UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DONNA LANGAN, TERESA DE 

BARBARAC, and ALEXANDRA CARSON,

Plaintiffs,

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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CASE NO. 1:20-cv-275-RP

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(1)

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

RYAN L. BANGERT

Deputy First Assistant Attorney General

DARREN L. MCCARTY

Deputy Attorney General for Civil Litigation

THOMAS A. ALBRIGHT

Chief, General Litigation Division

KIMBERLY GDULA

Assistant Attorney General

Texas Bar No. 24052209

General Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2120 | FAX: (512) 320-0667

Kimberly.Gdula@oag.texas.gov

ATTORNEYS FOR DEFENDANTS

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TABLE OF CONTENTS

Table of Authorities........................................................................................................................ ii

I. Introduction......................................................................................................................... 1

II. Background......................................................................................................................... 1

III. Standard of Review............................................................................................................. 2

IV. Argument ............................................................................................................................ 2

A. Plaintiffs Lack Standing to Pursue Their Claims Against Defendants......................... 3

1. Plaintiffs’ alleged injury is not fairly traceable to Defendants............................... 3

2. Plaintiffs have not shown an action against Defendants will redress 

alleged injury .......................................................................................................... 4

B. Plaintiffs’ Claims are Barred by Eleventh Amendment Immunity............................... 5

V. Conclusion .......................................................................................................................... 8

Certificate of Service ...................................................................................................................... 9

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TABLE OF AUTHORITIES

Cases

Air Evac EMS, Inc. v. Tex. Dep’t of Ins., 

851 F.3d 507 (5th Cir. 2017) ..................................................................................................... 8

City of Austin v. Paxton, 

943 F.3d 993 (5th Cir. 2019) ................................................................................................. 7, 9

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 

527 U.S. 666 (1999)................................................................................................................... 6

Does #1-7 v. Abbott, 

345 F. Supp. 3d 763 (N.D. Tex. 2018) .................................................................................. 4, 5

Ex parte Young, 

 209 U.S. 123 (1908).................................................................................................................. 8

Freedom from Religion Found., Inc. v. Mack, 

No. H-17-881, 2018 WL 6981153 (S.D. Tex. Sept. 27, 2018).................................................. 6

Friends of the Earth, Inc. v. Laidlaw Envt’l. Servs. (TOC), Inc., 

528 U.S. 167 (2000)............................................................................................................... 3, 4

FW/PBS, Inc. v. City of Dallas, 

493 U.S. 215 (1990).................................................................................................................... 3

Garcia Guevara v. City of Haltom City, 

106 F. App’x 900 (5th Cir. 2004).............................................................................................. 6

Hafer v. Melo, 

502 U.S. 21 (1991)..................................................................................................................... 7

Hooks v. Landmark Indus., Inc., 

797 F.3d 309 (5th Cir. 2015) ..................................................................................................... 2

Inclusive Communities Project, Inc. v. Abbott, 

No. 3:17-CV-0440, 2018 WL 2415034 (N.D. Tex. May 29, 2018).......................................... 5

K.P. v. LeBlanc, 

729 F.3d 427 (5th Cir. 2013) ..................................................................................................... 8

Ky. v. Graham, 

473 U.S. 159 (1985)................................................................................................................... 7

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)............................................................................................................... 3, 4

Morris v. Livingston, 

739 F.3d 740 (5th Cir. 2014) ................................................................................................. 8, 9

Okpalobi v. Foster, 

244 F.3d 405 (5th Cir. 2001) ................................................................................................. 5, 8

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Perez v. U.S., 

312 F.3d 191 (5th Cir. 2002) ..................................................................................................... 4

Ramming v. United States, 

281 F.3d 158 (5th Cir. 2001) ............................................................................................. 1, 2, 3

Seibert v. Baptist, 

594 F.2d 423 (5th Cir.1979), cert. denied, 100 S. Ct. 1851 (1980)........................................... 7

Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998)..................................................................................................................... 4

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014)................................................................................................................... 3

Yul Chu v. Miss. State Univ., 

901 F. Supp. 2d 761 (5th Cir. 2012).......................................................................................... 7

Statutes

TEX. FAM. CODE § 45.101............................................................................................................... 5

TEX. FAM. CODE § 45.103........................................................................................................... 2, 5

TEX. FAM. CODE § 45.103(b).......................................................................................................... 7

U.S. CONST. ART. III, § 2, cl. 1........................................................................................................ 3

Rules

FED. R. CIV. P. 12(b)(1) .............................................................................................................. 1, 2

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I. INTRODUCTION 

The Fifth Circuit has explained that jurisdictional arguments should be addressed before 

any attack on the merits. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). 

