IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

LINDA JANN LEWIS; MADISON LEE; 

ELLEN SWEETS; BENNY ALEXANDER; 

GEORGE MORGAN; VOTO LATINO; 

TEXAS STATE CONFERENCE OF THE 

NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE; 

and TEXAS ALLIANCE FOR RETIRED 

AMERICANS,

Plaintiffs, 

v.

RUTH HUGHS, in her official capacity as 

the Texas Secretary of State,

Defendant.

 CIVIL ACTION NO. 5:20-cv-00577-OLG

SECRETARY HUGHS’S ADVISORY REGARDING INTERLOCUTORY APPEAL

Secretary Hughs files this advisory providing notice that her interlocutory appeal of this 

Court’s denial of its motion to dismiss based on sovereign immunity was filed on August 7, 2020. The 

Secretary respectfully advises the Court of her position that the pending appeal has served to stay all 

proceedings in this matter. 

Plaintiffs brought this lawsuit against the Secretary challenging four provisions of the Election 

Code governing mail-in voting in Texas on May 11, 2020. [ECF No. 1]. Secretary Hughs filed her

Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,

on June 3, 2020, arguing in part that sovereign immunity bars Plaintiffs’ claims because the Secretary 

does not enforce the laws being challenged. [ECF No. 17 at 2-4]. In her motion, Secretary Hughs 

asserted she is protected by sovereign immunity from any cause of action arising out of the conduct 

described in Plaintiffs’ Complaint. [ECF No. 17]. On July 8, 2020 the Court issued an order setting 

Case 5:20-cv-00577-OLG Document 33 Filed 08/10/20 Page 1 of 5
2 

scheduling deadlines to govern the preliminary injunction proceedings. On July 28, 2020, the Court 

issued a Memorandum Opinion and Order denying Defendant’s motion and specifically rejecting 

Secretary Hughs’s arguments as to sovereign immunity. [ECF No. 31]. Secretary Hughs filed a Notice 

of Interlocutory Appeal on August 7, 2020. [ECF No 32]. 

The filing of the notice of appeal acts to immediately divest this Court of jurisdiction to 

proceed against the Secretary. See Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985) (immunity, whether 

qualified or absolute, “is effectively lost” if a case is erroneously permitted to proceed at the district 

court level while an interlocutory appeal of a denial of immunity is pending); Griggs v. Provident Consumer 

Discount Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of appeal is an event of jurisdictional 

significance—it confers jurisdiction on the court of appeals and divests the district court of its control 

over those aspects of the case involved in the appeal.”). “[N]otice of interlocutory appeal following a 

district court’s denial of a defendant’s immunity defense divests the district court of jurisdiction to 

proceed against that defendant.” Williams v. Brooks, 996 F.2d 728, 730 (5th Cir. 1993) (per curiam); see 

also Wooten v. Roach, 964 F.3d 395, 412 (5th Cir. 2020). Because Secretary Hughs has asserted that she 

is immune from all of Plaintiffs’ claims, the entirety of this matter is now before the Fifth Circuit for 

review. 

The Secretary’s appeal presents a critically important question that has not been resolved by 

the Fifth Circuit: Whether and, if so, to what extent, Ex parte Young’s exception to sovereign immunity 

permits a lawsuit against the Texas Secretary of State raising an as-applied challenge to a provision of 

the Election Code that is enforced by local officials. The Fifth Circuit did not consider that question 

in OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017). There, the Court reached a conclusion 

about standing to bring a facial challenge under the Voting Rights Act: “The facial invalidity of a Texas 

election statute is, without question, fairly traceable to and redressable by the State itself and its 

Secretary of State, who serves as the ‘chief election officer of the state.’” Id. at 613. The Court pointedly 

Case 5:20-cv-00577-OLG Document 33 Filed 08/10/20 Page 2 of 5
3 

declined to address sovereign immunity, however, id. at 614 (“Sovereign immunity has no role to play 

here.”), because it concluded that the State’s immunity had been validly abrogated by the Voting Rights 

Act, id.

The Fifth Circuit recognized, but did not resolve, this open question of sovereign immunity 

when it granted a stay pending appeal in Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020). 

There, the Court explained that the exception to sovereign immunity under Ex parte Young, 209 U.S. 

