Texas Wins Major Court Victory To End Unlawful Obama-Era “Waters Of The United States” Rule

“This critical federal court decision is a major victory for the people of Texas’ ability to regulate their own natural resources, including ponds, puddles and streams on private property, and a major win for property owners, whose land would have been subject to unlawful and impractical EPA regulations…”

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 Wins Major Court Victory to End Unlawful Obama-Era “Waters of the United States” Rule

AUSTIN – Attorney General Ken Paxton today announced that his office won a major court victory to hold unlawful the Obama-era Waters of the United States (WOTUS) rule, which attempted to expand the reach of the federal Clean Water Act in a way that would harm Texans and the Texas economy.

The U.S. District Court for the Southern District of Texas granted Texas’ motion for summary judgment in the case, sending the rule back to the Trump administration to proceed with repealing and replacing the WOTUS rule.

“This critical federal court decision is a major victory for the people of Texas’ ability to regulate their own natural resources, including ponds, puddles and streams on private property, and a major win for property owners, whose land would have been subject to unlawful and impractical EPA regulations,” Attorney General Paxton said. “I’m proud to have led a multistate coalition lawsuit challenging WOTUS. My office will always stand up for the rule of law and states’ rights.”

The district court previously enjoined the rule’s effect in Texas, Louisiana, and Mississippi—joining district courts in North Dakota and Georgia that also entered injunctions in 24 states before those courts—and this injunction will remain in place.

Last August, a district court in South Carolina overturned President Trump’s effort to delay the effectiveness of the WOTUS rule nationwide while the U.S. Environmental Protection Agency continues its efforts to prepare a replacement rule.

In 2015, Attorney General Paxton was part of a multistate coalition lawsuit that won a nationwide stay against WOTUS in the U.S. Court of Appeals for the 6th Circuit, preventing the federal government from taking control of ponds, streams and puddles of Texas property owners. The Supreme Court later overturned that injunction for procedural reasons

One of President Trump’s first actions in office was an executive order directing the EPA to begin the process of eliminating the WOTUS rule. At the time, he characterized the rule as “one of the worst examples of federal regulation.

View a copy of the U.S. District Court’s decision here.

AG Paxton Applauds SCOTUS Decision Upholding Indiana’s Law on the Humane Disposition of Fetal Remains

AUSTIN – Attorney General Ken Paxton today commended the U.S. Supreme Court after it issued a decision upholding Indiana’s law requiring the humane disposition of fetal remains. In overturning a lower court ruling, the Supreme Court held that a state has a “legitimate interest in proper disposal of fetal remains.”

Texas joined Wisconsin and 17 other states on a friend-of-the-court brief filed with the high court in the Indiana case. The brief was cited today by Supreme Court Justice Clarence Thomas in his concurrence.

“The U.S. Supreme Court has repeatedly recognized that states have an interest in the lives of the unborn. This latest ruling honors the dignity of the unborn and prevents fetal remains from being treated as medical waste,” Attorney General Paxton said. “My office is awaiting oral argument in our state’s own fetal remains case. We look forward to demonstrating that Texas’ law is constitutional and does not impact the abortion procedure or the availability of abortion in Texas.”

In 2017, the Texas Legislature passed Senate Bill 8, which, among other things, prohibits health care providers from disposing of fetal remains in sewers or landfills and instead requires their remains to be treated in more dignified fashion such as burial, cremation, or the spreading of ashes. Previous law permitted fetal remains to be discharged into a sewer system or incinerated and sent to a landfill. Last September, a U.S. District Court issued an injunction blocking the law.

View today’s U.S. Supreme Court decision here: https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf.

AG Paxton Files Bi-Partisan Brief in Support of Pro-Life Louisiana Laws

AUSTIN – Attorney General Ken Paxton, along with Mississippi Attorney General Jim Hood, today filed a bi-partisan friend-of-the-court brief in support of Louisiana’s claim that a U.S. District Court incorrectly denied Louisiana’s motion to dismiss claims in an ongoing lawsuit challenging the constitutionality of dozens of Louisiana pro-life laws regulating abortion clinics and doctors, including laws setting health and safety standards, staffing requirements, and informed-consent measures.

Texas and Mississippi are currently engaged in similar lawsuits. In Texas, abortion providers filed a lawsuit challenging the majority of Texas laws governing abortion, claiming that the laws unconstitutionally burden their patients.

The challenged laws include basic health and safety standards; a requirement that doctors perform abortions; a 24-hour waiting period; informed-consent measures, including an ultrasound requirement, that ensure patients have all of the information they need when making their decisions; regulations on the use of medications to induce abortions; and laws governing the judicial-bypass process for minors who seek abortions without parental notice or consent. Many of these laws have previously been upheld by the Supreme Court or Fifth Circuit.

