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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’ REPLY IN SUPPORT OF 

MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Defendants Greg Abbott, in his official capacity as the Governor of Texas, and Ken Paxton, 

in his official capacity as Attorney General of Texas, hereby submit this their Reply in Support of 

their Motion to Dismiss Plaintiffs’ Amended Complaint [Dkt. 11] and request that the Court 

dismiss Plaintiffs’ claims because Plaintiffs’ claims are barred by Eleventh Amendment immunity 

and Plaintiffs lack standing to pursue their claims against Defendants.

I. SUMMARY OF PLAINTIFFS’ RESPONSE TO MOTION TO DISMISS

Defendants moved for dismissal pursuant to FED. R. CIV. P. 12(b)(1) because (1) Plaintiffs 

lack standing to pursue their claims against Defendants, and (2) Plaintiffs’ claims are barred by 

Eleventh Amendment immunity. Although Plaintiffs bear the burden of proof as the party asserting 

jurisdiction, Plaintiffs’ Response [Dkt. 15] wholly fails to provide any basis for asserting subjectmatter jurisdiction as to Defendant Greg Abbott. Therefore, as a matter of law, Defendant Abbott 

must be dismissed from this suit.

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As to Defendant Ken Paxton, Plaintiffs improperly rely on a general duty to enforce state 

law to establish he is a proper defendant, even though Fifth Circuit and Western District of Texas 

case law rejects such a principal. Plaintiffs also attempt to connect Defendant Paxton with 

enforcement of TEX. FAM.CODE § 45.103 by using past actions unrelated to this statute to establish 

a “habit,” even though such an argument was expressly rejected by the Fifth Circuit just last year.

For the reasons detailed in both Defendants’ Motion and as described below, Plaintiffs 

failed to establish both standing and an exception to Eleventh Amendment immunity, and their 

claims against Defendants must be dismissed.

II. PLAINTIFFS HAVE NOT MET THEIR BURDEN TO PREVENT DISMISSAL

In their Response, Plaintiffs concede that they may only proceed with their claims against 

Defendant Paxton if they can satisfy the requirements of Ex parte Young, which serves as an 

exception to Eleventh Amendment immunity that would otherwise bar Plaintiffs’ claims. They 

further concede that for the exception to apply, they must establish that Defendant Paxton is a 

proper defendant and has a sufficient connection to the enforcement of TEX. FAM. CODE § 45.103. 

However, Plaintiffs fail to provide adequate evidence to meet that burden and cannot, therefore 

establish subject-matter jurisdiction over Defendant Paxton.

First, Defendant Paxton does not concede that he is a proper defendant in this suit. Plaintiffs

admit that TEX. FAM. CODE § 45.103 does not specifically name the Attorney General as the state 

official or agency tasked with enforcing its provisions. Interestingly, Plaintiffs seem to argue that 

the Attorney General is the proper defendant because he has the authority to generally enforce 

state law while also arguing that a state court judge cannot be the proper defendant because he or 

she is tasked with enforcing all state laws. Plaintiffs cite to no authority for either of these 

contradictory positions. However, there is ample authority that a general duty to enforce state law 

is not sufficient to invoke Ex parte Young. See Starr v. County of El Paso, No. EP-09-CV-353-

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KC, 2010 WL 3122797, at *5 (W.D. Tex. Aug. 5, 2010) (citing Okpalobi v. Foster, 244 F.3d 405, 

419 (5th Cir. 2001) and McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010)). 

Additionally, even if he were a proper defendant, Plaintiffs fail to provide sufficient 

evidence that Defendant Paxton has sufficient connection to the enforcement of TEX. FAM. CODE

§ 45.103 to support application of Ex parte Young. Plaintiffs argue that their facts are different 

from those expressly rejected by the Fifth Circuit in City of Austin, a suit challenging TEX. LOCAL 

GOV. CODE § 250.007, a state law allowing landlords to reject federal vouchers. City of Austin v. 

Paxton, 943 F.3d 993, 996 (5th Cir. 2019). In City of Austin, the plaintiff relied on examples where 

the Attorney General had sued or intervened in suits brought against the City of Austin related to 

municipal ordinances and policies to support its claim that the Attorney General had a sufficient 

enforcement connection with § 250.007 to trigger Ex parte Young. Id. at 1001. Here, Plaintiffs 

argue that Defendant Paxton has intervened in state court cases involving the constitutionality of 

laws related to same-sex marriage and taken an interest in other cases that may have involved 

transgendered individuals but clearly did not involve Chapter 45 of the Texas Family Code. Just 

as the Fifth Circuit held in City of Austin, these “habits” as alleged by Plaintiffs are insufficient to 

show that Defendant Paxton “might similarly bring a proceeding to enforce the supremacy” of 

TEX. FAM. CODE § 45.103. City of Austin, 943 F.3d at 1000. 

Plaintiffs base their entire jurisdictional argument on meeting the requirements of Ex parte 

Young. However, as detailed in both the Motion to Dismiss and this Reply, Plaintiffs have failed 

to satisfy the requirements necessary to avail themselves of Ex parte Young. In fact, Plaintiffs have 

made no attempt in response to the Motion to Dismiss to 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. As these elements are “an 

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indispensable part” of Plaintiffs’ case for which they bear the burden to establish, Plaintiffs claims 

must be dismissed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

III. CONCLUSION

Plaintiffs’ claims against Defendants must be dismissed because Plaintiffs have failed to 

meet their burden to establish (1) standing to bring this suit against Defendants and (2) exception 

to immunity under the Eleventh Amendment under Ex parte Young. Therefore, Defendants 

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

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

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

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CERTIFICATE OF SERVICE

I hereby certify that on July 20, 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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