Neither Defendant is a proper party to this suit; therefore, Defendants file this Motion to Dismiss 

Pursuant to FED. R. CIV. P. 12(b)(1) (“Motion”) because the Court lacks subject-matter

jurisdiction over Plaintiffs’ claims. Specifically, Plaintiffs do not have standing to sue 

Defendants because their asserted injuries are not traceable to them, and a judgment against 

Defendants would, in any event, not redress those alleged injuries. Additionally, and for similar 

reasons, Plaintiffs cannot overcome Defendants’ Eleventh Amendment immunity to suit.

Since Plaintiffs lack standing to pursue their claims against Defendants and said claims 

are barred by Eleventh Amendment immunity, Defendants request the Court dismiss Plaintiffs’ 

suit in its entirety.

II. BACKGROUND

Plaintiffs challenge the constitutionality of Texas’s name-change statute, codified in 

Chapter 45 of the Family Code, on Eighth Amendment grounds. Plaintiffs specifically challenge 

§ 45.103, which provides in pertinent part:

(b) A court may order a change of name under this subchapter for a 

person with a final felony conviction if:

(1) in addition to the requirements of Subsection (a) [requiring the 

change be in the interest or to the benefit of the petition and in the 

interest of the public], the person has:

(A) received a certificate of discharge by the Texas Department of 

Criminal Justice or completed a period of community supervision 

or juvenile probation ordered by a court and not less than two years 

have passed from the date of the receipt of discharge or completion 

of community supervision or juvenile probation; or

(B) been pardoned; or

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(2) the person is requesting to change the person's name to the 

primary name used in the person's criminal history record 

information.

TEX. FAM. CODE § 45.103.

Plaintiffs—who are three transgendered current or former inmates of the federal prison 

system—claim that by requiring them to wait until two years after they have successfully 

completed their sentences to legally change their names, the statute constitutes cruel and unusual 

punishment in violation of the Eighth Amendment of the United States Constitution.

While Defendants deny that Plaintiffs’ suit has any substantive merit, Defendants file this 

Motion because Plaintiffs are procedurally barred from bringing these claims for two reasons: 

(1) Plaintiffs lack standing to bring the claims asserted; and (2) the Eleventh Amendment bars 

Plaintiffs claims because Defendants are entitled to sovereign immunity for which no waiver or 

exception applies.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subjectmatter jurisdiction. FED. R. CIV. P. 12(b)(1). When a court lacks the statutory or constitutional 

power to adjudicate a case, the case is properly dismissed for lack of subject-matter jurisdiction. 

Hooks v. Landmark Indus., Inc., 797 F.3d 309, 312 (5th Cir. 2015). “The burden of proof for a 

Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming, 281 F.3d at

161. “Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact 

exist.” Id.

IV. ARGUMENT

The concepts of standing and immunity under the Eleventh Amendment are closely 

linked. Here, as described below, Plaintiffs’ inability to link Defendants with the enforcement of 

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§ 45.103 deprives this Court of subject-matter jurisdiction over Plaintiffs’ claims on both 

standing and immunity grounds.

A. Plaintiffs Lack Standing to Pursue Their Claims Against Defendants

Article III of the Constitution limits the jurisdiction of the federal courts to “Cases” and 

“Controversies.” U.S. CONST. ART. III, § 2, cl. 1. The reason for this jurisdictional limitation is to 

restrain the federal courts from deciding abstract and advisory questions of law. Accordingly, 

any federal court plaintiff must have case-or-controversy “standing” to assert a claim. Susan B. 

Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (citing Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560-61 (1992)). “[S]tanding is perhaps the most important of the jurisdictional 

doctrines.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (internal quotation omitted). 

To establish standing, a plaintiff must show: (1) an actual or imminent, concrete and 

particularized “injury-in-fact”; (2) that is fairly traceable to the challenged action of the 

defendant; and (3) that is likely to be redressed by a favorable decision. Friends of the Earth, Inc. 

v. Laidlaw Envt’l. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). All three elements are “an 

indispensable part of the plaintiff’s case,” and the party seeking to invoke federal jurisdiction 

bears the burden to establish them. Lujan, 504 U.S. at 561. Jurisdiction is “a threshold issue that 

must be resolved before any federal court reaches the merits of the case before it.” Perez v. U.S., 

312 F.3d 191, 194 (5th Cir. 2002); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 

94-95 (1998). In this case, Plaintiffs cannot establish at least two of the three indispensable 

elements of standing. 

1. Plaintiffs’ alleged injury is not fairly traceable to Defendants

First, Plaintiffs cannot show the injury they claim to have suffered is fairly traceable to an 

action by Defendants. See Friends of the Earth, 528 U.S. at 180-81. Traceability requires 

Plaintiffs to show a causal connection between their injury and an action taken by Defendants, 

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rather than “the result of the independent action of some third party not before the court.” Does 

#1-7 v. Abbott, 345 F. Supp. 3d 763, 773 (N.D. Tex. 2018). General authority to enforce state 

laws is not sufficient to satisfy the traceability requirement necessary to establish standing. Id.