In Mississippi, abortion providers challenged numerous Mississippi laws regarding abortion clinics and physicians – including Mississippi’s facility-licensing requirements, 24-hour waiting period law, informed-consent laws, and restrictions on non-physicians performing abortions.

“These pro-life laws are specifically designed to protect women’s health and ensure the medical professionals involved in abortions are licensed and able to provide necessary care,” said Attorney General Paxton. “The nation saw what happens when abortion clinics are not regulated in the case of Kermit Gosnell, who killed and injured women in his substandard, filthy, and unregulated clinic. Louisiana’s pro-life laws are not only constitutional, they protect women’s health and safety. These laws are constitutional, and the writ of mandamus Louisiana requested should be granted.”

View a copy of the brief here.

HHS Proposes Rule that Would Protect Healthcare Conscience Rights, and Undo Unlawful Obamacare Rule that Texas Successfully Challenged

AUSTIN – Today, the Trump administration opened the public comment period on its potential repeal of an unlawful Obama-era health care regulation that redefined sex discrimination to include gender identity and abortion.

Texas obtained an order from a federal court in 2016 enjoining the regulation. The new proposed rule announced today by the U.S. Department of Health and Human Services would allow medical providers to operate in accord with their conscience, their best medical judgment, and the Hippocratic Oath.

In announcing the new rule, HHS pointed to the injunction obtained by Texas demonstrating that the prior Obama-era rule is “likely unlawful.”

Obamacare contains a provision prohibiting sex discrimination in the provision of federally funded healthcare. The Obama administration’s regulation – which the proposed rule announced today would repeal – interpreted “sex” to include gender identity and abortion.

The effect was to force federally funded doctors, health care providers, and state employers who provide insurance to violate their religious and ethical judgment by providing sex change surgeries and abortions.

In August 2016, Texas Attorney General Ken Paxton led a multi-state lawsuit against the rule and obtained a nationwide preliminary injunction against its enforcement in 2016. In February 2019, he urged the court to issue a summary judgment declaring the rule unlawful, so it can be wiped permanently from the Code of Federal Regulations.

In April 2019, HHS filed a brief agreeing the rule is unlawful. Today’s decision to repeal the rule highlights the need for the court to provide a permanent injunction against its enforcement.

“The Obama administration’s rule was a transparent attempt to impose a radical redefinition of sex and gender by bureaucratic fiat,” Attorney General Paxton said. “The proposal to return to the time-honored and scientifically rigorous definition of the word ‘sex’ represents an admirable respect for the rule of law. It is welcome news for those in the health care industry with moral, religious, and medical objections to sex change surgery and abortion. Meanwhile, my office continues to push the courts to ensure that a future president can never again sacrifice providers’ conscience rights and best medical judgment to progressive social engineering.”

States that failed to comply with the Obama administration’s rule ran the risk of losing health care funding and exposed themselves to lawsuits.

Even the partial loss of health care funding in Texas would fall disproportionately on vulnerable citizens who participate in Medicare and Medicaid.

AG Paxton to Congress: States Need Clear-Cut Authority to Enforce Their Criminal Laws Against Illegal Activity Online

AUSTIN – Attorney General Ken Paxton, along with a bipartisan group of 46 fellow attorneys general, urged congressional leaders in Washington to amend the Communications Decency Act of 1996 to make certain that state and local authorities have the authority to investigate and prosecute criminal activity online.

Congress did amend the Communications Decency Act last year, passing the Stop Enabling Sex Traffickers Act and the Allow States and Victims to Fight Online Sex Trafficking Act (known as FOSTA-SESTA). Among other things, the measures provide state prosecutors greater authority to take legal action against websites that host sex-trafficking ads, and make it easier for trafficking victims to file lawsuits.

In today’s letter to congressional leaders, Attorney General Paxton and his counterparts applauded the passage of FOSTA-SESTA, but noted that criminal activity online does not stop at sex trafficking. They urged support for another amendment to the Communications Decency Act, which this time would allow the states to enforce their criminal laws against companies that provide platforms for such illegal activities as online black market opioid sales, ID theft and election meddling.

“Addressing criminal activity cannot be relegated to federal enforcement alone simply because the activity occurs online,” Attorney General Paxton wrote. “The authorities in our states must be allowed to address these crimes themselves and fulfill our primary mandate to protect our citizens and enforce their rights.”

Some federal court opinions have interpreted the Communications Decency Act so broadly that the perverse result has been to protect individuals and services that knowingly aid and profit from illegal activity online at the expense of the victims for whom the protection was intended.

