Supreme Court of Texas

“ It’s an argument that yields more questions than answers. The parenthetical the States cite is a “curious” provision, one that “does not appear to have an analogue elsewhere in the United States Code.” Biden v. Texas, 597 U. S. ___, ___ (2022) (Barrett, J., dissenting) (slip op., at 4) . Even assuming it permits this Court to award an injunction when a case comes to us on review, it does not obviously solve the States’ redressability problem. Normally, after all, a plaintiff must establish redressability from the outset of the suit. ”

“ Unquestionably it is a fundamental principle that no man shall be judge in his own case, and the constitution of Texas forbids any judge to sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity within such degree as may be prescribed by law, or where he shall have been counsel in the case; and specific provision is made for commissioning persons to hear and determine any case or cases in place of members of the supreme court or appellate court, who may be therein thus disqualified. ”

“ It further stated that DHS “personnel should not rely on the fact of [a qualifying] conviction” when exercising “prosecutorial discretion.” Id., at 115. Thus, the Final Memorandum did not simply permit deviations from the statutory mandates; it flatly contradicted those mandates by stating that qualifying convictions were insufficient grounds for initiating arrest, detention, and removal.
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Texas and Louisiana challenged this Final Memorandum in federal court under the Administrative Procedure Act (APA) . ”

“ Among other errors assigned is the failure of the supreme court of Texas to give effect to the defense setting up the statute of New Mexico as a full defense to the action. While the supreme court of Texas in its opinion conceded that, if the territorial act of New Mexico alone controlled the action, the plaintiff must fail for noncompliance with its requirements, it reversed the judgment of the court of civil appeals, and affirmed the judgment of the district court, because, in its opinion, the liability was controlled by the employers' liability act. ”

“ The Court charts a different path. In its view, this case can be resolved based on what it calls the “fundamental Article III principle” that “ ‘a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.’ ” Ante, at 1 (quoting Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973) ) . In other words, the Court says, the States have not asserted a “ ‘judicially cognizable interest’ ” in this case. ”

“ When a federal statute applies on its face to both private and state actors, a commandeering argument is a heavy lift—and petitioners have not pulled it off. Both state and private actors initiate involuntary proceedings. And, if there is a core of involuntary proceedings committed exclusively to the sovereign, Texas neither identifies its contours nor explains what §1912 (d) requires of a State in that context. Petitioners have therefore failed to show that the “active efforts” requirement commands the States to deploy their executive or legislative power to implement federal Indian policy. ”

“ Under these circumstances, where the mere “commencement of a suit,” and in fact just the threat of it, is the “actionable injury to another,” the principles underlying Young authorize relief against the court officials who play an essential role in that scheme. Id., at 153. Any novelty in this remedy is a direct result of the novelty of Texas’s scheme. ”

“ No person shall be eligible to serve in the office of Chief Justice or Justice of the Supreme Court unless the person: (1) is licensed to practice law in the State of Texas; (2) is, at the time of election, a citizen of the United States and a resident of the State of Texas ”

“ The Court’s delay in allowing this case to proceed has had catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas. These consequences have only rewarded the State’s effort at nullification. Worse, by foreclosing suit against state-court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree. ”

“ Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review. To cite just a few, the law authorizes “ [a] ny person,” other than a government official, to bring a lawsuit against anyone who “aids or abets,” or intends to aid or abet, an abortion performed after roughly six weeks; has special preclusion rules that allow multiple lawsuits concerning a single abortion; and contains broad venue provisions that allow lawsuits to be brought in any of Texas’s 254 far flung counties, no matter where the abortion took place. ”

“ But the Texas Supreme Court has held that because petitioner is, in fact, confined in a federal prison, the State is totally absolved from any duty at all under the constitutional guarantee. We cannot agree.
The historic origins of the Sixth Amendment right to a speedy trial were traced in some detail by The Chief Justice in his opinion for the Court in Klopfer, supra, 386 U.S., at 223-226, 87 S.Ct., at 993-995, and we need not review that history again here. ”

“ Texas Rule of Civil Procedure 24 directs state-court clerks to accept complaints and record case numbers. The petitioners have pointed to nothing in Texas law that permits clerks to pass on the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits. Nor does Article III confer on federal judges some “amorphous” power to supervise “the operations of government” and reimagine from the ground up the job description of Texas state-court clerks. ”

“ The Texas Supreme Court, however, refused to accept § 94 as prohibiting a suit against petitioners in Travis County when a state venue statute expressly permitted it. 161 Tex. 349, 341 S.W.2d 161. On the one hand, the court interpreted § 94 as permissive only, not mandatory, and on the other, as having been repealed by an omnibus repealing clause in an 1882 statute [2] subsequently absorbed into 28 U.S.C. § 1348. [3] Appellants brought the cases here under 28 U.S.C. § 1257 (2) and, because of the finality question, we postponed ruling upon our jurisdiction until the merits were considered. ”

“ The Constitution and federal immigration laws have taken away most of that power, but the statutory provisions at issue in this case afford the State at least some protection—in particular by preventing the State and its residents from bearing the costs, financial and non-financial, inflicted by the release of certain dangerous criminal aliens. Our law on standing should not deprive the State of even that modest protection. We should not treat Texas less favorably than Massachusetts. ”

