Weekly News Round Up Of The State’s Top Law Enforcement Officer – Texas Attorney General
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/.
WEEKLY NEWS ROUND-UP OF THE STATE’S
TOP LAW ENFORCEMENT OFFICER…
THE TEXAS ATTORNEY GENERAL
AG Paxton Leads Coalition Defending the Free Speech Rights of Arlene’s Flowers in the Washington State Supreme Court
AUSTIN – Texas Attorney General Ken Paxton and Arkansas Attorney General Leslie Rutledge led a 13-state coalition in filing an amicus brief with the Washington State Supreme Court defending the First Amendment rights of Washington floral design artist Barronelle Stutzman, the owner of Arlene’s Flowers.
The Washington State Supreme Court previously ruled that Stutzman must provide a custom floral arrangement for a same-sex wedding, even though it violated Stutzman’s deeply-held religious belief that marriage is between one man and one woman.
The case is back in the Washington Supreme Court after the Supreme Court of the United States vacated the ruling and instructed the Washington high court to reconsider its prior decision.
“The right to free speech and the free exercise of religion applies to all aspects of one’s life, not just at home or in a place of worship,” Attorney General Paxton said. “Artistic work is free speech. It is inherently expressive, and that has always received full First Amendment protection. A customized piece of art is not a public accommodation. Compelling individuals to accommodate or affirm actions contrary to their sincerely-held beliefs is as un-American as it is unconstitutional.”
Stutzman, a grandmother who served the couple who brought the lawsuit for years, had no objection to the purchase of pre-made arrangements for a wedding, but objected to creating a custom arrangement for a ceremony that violated her religious beliefs.
Stutzman also referred the couple to other florists, but is now forced to defend her right to decline creating a custom art piece for an event that contradicts her religious beliefs. She faces fines and legal fees estimated at $2 million, which could put her out of business.
Texas and Arkansas were joined in the friend-of-the-court brief by Alabama, Arizona, Idaho, Kentucky, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, South Dakota, and West Virginia.
View a copy of the brief here.
AG Paxton Joins 16-State Brief Defending Informed Consent and Respect for Unborn Life
AUSTIN – Joining a coalition of 16 states, Attorney General Ken Paxton today urged the U.S. Supreme Court to take up and ultimately overturn a lower court decision blocking an Indiana law requiring a woman seeking an abortion to have an ultrasound examination 18 hours before the procedure as part of an informed consent policy.
Last July, a panel of the 7th U.S. Circuit Court of Appeals ruled that the ultrasound provision of Indiana’s Dignity for the Unborn Act – signed into law by then-Governor Mike Pence in 2016 – imposes an undue burden on women seeking abortions. The American Civil Liberties Union and Planned Parenthood challenged the law.
In their brief, Attorney General Paxton and his counterparts pointed out that the U.S. Supreme Court has repeatedly affirmed a state’s ability to regulate the informed-consent process to ensure that patients can adequately assess the risks and consequences of the abortion procedure.
“Legislation enacted in Indiana, Texas and other states serves to protect life by ensuring that a woman seeking an abortion is fully informed when considering the devastating impact of such a life-ending decision,” Attorney General Paxton said. “We will fight any attempt to block these reasonable state laws that value and protect the health of the mother and the life of the unborn.”
In 2011, then-state Representative Paxton co-authored and passed House Bill 15, which requires an expectant mother to view a sonogram and hear her unborn child’s heartbeat prior to consenting to an abortion.
The Texas Sonogram Law was challenged and upheld in 2012 by the U.S. Court of Appeals for the 5th Circuit.
Approximately 26 states have laws requiring a physician to provide certain information to a patient when obtaining informed consent to perform an abortion procedure.
The U.S. Supreme Court has repeatedly affirmed a state’s ability to regulate the informed-consent process to ensure that patients can adequately assess the risks and consequences of the abortion procedure, rejecting First Amendment challenges to those laws.
Texas joined the friend-of-the-court brief with Louisiana, Alabama, Arkansas, Idaho, Kansas, Kentucky, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.
View a copy of the brief here.
AG Paxton Leads 13-State Coalition Brief to Defend Religious Freedom
AUSTIN – Leading a coalition of 13 states, Attorney General Ken Paxton filed a friend-of-the-court brief with the U.S. Court of Appeals for the 9th Circuit defending employers’ right to an exemption from government mandates that violate their deeply held religious beliefs.
Ruling last January on a lawsuit brought by the State of California, a U.S. District Court issued a preliminary injunction against a Trump administration rule that allowed the Little Sisters of the Poor and similar religious employers to claim a religious exemption from the Obama-era U.S. Health and Human Services’ (HHS) so-called contraceptive mandate.
