UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DONNA LANGAN,

TERESA DE BARBARAC, and

ALEXANDRA CARSON

Plaintiffs,

§

§

§

§

§ Cause No. 1:20-cv-275

v. §

§

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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§

§

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§

RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

PLAINTIFFS’ AMENDED COMPLAINT

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 Plaintiffs’ Amended Complaint (Docket Entry 11).

The main disagreement between the parties is whether Attorney General Paxton has 

satisfied the final element necessary to be subject to the Ex parte Young doctrine (i.e. whether there 

is sufficient enforcement of the challenged statute).

1 This disagreement should be resolved in 

Plaintiffs’ favor.

Separately but similarly, Defendants’ challenge to Plaintiffs’ standing is not viable – if a 

Defendant has engage in sufficient activity to be subject to the Ex parte Young doctrine, then he 

or she has invariably created a case or controversy sufficient for standing.

1 Defendants’ motion says: “Specifically, Plaintiffs’ claims against Defendants are barred by immunity 

under the Eleventh Amendment because Defendants lack sufficient connection to the enforcement of the

statute at issue to trigger the Ex parte Young exception. Additionally, and for similar reasons, Plaintiffs lack 

standing to pursue their claims against Defendants.” (D.E. 11, p. 1)

Case 1:20-cv-00275-RP Document 15 Filed 07/13/20 Page 1 of 7
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LEGAL STANDARD

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

which may be resolved in part by a “complaint supplemented by undisputed facts evidenced in the 

record.” 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 10 and 10-1). 

ARGUMENT

A. Attorney General Paxton is subject to suit in this matter under the Ex parte Young

doctrine

Plaintiffs agree the Eleventh Amendment generally protects government officials from 

lawsuits filed against them in their official capacities, unless an exception applies. Plaintiffs agree 

they are relying on the Ex parte Young doctrine as their exception to Eleventh Amendment 

Immunity. City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019). Plaintiffs agree that in order 

to apply the Ex Parte Young doctrine against a particular defendant, such as Attorney General 

Paxton, they must show “the state official, ‘by virtue of his office,’ [has] ‘some connection with 

the enforcement of the [challenged] act.’” Id.

The allegations in the Complaint show Attorney General Paxton has sufficient connection 

to the enforcement of the statute at issue to trigger the Ex parte Young exception, having previously 

intervened in local judicial pronouncements regarding same-sex marriage and having articulated 

robust transphobic legal positions, including intimidating the Fort Worth ISD board of trustees in

a letter that challenged the legality of the district’s policy on transgender students and bathrooms, 

and joining several states in an amicus brief challenging [what Paxton characterized as] the U.S. 

Department of Education’s “agenda to redefine what it means to be female and male.” (D.E. 10, 

para 56-66)

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1. Attorney General Paxton is a proper defendant for this lawsuit

The first step for discerning “whether the plaintiff has named the proper defendant or 

defendants” is to determine whether “a state actor or agency is statutorily tasked with enforcing 

the challenged statute,” and if so, whether “a different official is the named defendant.” Id. at 998.

2

In this case, no state actor or agency is statutorily tasked with enforcing the challenged law.

3

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

the state official [being sued] actually has the authority to enforce the challenged law.” Id.

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, the Attorney General is a

properly named defendant for this case. Id.

2. Attorney General Paxton has engaged in “sufficient enforcement actions” with 

regard to the challenged statute

The Court must next “...decide whether the official in question has a ‘sufficient connection 

[to] the enforcement’ of the challenged act.” Id. The Fifth Circuit in City of Austin explained:

“Panels in this circuit have defined ‘enforcement’ as ‘typically involv[ing] compulsion or 

constraint.’” Id. at 1000. In that opinion, the Circuit cited prior case law that ruled the Attorney 

2 Defendants cite Morris v. Livingston in their brief, but it is distinguishable, because it dealt with a statute 

tasking a state agency (the Texas Department of Criminal Justice) with enforcing the challenged law and 

not the named defendant (the Governor). Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014); see City 

of Austin, 943 F.3d at 998.

3 Defendants argue that “...while [Texas Family Code] 45.103 may not explicitly confer the responsibility 

of enforcement on members of the judiciary, it clearly contemplates a judge’s role in the statute’s 

administration.... [t]herefore, under Morris, it is appropriate to infer that the judiciary is statutorily tasks 

with enforcement, thus ending our Ex parte Young analysis.” (D.E. 11, at 5). 