“ The supreme court shall have appellate jurisdiction only, which shall be coextensive with the limits of the State; but in criminal cases, and in appeals from interlocutory judgments, with such exceptions and under such regulations as the legislature shall make; and the supreme court and judges thereof shall have power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, may issue writs of mandamus, and such other writs as shall be necessary to enforce its own jurisdiction ”

“ The private litigants brought those actions only after a San Antonio doctor performed a postheartbeat abortion and openly advertised it in the Washington Post. See A. Braid, Why I Violated Texas’s Extreme Abortion Ban, Washington Post, Sept. 19, 2021, p. A31, col. 2. Opponents of abortion, meanwhile, have been sued 14 times in the Texas state courts, including by some of the very petitioners in this case. ”

“ The very 'confusion' which the Texas legislature and Supreme Court feared might result from review by many state courts of the Railroad Commission's orders has resulted from the exercise of federal equity jurisdiction. As a practical matter, the federal courts can make small contribution to the well organized system of regulation and review which the Texas statutes provide. ”

“ The judicial powers of the government shall be vested in one supreme court, and such inferior courts as the congress may, from time to time, ordain and establish. The judges of the supreme and inferior courts shall hold their offices for four years, be eligible to re-election, and shall, at stated periods, receive for their services a compensation, not to be increased or diminished during the period for which they were elected.
Section. 2. The republic of Texas shall be divided into convenient judicial districts, not less than three nor more than eight. ”

“ Before us, a birth mother, foster and adoptive parents, and the State of Texas challenge the Act on multiple constitutional grounds. They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. The United States, joined by several Indian Tribes, defends the law. The issues are complicated—so for the details, read on. But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing. ”

“ See Brief for Respondent Clarkston 10. [4] Petitioners cast aspersions on the Texas state courts, but those courts are not dawdling in these pre-enforcement actions. The Texas courts held summary-judgment hearings on November 10 and entered partial judgment for the abortion providers on December 9. See Van Stean v. Texas, No. D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9, 2021) . Simply put, S. B. 8’s supporters are under greater threat of litigation than its detractors. ”

“ Whatever a court may say in an opinion does no more to compel federal officials to change how they exercise their prosecutorial discretion than an order vacating the Guidelines. Nor do we measure redressability by asking whether a court’s legal reasoning may inspire or shame others into acting differently. We measure redressability by asking whether a court’s judgment will remedy the plaintiff’s harms. ”

“ While this Court’s precedents foreclose some of the petitioners’ claims for relief, others survive. The petitioners also name as defendants Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8. ”

“ Early decisions are inconsistent with the understanding of Executive Power that appears to animate the majority. In 1806, Justice Patterson, while presiding over a criminal trial, rejected the argument that the President could authorize the defendant to violate the law. United States v. Smith, 27 F. Cas. 1192, 1201 (No. 16,342) (CC NY 1806) . He concluded:
“The president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids. ”

“ Indeed, Texas’s own family code permits certain private parties to initiate suits for the termination of parental rights. Tex. Fam. Code Ann. §102.003 (a) (West Cum. Supp. 2022) ; see Reply Brief for Texas 27. And while petitioners treat “active efforts” as synonymous with “government programs,” state courts have applied the “active efforts” requirement in private suits too. See, e.g., In re Adoption of T. A. W., 186 Wash. ”

“ In sum, when a prisoner pursues state post-conviction DNA testing through the state-provided litigation process, the statute of limitations for a §1983 procedural due process claim begins to run when the state litigation ends. In Reed’s case, the statute of limitations began to run when the Texas Court of Criminal Appeals denied Reed’s motion for rehearing. ”

“ In any event, arrest policy cannot be divided from detention policy in this case. When a person is arrested, he or she is detained for at least some period of time, and under the detainer system involved here, “arrest” often simply means transferring an immigrant from state custody to federal custody. As best I can tell, the majority’s distinction between arrest and detention is made solely to avoid the obvious inference that our decision last Term in Biden v. Texas should have dismissed the case for lack of standing, without analyzing “the Government’s detention obligations.” ”

“ But the petitioners do not seek such relief. It is Texas that has taken the unprecedented step of delegating its enforcement authority to the world at large without requiring any pre-existing stake. Under the Court’s precedents, private actors who take up a State’s mantle “exercise ... ”

“ Likewise here, petitioners seek a declaration that S. B. 8 is unlawful even though no respondent can or will enforce it. ↑ For the remaining licensing officials—the heads of the Texas Health and Human Services Commission, the Texas Board of Nursing, and the Texas Board of Pharmacy—the principal opinion identifies no law that connects these officials to S. B. 8 or overrides the Act’s preclusion of governmental enforcement authority. Indeed, as to the Health and Human Services Commission, S. B. 8 explicitly forecloses enforcement authority. ”

“ But the same provision of S. B. 8 also states that the law “may not be construed to ... limit the enforceability of any other laws that regulate or prohibit abortion.” §171.207 (b) (3) . This saving clause is significant because, as best we can tell from the briefing before us, the licensing-official defendants are charged with enforcing “other laws that regulate ... abortion.” Consider, for example, Texas Occupational Code §164.055, titled “Prohibited Acts Regarding Abortion.” ”