Texas AG Weekly Roundup: Warns County Judges, Local Officials On Unlawful Orders, Request Of Texas Supreme Court On Mail-In Voting

Staff Report

Texas Attorney General, Ken Paxton is the lawyer for the State of Texas and is charged by the Texas Constitution to:

• defend the laws and the Constitution of the State of Texas
• represent the State in litigation
• approve public bond issues

To fulfill these responsibilities, the Office of the Attorney General serves as legal counsel to all boards and agencies of state government, issues legal opinions when requested by the Governor, heads of state agencies, and other officials and agencies as provided by Texas statutes.

The Texas AG sits as an ex-officio member of state committees and commissions and defends challenges to state laws and suits against both state agencies and individual employees of the State.

Many Texans look to the Office of the Attorney General for guidance with disputes and legal issues. The agency receives hundreds of letters, phone calls, and visits each week about crime victims’ compensation, child support, abuse in nursing homes, possible consumer fraud, and other topics. To find out more about the Texas Attorney General, visit the official website at https://texasattorneygeneral.gov/.

AG Paxton Asks Texas Supreme Court to Order Election Officials Who Urged Voters to Submit Unlawful Mail-in Ballot Applications to Follow Texas Law

AUSTIN – Yesterday, Texas Attorney General Ken Paxton filed a petition with the Texas Supreme Court, requesting that the court compel the early-voting clerks for Dallas, Cameron, El Paso, Harris, and Travis Counties to follow Texas law on mail-in ballots.

Texas law generally requires in-person voting and allows mail balloting for certain limited groups, including those who are disabled. In violation of that requirement, officials in those counties are encouraging voters without actual disabilities to claim “disability” on their mail-in ballot applications.

“Each misapplication of Texas election law damages the integrity of our elections and increases the risk of voter fraud. In-person voting is the surest way to prevent voter fraud and guarantee that every voter is who they claim to be and has a fair opportunity to cast their vote,” said Attorney General Paxton. “It is unfortunate that certain county election officials have refused to perform their duties and have instead unlawfully gone beyond the Legislature’s determination of who is eligible to vote by mail. My office will continue to defend the integrity of Texas’s election laws.”

“Disability,” as that term is used in the Texas Election Code’s provisions allowing voting by mail, means a “sickness or physical condition” that prevents a voter from voting in person on election day without a likelihood of needing personal assistance or of injuring the voter’s health.

A voter ill with COVID-19 and who meets those requirements may apply for a ballot by mail.

Fear of contracting COVID-19, however, is a non-physical reaction to the current pandemic and does not amount to a sickness or physical condition that qualifies a voter to receive a ballot by mail.

Read a copy of the filing here.  

AG Paxton Warns County Judges and Local Officials on Unlawful COVID-19 Orders

AUSTIN – Attorney General Ken Paxton today issued letters to three Texas counties (Dallas, Bexar, and Travis) and two mayors (San Antonio and Austin), warning that some requirements in their local public health orders are unlawful and could confuse law-abiding citizens.

According to Paxton, the requirements include strict and unconstitutional demands for houses of worship, unnecessary and onerous restrictions on allowing essential services to operate, such as tracking customers who visit certain restaurants, penalties for not wearing masks, shelter-in-place demands, criminal penalties for violating state or local health orders, and failing to differentiate between recommendations and mandates.

“Unfortunately, a few Texas counties and cities seem to have confused recommendations with requirements and have grossly exceeded state law to impose their own will on private citizens and businesses. These letters seek to avoid any public confusion as we reopen the state,” said Attorney General Paxton. “I trust that local officials will act quickly to correct any orders that unlawfully conflict with Texas law and Governor Abbott’s Executive Orders.”

• Read the letter to Bexar County and the City of San Antonio here.
• Read the letter to Travis County and the City of Austin here.
• Read the letter to Dallas County here.

AG Paxton Joins Letter Urging Congress to Protect Businesses from Baseless Lawsuits as the Economy Reopens

AUSTIN – Attorney General Ken Paxton has joined a coalition of 21 attorneys general urging Congress to implement liability protections for businesses, manufacturers of personal protective equipment, first responders, healthcare workers, healthcare facilities, and members of law enforcement, among others.

The States also requested that those liability protections extend to all businesses and non-profit organizations that work in good faith to comply with guidance provided by government authorities as the nation’s economy begins to restart.

“The need for stable and predictable law has never been greater. A common-sense framework is necessary to provide liability protections as we restart our economy safely and appropriately in the midst of this health crisis,” said Attorney General Paxton. “Businesses need clearly defined expectations for safe operations, while also being protected from baseless COVID-related claims while operating in good faith. Criminal penalties, regulatory fines and agency oversight must be reserved to stop those who recklessly inflict harm, and civil lawsuits should be available for any citizens hurt by those actually acting with disregard for safety.”

Read a copy of the letter here.  

AG Paxton Files Brief Against the Expansion of Mail-In Voting

AUSTIN – Last week Texas Attorney General Ken Paxton filed a brief with the Court of Appeals for the Fourteenth Judicial District in Houston, “defending” the Texas Election Code requirements for submitting a mail-in ballot.