“In its passage of FOSTA-SESTA, Congress understood that the immense challenges presented by sex trafficking on the internet must be shared by federal and state authorities,” the letter stated. “The increasing challenges presented by profiteers of the many other criminal enterprises online require the same level of investigation and prosecution that can only come from state and local resources.”

The letter was sent to Chairman Jerrold Nadler and Ranking Member Doug Collins of the House Committee on the Judiciary, Chairman Lindsey Graham and Ranking Member Dianne Feinstein of the Senate Committee on the Judiciary, Chairman Frank Pallone, Jr. and Ranking Member Greg Walden of the House Committee on Energy, and Chairman Roger Wicker and Ranking Member Maria Cantwell of the Senate Committee on Commerce, Science, and Transportation.

View a copy of the letter here.

Notification of Opinion

Original Request for Opinion RQ-0269-KP: Authority of municipalities to regulate firearm and ammunition sales through zoning and other regulations.

Opinion Summary KP-0252: Subsection 229.00I(a)(l) of the Local Government Code prohibits a municipality from regulating the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies.

Subsection 229.001(b)(3) excepts from this prohibition a municipality’s regulation on the use of property or businesses and the location of businesses as long as the regulation does not circumvent the intent of subsection (a)(l). A regulation that expressly prohibits gun stores from operating in a specific area relates to the transfer of firearms and is prohibited by subsection 229.00I(a)(l). Similarly, an ordinance singling out firearm and ammunition sales relates to the transfer of firearms and is therefore prohibited.

A court would likely conclude subsection 229.00I(a)(l)’s prohibition encompasses any one or more of the listed items. To the extent a municipality regulates firearm transfers but not also licensing, registration, or transportation of firearms, it acts contrary to subsection 229.00l(a)(l).

A violation of section 229.001 may be enforced by the Attorney General. Any plaintiff with standing under the Texas Constitution or the U.S. Constitution could bring an action seeking declaratory or injunctive relief against enforcement of an unconstitutional ordinance.

Individual city council members who voted on a zoning provision that is ultimately found to violate section 229.001 or the Texas or the U.S. Constitution would likely be immune from personal liability.

Notification of Opinion

Original Request for Opinion – RQ-0285-KP: Availability of civil remedies for violations of the Texas Open Meetings Act (RQ-0285-KP)

Opinion Summary KP-0254: If a quorum of a governmental body deliberates about public business within the jurisdiction of the body outside of a meeting authorized by the Texas Open Meetings Act, through multiple communications each involving fewer than a quorum, the governmental body violates the Act.

Action taken by a governmental body in violation of the Act is voidable. In addition, any interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act by members of a governmental body.

If the Texas Education Agency conducts an investigation as authorized by section 39.057 of the Education Code and concludes that members of a school district board of trustees violated their duty to comply with the Act, it could take appropriate civil action authorized by subsection 39.057(d) of the Education Code.

Notification of Opinion

Original Request RQ-0281-KP: Whether the Texas Transportation Commission is authorized to enter into a facility agreement under the North Tarrant Express Comprehensive Development Agreement (RQ-0281-KP).

Opinion Summary KP-02530: By operation of section 223.2012(b) of the Transportation Code, the Legislature granted the Department of Transportation authority to enter into facility agreements under the North Tarrant Express Comprehensive Development Agreement when the Department considers it advantageous to do so.A court would likely conclude that the Department may use a change order to expand the scope of work within a facility agreement as long as that work is encompassed in the scope of work under the comprehensive development agreement.

Pursuant to subsection 223.2012(c) of the Transportation Code, the Legislature does not require the Department. to use a competitive procurement process to enter into a facility agreement with the developer or an entity controlled by, to be controlled by, or to be under common control with the developer under the comprehensive development agreement for the North Tarrant Express project.

Current Grants Available From the Texas Attorney General’s Office

 

  • Office of the Attorney General (OAG) Choose Life Grant Applications

This e-mail contains general information about the Fiscal Years (FY) 2020-2021 Office of the Attorney General (OAG) Choose Life grant cycle including important information about the upcoming application process, timeline and requirements.

Timeline

  • May 24, 2019 – Request for Applications (RFAs), the Application Kit and On-line registration will be posted and available for the Choose Life grant opportunity.
  • June 4, 2019 – OAG strongly encourages Applicants to register by this date in order to have sufficient time to complete the application.
  • June 21, 2019 – Due date for application submission via Grant Offering and Application Lifecycle System (GOALS).  Specific submission instructions are in the Application Kit.
  • August 2019 – OAG plans to notify Applicants of its decision regarding a grant award.