The HHS mandate forces the Little Sisters to subsidize the provision of contraceptives to their employees, in violation of their religious beliefs. Failure to do so would subject such employers to millions of dollars in government fines.
In their friend-of-the-court brief, Attorney General Paxton and his counterparts demonstrate that federal agencies are required by law accommodate religious objectors when the agency imposes a substantial burden on religion.
The Obama-era contraceptive mandate violates the federal Religious Freedom Restoration Act (RFRA), which Congress passed in 1993 and President Clinton signed into law. RFRA ensures that interests in religious freedom are protected.
“Federal law requires the government to respect the closely-held religious beliefs of its citizens, but the Obama-era contraceptive mandate is an assault on rights of conscience and religious liberty,” Attorney General Paxton said. “The Trump administration rule granting a religious exemption does nothing but protect the Little Sisters and other religious employers from being forced to provide services that would violate their religious or moral convictions, as the law requires.”
The Little Sisters, a Pennsylvania-based group of Catholic nuns who care for the elderly poor, have waged a long legal battle against the Obamcare mandate all the way to the U.S. Supreme Court.
In 2016, the high court unanimously overturned lower court rulings against the Little Sisters and ordered the lower courts to allow the federal government time “to arrive at an approach going forward that accommodates the petitioners’ religious beliefs.”
But California and Pennsylvania are both challenging the Little Sisters’ religious exemption from the Obamacare mandate, and Attorney General Paxton filed a brief last month in the Pennsylvania case.
Texas was joined in the friend-of-the-court brief filed this week with the 9th Circuit by Alabama, Arkansas, Georgia, Idaho, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Utah, and West Virginia. View a copy of the brief here.
AG Paxton: Victory for Jack Phillips Is a Victory for Religious Liberty
AUSTIN – Today, the Colorado Civil Rights Commission abandoned the most recent charges against Jack Phillips, a devout Christian and the owner of Masterpiece Cakeshop.
The Commission was attempting to penalize Phillips for refusing to create a custom cake celebrating a gender transition, which violates his religious beliefs on gender and sexuality.
Those charges came in the wake of the high-profile Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, Phillips had refused to create a custom cake celebrating a same-sex marriage – again a violation of his Christian faith.
The Supreme Court resoundingly ruled in Phillips’ favor, pointing out that the commission had disparaged Phillips’ religious beliefs.
“History will remember the State of Colorado’s sustained and hateful targeting of Jack Phillips as a sad example of a state persecuting people of faith,” Attorney General Paxton said. “A good man lost six and a half years of his life because his perfectly reasonable views fell afoul of our cultural elites, whose rigid secular orthodoxy tolerates no dissent. Thankfully, his courage in the face of spiteful government harassment has demonstrated the resilience of the foundational constitutional guarantee of religious liberty.”
In September 2017, Attorney General Paxton led a 20-state coalition in filing an amicus brief with the Supreme Court in support of Phillips.
Notification of Opinion
REQUEST FOR OPINION RQ-0248-KP: Whether members of the Physician Health and Rehabilitation Advisory Committee are entitled to legal representation by the Office of the Attorney General and indemnification under the Civil Practice and Remedies Code
OPINION SUMMARY KP-0243: Members· of the Physician Health and Rehabilitation Advisory Committee serve in an advisory capacity and thus are not public officers.
Accordingly, a court would likely conclude that the members are not entitled to legal representation by the Office of the Attorney General and indemnification under Civil Practice and Remedies Code chapter 104.
Chapter 108 of the Civil Practice and Remedies Code establishes limits on the liability of public officials appointed to serve a governmental unit.
Under rules of statutory construction, a court would likely conclude that the Physician Health and Rehabilitation Advisory Committee members are public officials for purposes of the liability limits under chapter 108.
AG Paxton Applauds Court Ruling Declaring Unconstitutional a Texas Law that Requires Application of the Indian Child Welfare Act in Child Custody Proceedings
AUSTIN – Attorney General Ken Paxton today commended the 323rd Family District Court in Tarrant County after it held a Texas law requiring family law judges to apply the federal Indian Child Welfare Act (ICWA) in child custody proceedings involving Indian children is unconstitutional.
The case involves a non-Native American Texas married couple – Chad and Jennifer Brackeen – seeking to adopt their second Native American child.
Specifically, District Judge Alex Kim wrote that a Texas statute that requires application of ICWA instead of the Texas Family Code in Indian child custody proceedings violates the Texas Constitution.
The Texas Family Code provides that all cases of custody and adoption must focus on the best interest of the child, and prohibits racial discrimination in child custody cases.
However, ICWA – which Congress enacted – mandates differential treatment of children based on their race when those children are from federally recognized Native American tribes, regardless of whether the placement is in the best interest of the child.
