ruling-next-fight-religious-liberty)

“Today’s ruling by ve Justices of the U.S. Supreme Court

marks a radical departure from countless generations of societal law and

tradition. The impact of this opinion on our society and the familial

fabric of our nation will be profound. Far from a victory for anyone, this is

instead a dilution of marriage as a societal institution."

June 26, 2015

Attor ney Gen eral Pax ton Applauds Pas tor Protec tion Bill;

Calls for Protec tion for All Peo ple of Faith in Texas

(/news/releases/attorney-general-paxton-applauds-pastorprotection-bill-calls-protection-all-people-faith-texas)

Attorney General Ken Paxton today participated in the bill signing for

Senate Bill 2065, commonly referred to as the Pastor Protection Bill. The

law shields pastors and churches from lawsuits regarding their refusal to

Langan 83

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/

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ATTORNEY GENERAL KEN PAXTON: FOLLOWING HIGH COURT'S FLAWED RULING, NEXT FIGHT IS RELIGIOUS

LIBERTY

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June 26, 2015 | Marriage (/news/categories/marriage)

Attor ney Gen eral Ken Pax -

ton: Fol low ing High Court’s

Flawed Rul ing, Next Fight

is Reli gious Liberty

3

Texas Attorney General Ken Paxton today issued the following statement

following the U.S. Supreme Court’s awed ruling on states’ constitutional

right to dene marriage, stating the next ght is religious liberty:

“Today’s ruling by ve Justices of the U.S. Supreme Court marks a radical

departure from countless generations of societal law and tradition. The

impact of this opinion on our society and the familial fabric of our nation

will be profound. Far from a victory for anyone, this is instead a dilution

of marriage as a societal institution.

“What is most disturbing is the extent to which this opinion is yet

another assault on the actual text of the U.S. Constitution and the rule of

law itself. Just as Roe v. Wade ripped from the hands of the American

people the issue of life and placed it in the judge-made ‘penumbras’ of

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> > >

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/

the Constitution, so has this opinion made clear that our governing

document – the protector of our liberties through representative

government – can be molded to mean anything by unelected judges.

“But no court, no law, no rule, and no words will change the simple truth

that marriage is the union of one man and one woman. Nothing will

change the importance of a mother and a father to the raising of a child.

And nothing will change our collective resolve that all Americans should

be able to exercise their faith in their daily lives without infringement

and harassment.

“We start by recognizing the primacy and importance of our rst

freedom – religious liberty. The truth is that the debate over the issue of

marriage has increasingly devolved into personal and economic

aggression against people of faith who have sought to live their lives

consistent with their sincerely-held religious beliefs about marriage. In

numerous incidents trumpeted and celebrated by a sympathetic media,

progressives advocating the anti-traditional marriage agenda have used

this issue to publicly mock, deride, and intimidate devout individuals for

daring to believe differently than they do. This ruling will likely only

embolden those who seek to punish people who take personal, moral

stands based upon their conscience and the teachings of their religion.

“It is not acceptable that people of faith be exposed to such abuse. The

First Amendment to the U.S. Constitution protects our religious liberty

and shields people of faith from such persecution, but those aspects of its

protections have been denigrated by radicals, echoed by the media and

an increasingly-activist judiciary. Consistent with existing federal and

state Religious Freedom Restoration Acts that should already protect

religious liberty and prevent discrimination based on religion, we must

work to ensure that the guarantees of the First Amendment, protecting

freedom of religion, and its corollary freedom of conscience, are secure

for all Americans.

“Our guiding principle should be to protect people who want to live, work

and raise their families in accordance with their religious faith. We

should ensure that people and businesses are not discriminated against

by state and local governments based on a person’s religious beliefs,

including discrimination against people of faith in the distribution of

grants, licenses, certication or accreditation; we should prevent

harassing lawsuits against people of faith, their businesses and religious

organizations; we should protect non-prots and churches from state

and local taxes if the federal government penalizes them by removing

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/

their 501(c)(3) status; and we should protect religious adoption and

foster care organizations and the children and families they serve.