This brief follows an appeal filed last month, which automatically stayed a Travis County District Court order. According to Paxton, the District Court’s order misconstrues the Election Code which would allow anyone to vote by mail using specific protections intended to aid only those with true disabilities.

“The integrity of our election process must be maintained, and the law established by our Legislature must be followed consistently. Unlawful expansion of mail-in voting, which is a special protection made available to Texans with actual disabilities, will only serve to undermine the security of our elections and to facilitate fraud,” said Attorney General Paxton. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by state law. My office will continue to defend Texas’s election laws to ensure that our elections remain free, fair, and safe.”

Read a copy of the brief here.

AG Paxton Will Fight to Keep Convicted Child Murderer Rosa Jimenez  in Jail While Her Case Proceeds at the Fifth Circuit

AUSTIN – Attorney General Ken Paxton announced that he will not drop the appeal in convicted child murderer Rosa Jimenez’s case which is currently pending at the United States Court of Appeals for the Fifth Circuit. A jury previously found Jimenez guilty of murder and injury to a child.

The jury sentenced her to 75 and 99 years imprisonment respectively, and her convictions were unanimously upheld by the Texas Court of Criminal Appeals.

In January, the Fifth Circuit indicated that her convictions will likely be upheld on appeal. In her most recent filing, Jimenez argues that the potential to contract COVID-19 while imprisoned warrants her release during the appeal proceedings.

“As it stands, my office will not drop this appeal against a convicted child murderer, which three federal judges have already held is likely to succeed. There is no new evidence in this case, and a new trial can only commence at the direction of the higher courts already reviewing this horrific murder case,” said Attorney General Paxton. “The Texas Department of Criminal Justice has taken extensive steps to safeguard prisoners’ health, and my office will dutifully proceed with this case and uphold Texas’s criminal justice system and the rule of law.”

Read a copy of the filing here. 

Notification of Opinion

Official Request RQ-0352-KP
Whether a local governmental entity under an emergency declaration has the authority to prevent an owner of a second home from occupying that property or limiting occupancy of housing based on length of the occupancy’s term

Official Opinion KP-0308
The Texas and U.S. Constitutions prohibit governmental action that unlawfully discriminates on the basis of residence; thus, to the extent a local ordinance restricting access to or limiting occupancy of private property exceeds these boundaries, it is unconstitutional.

Notification of Opinion

Official Request RQ-0346-KP
Extension of driver’s license expiration dates due to COVID-19 and its effect on firearms purchases.

Official Opinion KP-0305
A Texas driver’s license that on its face lists an expiration date of March 13, 2020, or later is not expired under the Governor’s suspension of laws and related DPS guidance until 60 days after the DPS provides further public notice that normal driver’s license operations have resumed.

Notification of Opinion

Official Request RQ-0351-KP
Procedures for conducting appraisal review board hearings during the COVID-19 disaster.

Official Opinion KP-0307
Tax Code subsection 41.45(o) and 34 Texas Administrative Code subsection 9.805(d) do not allow appraisal review boards to require protest hearings to be conducted by videoconference in lieu of in-person hearings when requested by a property owner.

Notification of Opinion

Official Request RQ-0347-KP
Authority of a county judge to issue emergency orders regulating the business of pawnshops during a declared disaster

Official Opinion KP-0306
The Dallas County Judge does not have authority to regulate the operation of pawnshops during the COVID-19 disaster declaration.

Notification of Opinion

Official Request RQ-0342-KP
Whether, when operating under a local disaster declaration, local governments may commandeer private property under Government Code section 418.108

Official Opinion KP-0304
Government Code section 418.108 does not, by itself, authorize a county judge, a mayor of a municipality, or any other local government official to commandeer private property to respond to a disaster.

Notification of Opinion

Official Request RQ-0317-KP
Authority of a county sheriff to donate forfeiture funds under Code of Criminal Procedure article 59.06 to a nonprofit entity providing office space for mental health services, drug counseling services, and services for the victims of domestic abuse

Official Opinion KP-0303
A sheriff may donate Code of Criminal Procedure article 59.06 forfeiture funds to a county service center without violating Texas Constitution article III, section 52(a) if the donation serves a public purpose with sufficient controls to ensure accomplishment of the public purpose and will provide a return benefit to the public.

Notification of Opinion

Original Request RQ-0318-KP
Matters related to the Texas Windstorm Insurance Association and its compliance with House Bill 1900 and Senate Bill 615

Official Opinion KP-0302
When the Texas Windstorm Insurance Ass’n Board has provided requisite notice to member insurers about an assessment at a regularly-scheduled Board meeting, it is unlikely a court will require the Board to call an additional emergency meeting to provide the same notice. So long as the Board complies with its quorum requirement, Board vacancies do not impair its ability to take action.

Request for Opinion

Official Request RQ-0353-KP
Calculation of the minimum salary of a county court at law judge with twelve or more years of accrued service under section 25.0005(a) of the Government Code

Date Received
Monday, May 4, 2020

Official Requestor
Mr. Rakesh Pandey
Montgomery County Auditor
501 North Thompson, Suite 205
Conroe, Texas 77301