That interpretation of case law cannot be correct because it leads to an absurd result. Courts are the 

final actor enforcing every law; if that meant they were considered entities “statutorily tasked with enforcing 

the challenged law” within the meaning of the Ex parte Young doctrine, then all lawsuits challenging laws 

whose enforcement was not specifically assigned to another office or department could only be 

affirmatively challenged by lawsuits against the judiciary.

Case 1:20-cv-00275-RP Document 15 Filed 07/13/20 Page 3 of 7
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General had engaged in sufficient compulsion or constrain to become subject to Ex parte Young

by sending demand letters to a defendant.4

In contrast, the Circuit then concluded that the plaintiff in City of Austin had failed to make 

the same showing of compulsion or constraint:

Here, the City has made no such showing with respect to the Attorney General’s 

enforcement of § 250.007. Namely, none of the cases the City cites to demonstrate 

the Attorney General’s “habit” of intervening in suits involving municipal 

ordinances to “enforce the supremacy of state law” have any overlapping facts with 

this case or are even remotely related to the Ordinance. ...[T]hat he has chosen to 

intervene to defend different statutes under different circumstances does not show 

that he is likely to do the same here.

Specifically, the City’s brief (arguing the Attorney General had a “habit” of intervening in suits 

involving municipal ordinances) cited some of the Attorney General’s previous lawsuits 

challenging Austin municipal ordinances related to immigration enforcement, short-term rentals, 

and paid sick leave.

5

4

“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”). 804 F.3d at 392−95. There, the court did not explicitly examine Paxton’s “connection 

to the enforcement” of the DTPA. Id. But the 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.”

City of Austin, 943 F.3d at 1001.

5 The Fifth Circuit opinion does not identify the earlier cases the City gave as examples of the Attorney 

General’s habit, but the City’s appellate brief (attached as Exhibit A) shows Texas v. Travis County, Texas, 

910 F.3d 809 (5th Cir. 2018) (immigration); Zaatari, et al., v. City of Austin, et al., D-1 GN-16-002620 

(Travis County District Court, Second Amended Plea in Intervention filed Aug. 24, 2017) (restrictions on

short-term rentals); and Tex. Assoc. of Bus. et al. v. City of Austin, et al., 2018 WL 6005551 (Tex.App. 

—Austin, 2018) (paid sick leave).

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This lawsuit is distinguishable from City of Austin, because while the Attorney General 

may not have previously waded into the issue of fair housing, Paxton has historically been deeply 

involved in matters related to the matters at hand, giving rise to the reasonable expectation he will 

continue to do so. The Attorney General past actions with regard to the legal rights of trans people 

have been far more intrusive and intimidating than demand letters.

For instance, Plaintiffs’ First Amended Complaint describes Paxton’s intervention in

Travis County probate and district court cases that had declared Texas’ law against same-sex 

marriage unconstitutional. (Docket Entry 10-1, 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 

well-recognized interest in defending Texas law.”

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

enforcing [state law].”

(Docket Entry 10-1, at 59). 

When the Texas Supreme Court later dismissed the Attorney General’s Amended Petition 

for Writ of Mandamus as moot (because the U.S. Supreme Court had recently made same-sex 

marriage legal), Justices Willet and Devine agreed with Paxton’s characterization of the Attorney 

General’s office, 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.

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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 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 10-1, 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 intervene in the rulings of local judges such as those 

in Travis County, and in enforcing statutes like Family Code 43.103 if doing so will constrain the

rights of people who are transgender.

B. Standing

The courts recognize that “Article III standing analysis and Ex parte Young analysis 

‘significantly overlap.’” City of Austin, 943 F.3d at 1002.

[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. Since Plaintiffs have demonstrated Defendant Paxton is engaged in enough “compulsion or 

constraint” for the Ex parte Young doctrine to apply, there is necessarily a redressable harm that is 

traceable to Defendant Paxton, giving rise to a case or controversy between the parties.

CONCLUSION

For these reasons, Plaintiffs ask that Defendants’ motion be denied.

DATED: July 13, 2020.

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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

Case 1:20-cv-00275-RP Document 15 Filed 07/13/20 Page 7 of 7