Plaintiffs’ only attempt to link Defendants to their alleged injuries-in-fact is found in their 

claim that each “has both the authority and duty to uphold the laws of Texas, and is bound by 

oath and legal duty to uphold the United States Constitution.” See Am. Compl. ¶¶ 6, 7. Critically, 

Plaintiffs do not identify any action—or a threat of action—taken by either Defendant related to 

the statute at issue in this case. Instead, Plaintiffs attempt to do exactly what the court in Does 

#1-7 rejected: create traceability under the guise of Defendants’ general authority to enforce state 

laws. Because Plaintiffs have not alleged any facts to show that they have suffered an injury-infact that is fairly traceable to Defendants, they lack standing. See id.; see also Inclusive 

Communities Project, Inc. v. Abbott, No. 3:17-CV-0440, 2018 WL 2415034, at *6 (N.D. Tex. 

May 29, 2018) (holding that plaintiff lacked standing to sue Governor Abbott where challenged 

provisions of law “do not provide Governor Abbott with the authority or ‘definite 

responsibilities’ to enforce the Statute.”).

2. Plaintiffs have not shown an action against Defendants will redress alleged 

injury

The second component of standing that Plaintiffs cannot satisfy is the redressability 

requirement. This requires Plaintiffs to prove that the relief sought against Defendants (declaring 

§ 45.103 unconstitutional and enjoining Defendants from denying Plaintiffs the right to legally 

change their names) will actually redress the injury of which they complain (the inability to 

legally change their names under Texas law). Okpalobi v. Foster, 244 F.3d 405, 425 (5th Cir. 

2001) (en banc). Plaintiffs cannot make this showing.

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By its terms, Chapter 45 of the Family Code requires a person wishing to legally change 

his or her name to file a petition in the county of his or her residence. TEX. FAM. CODE § 45.101. 

It is then up to the state court where the petition was filed to determine if the petitioner’s request 

should be granted. See id. § 45.103. Critically, the statute does not vest any power in either 

Governor Abbott or General Paxton to enforce or otherwise regulate its application. Courts have 

previously held that municipalities cannot be held liable for the actions of local judges, who, as 

elected officials, the municipality has no power to control. Freedom from Religion Found., Inc. 

v. Mack, No. H-17-881, 2018 WL 6981153v, at *4 (S.D. Tex. Sept. 27, 2018) (citing Garcia 

Guevara v. City of Haltom City, 106 F. App’x 900, 902 (5th Cir. 2004)). In this case, an 

injunction against Defendants will not prevent Plaintiffs’ petitions for a name change under 

Chapter 45 of the Family Code from being denied because neither Defendant is responsible for 

enforcing those provisions.

Since Plaintiffs cannot show their alleged injury—the inability to legally change their 

names under Chapter 45 of the Family Code—is the result of some action by Defendants or that 

a judgment against Defendants would redress that injury, Plaintiffs lack standing to pursue their 

claims against Defendants. Therefore, Defendants request the Court dismiss this lawsuit in its 

entirety.

B. Plaintiffs’ Claims are Barred by Eleventh Amendment Immunity

The Eleventh Amendment to the United States Constitution bars an individual from suing 

a state in federal court unless the state consents to suit or Congress has clearly and validly 

abrogated the state's sovereign immunity. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. 

Expense Bd., 527 U.S. 666, 670 (1999); City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 

2019). Because state officials sued in their official capacities are considered arms of the state, 

Eleventh Amendment immunity applies to claims brought against officials in their official 

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capacities. Hafer v. Melo, 502 U.S. 21, 25 (1991); City of Austin, 943 F.3d at 997; Yul Chu v. 

Miss. State Univ., 901 F. Supp. 2d 761, 771 (5th Cir. 2012). 

Plaintiffs have sued both Defendants in their official capacities only. See Am. Compl. 

¶¶ 6, 7. “Official-capacity suits . . . generally represent only another way of pleading an action 

against an entity of which an officer is an agent.” Ky. v. Graham, 473 U.S. 159, 165v (1985)

(quotation marks omitted). Therefore, Plaintiffs may only maintain their claims against 

Defendants if (a) Congress has expressly abrogated Eleventh Amendment immunity for these 

claims, (b) Texas has waived its Eleventh Amendment immunity for these claims, or (c) the Ex 

parte Young exception applies. As Congress has not abrogated immunity for Eighth Amendment 

claims and Texas has not waived its immunity for such claims, Plaintiffs must rely on Ex parte 

Young to vest the Court with jurisdictional authority to adjudicate their claims. Seibert v. Baptist, 

594 F.2d 423, 431 (5th Cir.1979), cert. denied, 100 S. Ct. 1851 (1980) (holding that the Eighth 

Amendment does not expressly waive sovereign immunity).