Shortly, my ofce will be addressing questions about the religious

liberties of clerks of court and justices of the peace.

“Displays of hate and intolerance against people of faith should be

denounced by all people of good will and spark concern among anyone

who believes in religious liberty and freedom for all.

“Despite this decision, I still have faith in America and the American

people. We must be vigilant about our freedom and must use the

democratic process to make sure America lives up to its promise as a

land of freedom, religious tolerance and hope.”

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Attor ney Gen eral Pax ton Applauds Pas tor Protec tion Bill;

Calls for Protec tion for All Peo ple of Faith in Texas

(/news/releases/attorney-general-paxton-applauds-pastorprotection-bill-calls-protection-all-people-faith-texas)

Attorney General Ken Paxton today participated in the bill signing for

Senate Bill 2065, commonly referred to as the Pastor Protection Bill. The

law shields pastors and churches from lawsuits regarding their refusal to

perform or host a marriage ceremony that violates their sincerely held

religious beliefs. The bill passed thanks to the heroic efforts of Senator

Craig Estes and Representative Scott Sanford, himself a pastor. Attorney

General Paxton issued the following statement:

June 11, 2015

Attor ney Gen eral Pax ton State ment on Pas sage of Pas tor Pro -

tec tion Bill (/news/releases/attorney-general-paxtonstatement-passage-pastor-protection-bill)

"Across our nation, religious values have come under assault, and

today’s bipartisan action in the Texas House is a clear step

forward in the ongoing effort to preserve our rst freedom: religious

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/

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AG PAXTON LEADS 20-STATE COALITION DEFENDING RELIGIOUS LIBERTY

SHARE THIS:

September 07, 2017

AG Pax ton Leads 20-State

Coali tion Defend ing Reli -

gious Liberty

2

Attorney General Ken Paxton today led a 20-state coalition in ling an

amicus brief with the U.S. Supreme Court in support of a Colorado cake

artist’s constitutionally-protected right to religious liberty. The case is

widely regarded as one of the most signicant on the high court’s docket

in the upcoming term.

Jack Phillips, the owner of Masterpiece Cakeshop, is appealing a state

court decision he lost after he declined to create a cake for a same-sex

marriage because of his deeply-held religious belief that marriage is the

union of one man and one woman. In the past, the Supreme Court held

that businesses run on religious principles may be exempted from

generally applicable laws.

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“The Supreme Court has the opportunity to afrm that the First

Amendment contains robust protections for people who choose to

operate their businesses consistent with their faith,” Attorney General

Paxton said. “The owner of Masterpiece Cakeshop should be allowed to

choose what he will or won’t create without fear of being unjustly

punished by the government.”

Phillips routinely turns down business that promotes other messages

that are also incompatible with his faith, such as racism and atheism.

Nevertheless, his refusal to design a cake for a same-sex wedding was

rejected by the Colorado Court of Appeals and that state’s Civil Rights

Commission.

Texas is joined in the Supreme Court amicus brief by the attorneys

general of Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana,

Missouri, Montana, Nebraska, Nevada, North Dakota, Oklahoma, South

Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin,

and Governor LePage of Maine.

View the amicus brief (/sites/default/les/les/press/16-

111_tsac_States.pdf)

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AG Pax ton Joins Ami cus Defend ing Sec ond Amend ment and

Right to Self Defense (/news/releases/ag-paxton-joinsamicus-defending-second-amendment-and-right-selfdefense)

June 04, 2020 | Amicus Brief

AG Pax ton Com mends Fifth Circuit for Block ing Dis trict Court

Deci sion Man dat ing Unlaw ful, Uni ver sal Mail-In Balloting

(/news/releases/ag-paxton-commends-fifth-circuit-blockingdistrict-court-decision-mandating-unlawful-universal-mail)