123 (1908), permits suit against state officials only if they “have ‘some connection’ to the state law’s 

enforcement.” 961.F.3d at 400 (quoting Air Evac EMS, Inc. v. Tex. Dep’t of Ins., 851 F.3d 507, 517 (5th 

Cir. 2017)). But the Court expressly noted that “[t]he precise scope of the ‘some connection’ 

requirement is still unsettled.” Id. at 400; see also id. at 400 n.21 (commenting that “[o]ur decisions are 

not a model of clarity on what ‘constitutes a sufficient connection to enforcement’” (quoting City of 

Austin v. Paxton, 943 F.3d 993, 999 (5th Cir. 2019))). The Court considered it settled “that it is not 

enough that the official have a ‘general duty to see that the laws of the state are implemented,’” id. at 

400–01 (quoting Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014), and that “a mere connection to 

a law’s enforcement is not sufficient—the state officials must have taken some step to enforce,” id. at 

401. Yet the Court found no settled answer to the question of “how big a step” toward enforcement 

is sufficient. Id. at 401. Referring to OCA-Greater Houston, the Court stated only that “our precedent 

suggests that the Secretary of State bears a sufficient connection to the enforcement of the Texas 

Election Code’s vote-by-mail provisions to support standing,” which “in turn, suggests that Young is 

satisfied as to the Secretary of State.” Id. at 401 (citing OCA-Greater Houston, 867 F.3d at 613) (emphasis 

added). 

Given the admitted lack of clarity in Fifth Circuit precedent regarding the application of Ex 

parte Young, the Secretary has more than a colorable basis to appeal this Court’s order denying her 

motion to dismiss based on sovereign immunity. Assuming for purposes of argument that OCACase 5:20-cv-00577-OLG Document 33 Filed 08/10/20 Page 3 of 5
4 

Greater Houston was correctly decided in the context of a facial challenge, the Secretary maintains that 

its reasoning does not control in this lawsuit. In the unlikely event that a panel of the Fifth Circuit 

might disagree with the Secretary’s position on plenary review, the question of OCA-Greater Houston’s 

application to this case—and the validity of OCA-Greater Houston itself—would be ripe for review by 

the en banc Court. 

Because the Secretary asserted sovereign immunity against all of Plaintiffs’ claims and because 

those critical issues are now the subject of the Secretary’s pending appeal, she respectfully advises the 

Court of her position that the notice of appeal has divested it of jurisdiction in this matter. Plaintiffs 

have advised that they intend to continue with discovery, even though Secretary Hughs advised 

Plaintiffs that proceedings in this Court, including all discovery matters, cannot continue until the 

appeal is resolved. To avoid any doubt on this point, Defendant respectfully requests that the Court 

issue an order making clear that it lacks jurisdiction while this matter is pending on appeal. If the Court 

believes that it retains jurisdiction, Defendant respectfully requests an order stating the Court’s 

understanding. Further, the Defendant stands ready to appear at status conference should the Court 

wish to discuss this matter. 

Case 5:20-cv-00577-OLG Document 33 Filed 08/10/20 Page 4 of 5
5 

Date: August 10, 2020 Respectfully submitted. 

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

RYAN L. BANGERT

Deputy First Assistant Attorney General

/s/Patrick K. Sweeten 

PATRICK K. SWEETEN

Associate Deputy for Special Litigation

TODD LAWRENCE DISHER

Deputy Chief, Special Litigation Unit 

WILLIAM T. THOMPSON

Special Counsel

MICHAEL R. ABRAMS

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC-009)

Austin, Texas 78711-2548

Tel.: (512) 936-1414

Fax: (512) 936-0545

patrick.sweeten@oag.texas.gov

todd.disher@oag.texas.gov

will.thompson@oag.texas.gov 

michael.abrams@oag.texas.gov

COUNSEL FOR THE TEXAS SECRETARY OF 

STATE

CERTIFICATE OF SERVICE

I certify that a true and accurate copy of the foregoing document was filed electronically (via 

CM/ECF) on August 10, 2020, and that all counsel of record were served by CM/ECF.

/s/Patrick K. Sweeten 

PATRICK K. SWEETEN

Case 5:20-cv-00577-OLG Document 33 Filed 08/10/20 Page 5 of 5