However, the Ex Parte Young exception is unavailing here. Under Ex parte Young, a 

plaintiff seeking prospective injunctive relief based on an alleged ongoing constitutional 

violation may sue a state officer in his official capacity. K.P. v. LeBlanc, 729 F.3d 427, 439 (5th 

Cir. 2013). However, to apply Ex parte Young, Plaintiffs must show that Defendants have “the 

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

duty.” Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (quoting Okpalobi, 244 F.3d at

416). This requirement “is designed to ensure defendant is not merely being sued ‘as a 

representative of the state, and thereby attempting to make the state a party.’” Air Evac EMS, Inc. 

v. Tex. Dep’t of Ins., 851 F.3d 507, 517 (5th Cir. 2017) (quoting Ex parte Young, 209 U.S. 123, 

157 (1908)). 

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Morris is instructive in this case. There, the Fifth Circuit found that the Eleventh 

Amendment barred an official-capacity claim against Governor Perry challenging the 

constitutionality of a state statute. Morris, 739 F.3d at 744, 746. The Fifth Circuit reasoned that 

the challenged law did “not specially task Governor Perry with its enforcement, or suggest that 

he will play any role at all in its enforcement.” Id. at 746. Similarly, TEX. FAM. CODE § 45.103 

does not task either Governor Abbott or General Paxton with its enforcement; rather, by its 

express terms, § 45.103 is enforced by Texas state courts. See TEX. FAM. CODE § 45.103(b)

(providing that a “court may order a name change . . . for a persona with a final felony 

conviction . . . .”) (emphasis added). 

Since § 45.103 specifically tasks Texas state courts—and not either Defendant—with its 

enforcement, the Court need go no further to find that Plaintiffs’ claims are barred by Eleventh 

Amendment immunity. See City of Austin, 943 F.3d at 998 (holding that “[w]here a state actor or 

agency is statutorily tasked with enforcing the challenged law and a different official is the 

named defendant, our Young analysis ends.”). 

However, even if the Court deems it necessary to continue with the Ex parte Young

analysis, Plaintiffs’ claims against Defendants will still be barred by Eleventh Amendment 

immunity because Defendants do not have sufficient connection to the enforcement of § 45.103. 

As the Fifth Circuit stated in City of Austin, for the Ex parte Young exception to apply, the 

official named in the suit “must have ‘the particular duty to enforce the statute in question and a 

demonstrated willingness to exercise that duty.’” Id. at 999. Importantly, a “general duty to see 

that the laws of the state are implemented” is insufficient to defeat Eleventh Amendment 

immunity. Id. (citing Morris, 739 F.3d at 746). Instead, the Fifth Circuit instructs that Plaintiffs 

must demonstrate specific enforcement actions taken by Defendants that would warrant 

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application of the Ex parte Young exception. Id. at 1001. Since Plaintiffs have made no such 

showing with regards to either Defendant, the Ex parte Young exception does not apply, and 

Plaintiffs’ claims are barred by Eleventh Amendment immunity.

V. CONCLUSION

Plaintiffs cannot pursue the claims made in this lawsuit against Defendants because 

Plaintiffs lack standing to pursue those claims. Moreover, Plaintiffs’ claims are barred by 

immunity under the Eleventh Amendment for which no waiver or exception applies. Therefore, 

Defendants respectfully request this Court grant this Motion, dismiss Plaintiffs’ claims against 

Defendants, and for such other relief, whether in law or in equity, to which Defendants may be 

entitled.

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Respectfully submitted,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

RYAN L. BANGERT

Deputy First Assistant Attorney General

DARREN L. MCCARTY

Deputy Attorney General for Civil Litigation

THOMAS A. ALBRIGHT

Chief, General Litigation Division

/s/ Kimberly Gdula

KIMBERLY GDULA

Texas Bar No. 24052209

Assistant Attorney General

General Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2120 | FAX: (512) 320-0667

Kimberly.Gdula@oag.texas.gov

ATTORNEYS FOR DEFENDANTS

GOVERNOR GREG ABBOTT AND

KEN PAXTON, ATTORNEY GENERAL OF TEXAS

CERTIFICATE OF SERVICE

I hereby certify that on May 15, 2020, I electronically filed the foregoing instrument with 

the Clerk of the Court using CM/ECF which will send electronic notification of such filing to all 

registered counsel.

/s/ Kimberly Gdula

KIMBERLY GDULA

Assistant Attorney General

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