June 04, 2020 | Press Release Langan 88

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/

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AG PAXTON OFFERS ASSISTANCE TO TARGET AFTER ANOTHER SECURITY BREACH

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September 09, 2016

AG Pax ton Offers Assis -

tance to Tar get After

Anoth er Secu ri ty Breach

0

In the wake of multiple Dallas/Ft. Worth media outlets reporting another

breach in customer security at Target stores in North Texas, Attorney

General Ken Paxton issued the following statement:

"After this latest incident, I hope Target nally recognizes the importance

of protecting its customers, especially in environments where they can

be at their most vulnerable. I am offering them the resources of my ofce

to help assist them in improving their safety procedures."

On May 3, 2016, a man was peering over the changing room wall with a

cellphone camera at a Target store in Frisco, Texas. Since last Thursday,

police in Dallas are looking for a man who committed a similar act in a

Target changing room on Northwest Highway at Abrams.

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ATTORNEY GENERAL PAXTON FILES AMICUS IN VIRGINIA SCHOOL BATHROOM LAWSUIT

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May 11, 2016

Attor ney Gen eral Pax ton

Files Ami cus in Vir ginia

School Bath room Lawsuit

0

Attorney General Ken Paxton on Tuesday joined seven other state

executives in pushing back against the U.S. Department of Education’s

agenda to redene what it means to be female and male. In an amicus brief

led in the U.S. Court of Appeals for the Fourth Circuit, General Paxton

challenges a court ruling against the Gloucester School District in Virginia,

which prohibited a female student from using the school restrooms and

other intimate facilities designated for males.

The trial court in that case deferred to the Department of Education’s new

interpretation of Title IX’s denition of “sex,” which holds that Congress

intended students to be able to choose their gender when it came to Title IX

of the Education Amendments of 1972. This means students may choose

which intimate facilities in schools (bathrooms, locker rooms, etc.) they

wish to access.

“One’s sex is a biological fact, not a state of mind,” stated General Paxton.

“If this radical new interpretation by the Department of Education is

permitted to go unchallenged, schools may no longer be able to maintain

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separate restrooms, showers, and locker rooms on the basis of students’

actual sex. Title IX permits all schools to maintain separate facilities,

including bathrooms and locker rooms, and I will defend that principle.”

Also on Tuesday, General Paxton sent a letter to the chairman of the Fort

Worth Independent School District school board informing him of several

ways in which the district’s policy regarding transgender students and

bathrooms violates state law.

To view the amicus brief, please visit:

https://www.texasattorneygeneral.gov/les/epress/les/2016/gloucester_amicus_brief.pdf

(https://www.texasattorneygeneral.gov/les/epress/les/2016/gloucester_amicus_brief.pdf)

To view the letter Attorney General Paxton sent to the FWISD school board,

please visit:

https://www.texasattorneygeneral.gov/les/epress/les/2016/2016-05-

10_fort_worth_letter.pdf

(https://www.texasattorneygeneral.gov/les/epress/les/2016/2016-05-

10_fort_worth_letter.pdf)

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AG Pax ton Files Mul ti state Ami cus Defend ing Reli gious Lib erty

for Fos ter Care Providers (/news/releases/ag-paxton-filesmultistate-amicus-defending-religious-liberty-foster-careproviders)

June 03, 2020 | Noteworthy

AG Pax ton Warns U.S. Sen ate Lead er ship of Dan gers to Elec tion

Integri ty in Expand ing Mail-In Bal lot ing with the HEROES Act

(/news/releases/ag-paxton-warns-us-senate-leadershipdangers-election-integrity-expanding-mail-balloting-heroesact)

June 01, 2020 | Press Release

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AG PAXTON: TEXAS LEADS FIGHT AGAINST DOE, DOJ BATHROOM & LOCKER ROOM RULES

SHARE THIS:

May 25, 2016

AG Pax ton: Texas Leads

Fight Against DOE, DOJ

Bath room & Lock er

Room Rules

8

The Texas Attorney General today led a lawsuit in U.S. District Court

against the U.S. Department of Education, U.S. Department of Justice,

and other federal agencies and ofcials, which are now issuing directives

requiring Texas public schools open up all intimate areas (restrooms,

locker rooms, etc.) to both sexes. The State of Texas’s lawsuit also defends

a local school district whose policies are at odds with the Obama

Administration directive.