Applicant Registration – MANDATORY

  • All applicants are required to register on-line in order to apply for funding.
  • In order to register, an Applicant must designate one person as their point of contact to submit their grant application.
  • To create an on-line account the applicant must email the point of contact information to Grants@oag.texas.gov with the following information:
    • First Name
    • Last Name
    • Email Address
    • Organization Legal Name
  • The point of contact will receive a welcome email from GOALS and will be prompted to create a password.
  • **Registration is mandatory.  Applicants who fail to complete the on-line registration will not be considered for funding. **

The OAG strongly encourages potential applicants to read the Application Kit and the GOALS Guide prior to beginning the application process. These documents can be found: https://www.texasattorneygeneral.gov/divisions/grants.

If you have any questions about the application process, email

Grants@oag.texas.gov or call (512) 936-0792. 

Please continue to check the OAG Grants website where the Application Kit and Registration process will be available. 

We also encourage you to share these updates and the OAG website https://www.texasattorneygeneral.gov/divisions/grants with other organizations that may be interested in applying for OAG grant funds.

 

  • Office of the Attorney General (OAG) Domestic Violence High Risk Teams Grant Program Applications

This e-mail contains general information about the Fiscal Years (FY) 2020-2021 Office of the Attorney General (OAG) Domestic Violence High Risk Teams Grant Program grant cycle including important information about the upcoming application process, timeline and requirements.

Timeline

  • May 24, 2019 – Request for Applications (RFAs), the Application Kit and On-line registration will be posted and available for the Domestic Violence High Risk Teams Grant Program grant opportunity.
  • June 4, 2019 – OAG strongly encourages Applicants to register by this date in order to have sufficient time to complete the application.
  • June 21, 2019 – Due date for application submission via Grant Offering and Application Lifecycle System (GOALS).  Specific submission instructions are in the Application Kit.
  • August 2019 – OAG plans to notify Applicants of its decision regarding a grant award.

Applicant Registration – MANDATORY

  • All applicants are required to register on-line in order to apply for funding.
  • In order to register, an Applicant must designate one person as their point of contact to submit their grant application.
  • To create an on-line account the applicant must email the point of contact information to Grants@oag.texas.gov with the following information:
    • First Name
    • Last Name
    • Email Address
    • Organization Legal Name
  • The point of contact will receive a welcome email from GOALS and will be prompted to create a password.
  • **Registration is mandatory.  Applicants who fail to complete the on-line registration will not be considered for funding. **

The OAG strongly encourages potential applicants to read the Application Kit and the GOALS Guide prior to beginning the application process. These documents can be found: https://www.texasattorneygeneral.gov/divisions/grants.

If you have any questions about the application process, email

Grants@oag.texas.gov or call (512) 936-0792. 

Please continue to check the OAG Grants website where the Application Kit and Registration process will be available. 

We also encourage you to share these updates and the OAG website https://www.texasattorneygeneral.gov/divisions/grants with other organizations that may be interested in applying for OAG grant funds.

 

  • Domestic Violence High Risk Teams Grant Program Applications

This e-mail contains general information about the Fiscal Years (FY) 2020-2021 Office of the Attorney General (OAG) Sexual Assault Services Program Grant cycle including important information about the upcoming application process, timeline and requirements.

Timeline

  • May 24, 2019 – Request for Applications (RFAs), the Application Kit and On-line registration will be posted and available for the Sexual Assault Services Program Grant opportunity.
  • June 4, 2019 – OAG strongly encourages Applicants to register by this date in order to have sufficient time to complete the application.
  • June 21, 2019 – Due date for application submission via Grant Offering and Application Lifecycle System (GOALS).  Specific submission instructions are in the Application Kit.
  • August 2019 – OAG plans to notify Applicants of its decision regarding a grant award.

Applicant Registration – MANDATORY

  • All applicants are required to register on-line in order to apply for funding.
  • In order to register, an Applicant must designate one person as their point of contact to submit their grant application.
  • To create an on-line account the applicant must email the point of contact information to Grants@oag.texas.gov with the following information:
    • First Name
    • Last Name
    • Email Address
    • Organization Legal Name
  • The point of contact will receive a welcome email from GOALS and will be prompted to create a password.
  • **Registration is mandatory.  Applicants who fail to complete the on-line registration will not be considered for funding. **

The OAG strongly encourages potential applicants to read the Application Kit and the GOALS Guide prior to beginning the application process. These documents can be found: https://www.texasattorneygeneral.gov/divisions/grants.

If you have any questions about the application process, email

Grants@oag.texas.gov or call (512) 936-0792. 

Please continue to check the OAG Grants website where the Application Kit and Registration process will be available. 

We also encourage you to share these updates and the OAG website https://www.texasattorneygeneral.gov/divisions/grants with other organizations that may be interested in applying for OAG grant funds.

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