“Today’s ruling further illustrates that ICWA unlawfully attempts to coerce state agencies and courts to carry out unconstitutional and illegal federal policy of deciding custody based on race – a convincing argument we’re eager to make before the U.S. Court of Appeals for the 5th Circuit on March 13,” Attorney General Paxton said. “I’m confident the 5th Circuit will ultimately uphold last year’s federal court decision that declared ICWA unconstitutional and discriminatory.”
In October 2017, Attorney General Paxton, acting on behalf of Texas, Indiana, and Louisiana, filed a federal lawsuit alongside the Brackeens challenging the constitutionality of ICWA.
In January 2019, Attorney General Paxton filed a friend-of-the-court brief in support of the Brackeens in Tarrant County District Court, arguing that ICWA is unconstitutional.
AG Paxton’s Child Exploitation Unit Arrests Sabine County Man for Promotion of Child Pornography
AUSTIN – Attorney General Ken Paxton today announced that the Child Exploitation Unit (CEU) of his office arrested 60-year-old John Max Walter, of Hemphill, Texas, on one count of promotion of child pornography, a second-degree felony.
A tip from a social media networking site to the National Center for Missing and Exploited Children (MCMEC) led CEU investigators to Walter, a former volunteer firefighter for the city of Hemphill.
During an interview, Walter admitted he uploaded an image of child pornography to his social media account and sent it to another user. A search of his home turned up digital devices that were taken for examination by the Digital Forensics Unit of the attorney general’s office.
Attorney General Paxton’s office works to protect children by using the latest technology to track down some of the most profoundly evil predators online.
The CEU proactively seeks out and arrests predators who commit crimes against children using technology and online sources. Attorney General Paxton urges all parents and teachers to become aware of the risks our children face on the internet and take steps to help ensure their children’s safety.
If you suspect someone is producing or downloading child pornography you can report it to NCMEC. For more information on cyber safety, please visit: https://texasattorneygeneral.gov/initiatives/cyber-safety/.
Notification of Opinion
REQUEST FOR OPINION RQ-0247-KP: Whether the Secretary of State is the “returning officer” under article III, subsection 13(a) of the Texas Constitution, and, if not, which officer serves in that role in a single-county legislative district
KP-0242 OPINION SUMMARY: Article III, subsection 13(a) of the Texas Constitution provides that when vacancies occur in the Legislature, the returning officer of the district in which such vacancy occurred possesses authority to order a special election if the Governor does not do so within a set time. Pursuant to section 67.007 of the Election Code, the county clerk prepares and submits election returns for a singlecounty legislative district and is therefore the returning officer for purposes of article III, subsection 13(a).
AG Paxton Announces Start of Wells Fargo Consumer Redress Review Program
AUSTIN – Attorney General Ken Paxton today announced the start of Wells Fargo’s consumer redress review program, which is a key requirement of the bank’s recent $575 million settlement with Texas, 49 other states and the District of Columbia over violations of consumer protection laws.
Under the program, aggrieved Wells Fargo customers can call the following phone numbers to have their inquiry or complaint reviewed by the bank’s escalation team for possible relief, provided they have not taken advantage of other remediation programs already in place:
- Unauthorized Accounts / Improper Retail Sales Practices: 844-931-2273
- Improper Renters and Life Insurance Referrals: 855-853-9638
- Force-Placed Collateral Protection Auto Insurance (“CPI”): 888-228-9735
- Guaranteed Asset/Auto Protection (“GAP”) Refunds: 844-860-6962
- Mortgage Interest Rate Lock Extension Fees: 866-385-5008
Eligibility requirements for Wells Fargo’s consumer redress review program and contact numbers for more information are available to consumers online at https://www.wellsfargo.com/commitment/redress. The bank will provide periodic reports to Texas and the other states about ongoing remediation efforts.
Between 2009 and 2016, Wells Fargo opened as many as 3.5 million bank accounts, transferred funds, filed credit card applications and issued debit cards without customers’ knowledge or consent. The bank disclosed that it found 528,000 unauthorized enrollments of customers in its online bill payment service.
In addition, Wells Fargo improperly referred customers for enrollment in third-party renters and life insurance policies; charged auto loan customers for insurance they did not need; failed to ensure that customers received refunds of unearned premiums on certain optional auto finance products; and incorrectly charged customers for mortgage rate-lock extension fees.
Texas’ share of the $575 million multistate settlement with Wells Fargo amounts to approximately $47 million. The agreement represents the most significant engagement involving a national bank by state attorneys general acting without a federal law enforcement partner.
View the multistate agreement with Wells Fargo here: https://portal.ct.gov/-/media/AG/Press_Releases/2018/20181228_WellsFargo_MultistateSettlement.pdf?la=en.