“Our local schools are now in the crosshairs of the Obama

Administration, which maintains it will punish those schools who do not

comply with its orders. These schools are facing the potential loss of

school funding for simply following common sense policies that protect

their students,” Texas Attorney General Paxton said. “This represents

just the latest example of the current administration’s attempts to

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accomplish by executive at what they couldn’t accomplish through the

democratic process in Congress. By forcing through his policies by

executive action, President Obama excluded the voice of the people. We

stand today to ensure those voices are heard.”

The Obama Administration is attempting to rewrite Congress’s use of the

term “sex” in federal law to now expand to include “gender identity.” If

successful, this radical change opens up all intimate areas within schools

simultaneously to members of both sexes. Texas is joined by 10 other

states in pushing back against enforcement of these unconstitutional

rules.

Joining Texas in the ling are Alabama, Arizona, Georgia, Louisiana,

Maine, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin.

To view the lawsuit, please visit:

https://www.texasattorneygeneral.gov/les/epress/les/2016/complaint_FM.pdf

(https://www.texasattorneygeneral.gov/les/epress/les/2016/complaint_FM.pdf)

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AG Pax ton Joins Ami cus Defend ing Sec ond Amend ment and

Right to Self Defense (/news/releases/ag-paxton-joinsamicus-defending-second-amendment-and-right-selfdefense)

June 04, 2020 | Amicus Brief

AG Pax ton Com mends Fifth Circuit for Block ing Dis trict Court

Deci sion Man dat ing Unlaw ful, Uni ver sal Mail-In Balloting

(/news/releases/ag-paxton-commends-fifth-circuit-blockingdistrict-court-decision-mandating-unlawful-universal-mail)

June 04, 2020 | Press Release

Langan 94

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/

AG Pax ton Files Mul ti state Ami cus Defend ing Reli gious Lib er -

ty for Fos ter Care Providers (/news/releases/ag-paxton-filesmultistate-amicus-defending-religious-liberty-foster-careproviders)

June 03, 2020 | Noteworthy

AG Pax ton Warns U.S. Sen ate Lead er ship of Dan gers to Elec -

tion Integri ty in Expand ing Mail-In Bal lot ing with the HEROES

Act (/news/releases/ag-paxton-warns-us-senate-leadershipdangers-election-integrity-expanding-mail-balloting-heroesact)

June 01, 2020 | Press Release

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AG PAXTON RESPONDS TO THE ANNOUNCEMENT OF SENATE BILL 6

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January 05, 2017

AG Pax ton Responds to the

Announce ment of Sen ate

Bill 6

0

Attorney General Ken Paxton today issued the following statement of

support for Senate Bill 6, the Privacy Protection Act:

“After our success in stopping President Obama’s bathroom rules in

court, states are now free to enact legislation of their choosing to protect

privacy. Texans should feel safe and secure when they enter any intimate

facility, so I applaud the work of Lieutenant Governor Patrick and Senator

Kolkhorst for ghting to protect women and children from those who

might use access to such facilities for nefarious purposes.”

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JOINING A COALITION OF 23 STATES, TEXAS AG PAXTON FILES AMICUS BRIEF TO PROTECT STUDENT PRIVACY

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January 10, 2017

Join ing a Coali tion of 23

States, Texas AG Pax ton

Files Ami cus Brief to Pro -

tect Stu dent Privacy

0

Joining a coalition of 23 states led by West Virginia, Texas Attorney

General Ken Paxton today led an amicus brief in the United States

Supreme Court supporting the Gloucester County School Board in a

lawsuit over Title IX bathroom regulations. A transgender student sued

the school board after they were given the options of using the restroom

corresponding to their biological sex, a private facility, or a unisex

restroom.

