Several recent decisions have addressed the Texas attorney general’s role in enforcing state statutes and whether plaintiffs challenging those statutes have standing to sue the attorney general.
The question of whether the attorney general is a proper party and may be sued has been addressed in three recent Fifth Circuit decisions as well as a decision by the Supreme Court of Texas. In the earliest Fifth Circuit case, Ostrewich v. Tatum, 72 F.4th 94 (5th Cir. 2023), plaintiffs filed a First Amendment challenge to several Texas laws limiting electioneering at polling places. They named the attorney general and the secretary of state, as well as several county officials. The lower court held that the attorney general could be sued under the exception to Eleventh Amendment immunity articulated by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908). Although Eleventh Amendment immunity prohibits suits against state officials or agencies that are in essence suits against a state, the Ex parte Young exception to this rule “allows private parties to bring suits for injunctive or declaratory relief against individual state officials,” but only if those officials have “some connection with the enforcement of the challenged act.” City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019).
The district court found that the plaintiff met this burden because there was no evidence that “the Attorney General will not prosecute violators in the future.” The court also held that the Attorney General had two specific statutory duties that require him to enforce the electioneering laws: Texas Election Code sections 273.001 (triggering an obligatory investigation by local authorities upon receipt of two or more complaints and permitting the Secretary to refer a complaint to the Attorney General for criminal investigation), and 273.021 (a) (permitting the Attorney General to prosecute election law offenses).
The Fifth Circuit overturned the district court, basing its decision on the Texas Court of Criminal Appeals decision in State v. Stephens, (described in an earlier Attorney General Journal article). In that case, the Court of Criminal Appeals held that section 273.021 (a) violated the separation of powers doctrine in the Texas Constitution because the attorney general has no independent authority to prosecute election-related criminal offenses and may only act with the permission of the local prosecutor. With respect to section 273.001, the attorney general is only authorized to “investigate” possible election law violations upon referral by the secretary of state. The Fifth Circuit concluded that the attorney general does not have the ability to “compel or constrain” local officials to enforce the electioneering laws, nor can he prosecute violators himself, so he is protected by Eleventh Amendment immunity and is not covered by the Ex parte Young exception.
The second decision, A & R Engineering and Testing v. Scott, 72 F.4th 685 (5th Cir. 2023), involved a municipal contract for engineering services which, under Texas law, must include an “anti-boycott” clause certifying that the party will not boycott Israel for the duration of the contract. The owner of an engineering firm, which had contracted with the city of Houston in prior years, boycotts Israel. The plaintiff filed a §1983 suit against Houston and against the Texas attorney general, including both as-applied and facial constitutional claims and seeking damages and injunctive relief.
The Fifth Circuit described the three-part test for standing. Plaintiff must show 1) it suffered an injury in fact; 2) that is “fairly traceable” to the defendant’s conduct and 3) can be redressed by a favorable decision. In this case, plaintiff has demonstrated injury in fact.
Turning to the “traceability” factor, the court held that the plaintiff’s injury was certainly traceable to the city of Houston. However, the injury is not traceable to the attorney general. Plaintiff did not show how the attorney general could interfere with the City’s contracts. The applicable Texas statute provides only a list of definitions and a list of requirements, but does not “expressly provide a way for the Attorney General to enforce those requirements.” Nor has the attorney general taken any action to enforce the provision, even if he had the authority to do so. Finally, the actions of the city “severed any link” between plaintiff’s injury and the attorney general. The city included the provision, but did not attribute its actions to any enforcement, actual or threatened, by the attorney general.
A third Fifth Circuit decision about whether the attorney general is a proper party is Consumer Data Industry Ass’n v. Texas, 2023 U.S. App. LEXIS 19007 (5th Cir. Jul. 25, 2023). This case involved a challenge to Tex. Bus. & Com. Code § 20.05(a)(5), which prohibits credit reporting agencies from including information regarding certain medical debt collection accounts in consumer credit reports that are furnished to third parties. The statute can be enforced by either the attorney general or by consumers. Both willful and negligent violations can result in damages for the consumer. The attorney general can obtain injunctive relief, civil penalties and attorneys’ fees. The trade association for credit reporting agencies sued the Texas attorney general, alleging that Section 20.05(a)(5) is preempted by the federal Fair Credit Reporting Act (FCRA) and seeking declaratory and injunctive relief. The attorney general moved to dismiss, arguing, among other things, that the plaintiffs had not suffered “injury in fact” and did not have standing and that the state is protected by sovereign immunity. The district court rejected the attorney general’s arguments on standing and sovereign immunity.
On appeal, the attorney general argued that the plaintiff’s assertion that the attorney general will enforce the statute is “purely speculative” and cannot be the basis for “injury in fact.” The attorney general noted that there have been no formal enforcement proceedings undertaken or threatened by the attorney general. The attorney general also argued that even if the attorney general were enjoined from enforcing the statute, plaintiff would still face consumer suits for damages, so injunctive relief would not provide redress.
The Fifth Circuit found that the attorney general has never announced any intention to enforce the statute or threatened the plaintiff or is members. On the other hand, the attorney general has not stated that the statute would not be enforced, and specifically did not make such a statement during this litigation. According to the Fifth Circuit, “This omission is telling.” The Fifth Circuit also noted that this statute was not an ancient enactment still on the statute books, but instead was enacted within the past five years. Finally, the court held that even if consumers could still enforce the act, the risk and liability for plaintiff’s members would still be reduced if the attorney general could not. The court held that these facts satisfied the test for injury in fact and also satisfied the test for the Ex parte Young exception to sovereign immunity. The Fifth Circuit affirmed the district court’s opinion on these points.
The Texas Supreme Court has also addressed the question of whether the attorney general may be sued by private parties. During the pandemic, several jurisdictions within Texas claimed independent authority to require masks in their jurisdictions in contravention of the Governor’s emergency orders prohibiting local mask mandates. Several local governments sued the Governor–and in some cases the Attorney General–to prevent enforcement of the governor’s emergency orders. In the course of determining that the actions of the local jurisdictions were preempted by the governor’s orders, the court examined the standing of the plaintiffs to sue the attorney general.
The court described the test for standing under Texas law as requiring “an injury-in-fact that is fairly traceable to the defendant’s conduct and likely to be redressed by a decision in the plaintiffs favor.” Where the plaintiff is seeking to enjoin enforcement of a statute, the injury may be demonstrated by “a credible threat of prosecution thereunder.” In this case, the attorney general had threatened civil actions against the plaintiffs for violating the Governor’s orders. The court found that
The Attorney General sent a letter to County Judge Hidalgo and the Harris County Commissioners Court threatening “legal action, including
any available injunctive relief, … penalties, sanctions-including contempt of court-available at law” in response to their violations of the
Governor’s prohibition on mask requirements. The Attorney General’s website confirms the initiation of at least nine such enforcement
actions against local governments.
The state did not contest these findings, and the court found that the county had standing to sue the attorney general in this case. Abbott v. Harris County, 672 S.W.3d 1 (Tex. 2023).