Texas Attorney General’s weekly roundup for September 20

Staff Report

The responsibilities, of the Office of the Attorney General, are to serve as legal counsel to all boards and agencies of state government, issue 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/.

Attorney General Paxton Joins 10-State Coalition to Regulate Big Tech Censorship

AUSTIN –  Attorney General Paxton led a 10-state coalition that filed an amicus brief in the 11th Circuit Court of Appeals in support of Florida’s law that regulates censorship on Big Tech platforms by requiring them to apply their content-moderation practices in a consistent manner and to provide disclosures to affected users.

The brief explains why relevant provisions of Florida’s law are fully compatible with the First Amendment, which guarantees Americans’ right to freedom of speech, expression, and political beliefs.

“The regulation of big tech censorship will inevitably suppress the ideas and beliefs of millions of Americans,” said Attorney General Ken Paxton. “I will defend the First Amendment and ensure that conservative voices have the right to be heard. Big Tech does not have the authority to police the expressions of people whose  political viewpoint they simply disagree with.”

Governor Abbott recently signed Texas’ House Bill 20 – similar to Florida’s law – in that it seeks to regulate “Big Tech.”

H.B. 20 allows any resident in Texas banned from social media for their political beliefs to sue the social media platform that censored them.

The attorney general would be able to sue on behalf of a Texas resident or residents that were banned or blocked by a platform due to discrimination based on their political views.

Read the full of Amicus Brief here.

Paxton Sues to Stop Biden Administration Attempt to Control Bathroom and Language Usage in Texas

AUSTIN – Attorney General Ken Paxton filed a lawsuit against the Biden Administration to stop the June 15 Guidance from the Equal Employment Opportunity Commission (EEOC).

This guidance requires employers to allow exceptions on the usage of bathrooms, locker rooms, showers, dress codes, and even personal pronouns based upon the subjective gender identities of their employees.

This unlawful guidance increases the scope of liability for all employers, including the State of Texas in its capacity as an employer.

Under our system, States have the sovereign right to enact their own policies regarding things such as bathroom usage, and this is an extreme federal overreach by the federal government.

“States should be able to choose protection of privacy for their employers over subjective views of gender, and this illegal guidance puts many women and children at risk,” Attorney General Paxton said. “If the Biden Administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change. These backdoor attempts to force businesses, including the State of Texas, to align with their beliefs is unacceptable.”

Read the lawsuit here. 

Pax­ton Joins Coali­tion to Chal­lenge Pres­i­dent Biden’s Over­reach­ing Vac­cine Man­date for Pri­vate Sec­tor Employees

AUSTIN – Attorney General Ken Paxton joined a multistate coalition to stop President Biden from unlawfully forcing millions of private sector employees to get a COVID-19 vaccine or submit to weekly testing as a condition of keeping their jobs – regardless of whether they work remotely, have religious objections or health concerns about receiving the vaccine, or have already obtained natural immunity as a result of having recovered from the virus.

The federal government, moreover, intends to compel this unprecedented and unconstitutional intrusion of federal authority into an area normally subject to state law by way of an “emergency temporary standard” to be issued as a matter of workplace safety by the Occupational Safety and Health Administration (OSHA) bureaucracy.

Courts have, historically, curtailed the use of such standards as violative of the constitutional separation of powers – even where, unlike here, the hazard arises in the employee’s place of work.

Read the letter here.

Notification of Opinion

Official Request Summary RQ-0425-KP
Re: Whether the Lone Star Infrastructure Protection Act prohibits a Texas transmission service provider from entering into interconnection agreements with entities owned by citizens of China or headquartered in China or with entities who lease assets from such an entity and related questions

Official Opinion Summary
The Lone Star Infrastructure Protection Act, found in chapter 113 of the Business and Commerce Code, prohibits contracts or other agreements with certain foreign-owned companies in certain circumstances in connection with critical infrastructure in this State.  Whether federal law separately implicates the ability of entities to enter into such contracts is a question of fact and not addressed by this opinion.

Under the Act, a generation interconnection agreement is an agreement relating to critical infrastructure that grants a company direct or remote access to or control of critical infrastructure.  Section 113.002 prohibits a generation interconnection agreement between a transmission service provider and a company that is a wholly or majority-owned subsidiary of a Chinese company.

Under the standard generation interconnection agreement promulgated by ERCOT, a company entering into the agreement with a transmission service provider must own and operate the proposed generation resource, and a lessee without an ownership interest would not satisfy such a requirement. 

A land lease agreement between a generation resource developer and a landowner could permit direct or remote access to or control of critical infrastructure such that it would be prohibited by the Act in the circumstances you describe.

Notification of Opinion

Official Request Summary RQ-0411-KP
Re: Whether House Bill 1525 requires school districts to accept PTA donations designated to fund supplemental educational staff positions and use funds donated for that purpose for the 2021–2022 school year.

Official Opinion Summary
Subsection 11.156(c) of the Education Code, as enacted by House Bill 1525, requires a school district to accept and spend a donation from a parent-teacher organization or association designated to fund a supplemental education staff position at a specified campus in specified circumstances. 

House Bill 1525 provides that subsection 11.156(c) is effective on September 1, 2021.  On or after that date, a school district has a duty to accept and spend certain donations once all of the specified conditions of subsection 11.156(c) have occurred, namely that (1) the donation derived from a parent-teacher organization or association recognized by the district, (2) the donation is designated to fund supplemental educational staff positions at a school campus, and (3) the campus has directed the expenditure for its designated purpose and has specified the time period within which the donation is to be spent.  Accordingly, House Bill 1525 requires a district to spend donations received for the 2021–2022 school year to the extent that the donations satisfy all conditions of subsection 11.156(c).

Notification of Opinion

Official Request Summary RQ-0429-KP
Re: Whether Executive Order GA-38 creates a right, privilege, power, or immunity with regard to Texans’ ability to not wear a face covering.

Official Opinion Summary
Executive Order GA-38 generally prohibits a governmental entity, including a county, city, school district, or public health authority, from requiring any person to wear a face covering or to mandate that another person wear a face covering. 

Section 39.03 of the Penal Code makes it an offense for a “public servant acting under color of his office or employment” to intentionally deny or impede “another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.” 

Executive Order GA-38 creates immunity for Texans to be free from enforcement of most local governmental mandates that require face coverings.

A court could find under certain facts that a governmental official intentionally denying that immunity to an individual by enforcing an unlawful face covering mandate is in violation of section 39.03 of the Penal Code.