The school board argues that the denition of one’s sex in Title IX, which

prohibits discrimination on the basis of sex, by its express terms does

not include gender identity, but instead pertains to biological sex.

In 2015, Gloucester High School constructed three, single stall, unisex

restrooms to better accommodate students who seek privacy, but feel

they cannot use the facility that corresponds with their assigned sex at

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birth. The transgender student suing previously agreed to use a separate

restroom in the nurse’s ofce, but then expressed a preference for the

boys’ bathroom at the high school.

“All students should feel safe and secure at school, especially in the most

private of places,” said Attorney General Paxton. “Schools must be

allowed to act in the best interest of the entire student body and protect

them from persons who may abuse access to intimate facilities and

threaten our children.”

The Supreme Court has implemented a stay of the ruling against the

school board from the 4th U.S. Circuit Court of Appeals.

This case predated the federal government’s May 2016 guidance letter.

The letter determined that Title IX’s prohibition on sex discrimination

includes gender identity and that students can use the intimate facility of

their choice, regardless of their biological sex. Attorney General Paxton is

leading a 13-state coalition that obtained a nationwide preliminary

injunction against the guidance letter.

View a copy of the amicus brief here

(https://www.texasattorneygeneral.gov/les/epress/16-

273tsac_State_of_West_Virginia_Amicus_Brief-c1.pdf).

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Act (/news/releases/ag-paxton-warns-us-senate-leadershipLangan 98

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6/4/2020 Texas attorney general pitches Texas business community on "bathroom bill" | The Texas Tribune

https://www.texastribune.org/2017/01/17/paxton-pitches-business-community-bathroom-bill/ 1/4

Ken Paxton pitches Texas business community on

"bathroom bill"

Attorney General Ken Paxton on Tuesday pitched the "bathroom bill" to the Texas business

community, which has vocally opposed the effort to regulate bathroom use.

BY PATRICK SVITEK JAN. 17, 2017 4 PM

*Editor's note: This story has been updated throughout.

Making his case for the "bathroom bill" to Texas business leaders, Attorney

General Ken Paxton said Tuesday that Senate Bill 6 would have a narrow focus,

and he urged them to listen to parents "just concerned about the safety of their

children."

Paxton spoke about SB 6 during a conference held by the Texas Association of

Business. The bill, a priority of Lt. Gov. Dan Patrick, would require transgender

people to use bathrooms in public schools, government buildings and public

universities based on "biological sex."

Texas Attorney General Ken Paxton during a press conference to recognize January as Human Trafficking Awareness Month on

January 12, 2017. Marjorie Kamys Cotera

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The Texas Association of Business has been fighting the bathroom bill push for

weeks, releasing a study last month that said such legislation could cost the

state up to $8.5 billion and over 100,000 jobs. Patrick and his allies have

criticized the study, saying it is based on bad data and may be politically

motivated.

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Paxton, who has been battling the federal government in court over

transgender student guidelines it issued last year, struck a conciliatory tone

Tuesday as he spoke at the association's meeting. He acknowledged that the

group has been involved in the debate before stressing that the bill "doesn't

apply to businesses, from what I can tell."

SB 6 would pre-empt local ordinances — as applied to bathrooms

— that protect transgender individuals from discrimination in public

accommodations. Those ordinances effectively require businesses, such

as restaurants and retail stores, to allow transgender people to use the

bathroom that matches their gender identity.

Paxton also said the legislation "doesn't apply to entities that are leasing

government facilities," apparently referring to a part of the bill that would, for

example, exempt a sports league that rents a publicly owned venue. It is a key

component of the legislation in light of concerns the measure could cause the

state to lose out on major athletic events such as the Final Four, which is set to

be held in 2018 in San Antonio.

Paxton made an emotional appeal to the crowd as well, pointing to

conversations he has had with parents in the Fort Worth Independent School

District. The district became an early battleground in Texas' bathroom wars last

year when it issued guidelines for transgender students, leading Patrick to call

for the resignation of the superintendent Kent Scribner.

"Really what I learned from them was they were just concerned about the safety

of their children," Paxton said. "And so as you guys deal with that issue, I’m not

in the legislative process anymore, but I encourage you to at least take into

account what these parents are saying because they come from all parties ...

They’re independents, they come from different cultural backgrounds and yet

they’re concerned about the same issue."

The conference heard later in the day from Joseph Kopser, an Austin

businessman who asked the crowd to help Patrick and his allies "find a way out

Police Brutality in Texas Latest Unemployment Numbers Coronavirus Reopening Texas Case Map

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of " the controversy spawned by Senate Bill 6.

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"Let’s get out of the headlines as a state talking about who’s going to enforce

the checking of gender in bathrooms," Kopser said, "and let’s talk about this

Texas economic miracle and keep it going."

Read more of our related coverage:

The so-called bathroom bill has drawn national attention to the Texas

Legislature. But what would the proposed bill actually do? We've

annotated the text to explain in plain English how the bill would

impact communities across Texas.

State Rep. Matt Schaefer proposed a rule requiring people in the

Capitol to use bathrooms corresponding to their biological sex during

a House floor debate in the first week of the 2017 legislative session.

Disclosure: The Texas Association of Business and Joseph Kopser have been

financial supporters of The Texas Tribune. A complete list of Tribune donors

and sponsors can be viewed here.

Quality journalism doesn't come free

Perhaps it goes without saying — but producing quality journalism isn't

cheap. At a time when newsroom resources and revenue across the country

are declining, The Texas Tribune remains committed to sustaining our

mission: creating a more engaged and informed Texas with every story we

cover, every event we convene and every newsletter we send. As a nonprofit

newsroom, we rely on members to help keep our stories free and our events

open to the public. Do you value our journalism? Show us with your support.

YES, I'LL DONATE TODAY

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AG PAXTON COMMENDS 5TH CIRCUIT RULING THAT SPARES TEXAS TAXPAYERS FROM FUNDING SEX-CHANGE SURGERY FOR PRISONERS

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April 01, 2019 | Press Release

AG Pax ton Com mends 5 Circuit Rul ing

that Spares Texas Tax pay ers from Fund -

ing Sex-Change Surgery for Prisoners

8

Attorney General Ken Paxton today commended last Friday’s decision by the U.S. Court of Appeals for the 5

Circuit that Texas prison ofcials do not violate transgender inmates’ constitutional rights against cruel and

unusual punishment by refusing to provide them with gender reassignment surgery.

“The 5 Circuit’s decision is a win for Texas taxpayers and the rule of law,” Attorney

General Paxton said. “Americans strongly believe in the legal and moral obligation to

assure our criminal justice system imposes appropriate and humane penalties, but

the 5 Circuit’s faithful analysis of the Constitution makes clear that obligation does

not give convicted criminals a constitutional right to a taxpayer-funded gender

reassignment surgery.”

In a 2-1 decision, the 5 Circuit ruled against inmate Scott Lynn Gibson, who’s serving a 20-year prison

sentence for the murder of another inmate, 13 years for a deadly assault attempt on a correctional guard, and

18 years for aggravated robbery. Gibson challenged the Texas Department of Criminal Justice’s policy that

provides hormone and mental health treatment but does not allow sex-change surgery as treatment for

Gibson’s diagnosed gender identity disorder.

Writing for the majority, 5 Circuit Judge James Ho concluded that “[u]nder established precedent, it can be

cruel and unusual punishment to deny essential medical care to an inmate. But that does not mean prisons must provide whatever care an inmate wants.”

View a copy of the decision here

(https://www.texasattorneygeneral.gov/sites/default/les/images/admin/2019/Press/PUBLISHED%20OPINION%20FILED%20%2003

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June 03, 2020 | Noteworthy

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