State of Texas v. Harris County, Texas

ACCEPTED 15-24-00120-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 2/7/2025 6:15 PM No. 15-24-00120-CV CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS In the Fifteenth Court of Appeals AUSTIN, TEXAS 2/7/2025 6:15:52 PM Austin, Texas CHRISTOPHER A. PRINE Clerk

State of Texas, Appellant, v. Harris County, Texas, et al., Appellees.

On Appeal from the 165th Judicial District Court, Harris County, Texas Cause No. 2024-63919, Hon. Ursula Hall, Presiding Judge

Appellees’ Bench Exhibits Of Counsel: Christian D. Menefee Harris County Attorney Grant B. Martinez State Bar No. 24104118 Jonathan G. C. Fombonne [email protected] Deputy County Attorney & First Assistant Justin P. Tschoepe State Bar No. 24102702 Lily E. Hann [email protected] Yetter Coleman LLP Main Street, Suite 4100 Office of the Harris County Houston, Texas 77002 Attorney Phone: (713) 632-8000 1019 Congress, 15th Floor Houston, Texas 77002 Phone: (713) 274-5101 Attorneys for Appellees THE TRIAL COURT’S JUDGMENT SHOULD BE AFFIRMED e The Attorney General had no authority to bring this suit.

2 No valid ultra vires claim: the Program is constitutional.

THE CONSTITUTIONAL TEXT LIMITS THE ATTORNEY GENERAL’S 1 AUTHORITY TO REPRESENT THE STATE IN DISTRICT COURTS.

Attorney General: Supreme Court County Attorneys: District Courts

Tex. Const. art. V, § 21 Tex. Const. art. IV, § 22 SUPREME COURT DECISIONS RECOGNIZE THE ATTORNEY 1 GENERAL’S LIMITED AUTHORITY TO BRING SUIT IN TRIAL COURTS State v. Moore (Tex. 1882) written by delegate to 1875 convention (1) County attorneys represent State in district courts. Attorney General lacked authority to represent State in district courts except for the cases expressly mentioned in constitution. (2) Legislature cannot expand that authority.

Brady v. Brooks (Tex. 1905) (1) Overruled only Moore’s second holding: The “Legislature had the power to create causes of action in favor of the state, and to make it the [attorney general’s] exclusive duty to prosecute such suits.” (2) Does not disturb Moore’s first holding that, otherwise, the Attorney General generally lacks authority to represent the State in the trial courts.

State ex rel. Durden v. Shahan (Tex. 2022) “This authority to represent the state, however, does not necessarily include the authority to independently decide whether to institute a suit on the state’s behalf. The Legislature must provide that authority by statute.”

THE ATTORNEY GENERAL HAS ARGUED THAT, ABSENT A STATUTE, 1 HE CANNOT REPRESENT THE STATE IN THE TRIAL COURTS.

Harris County Br. App’x Tab 7

NO STATUTE AUTHORIZES THE ATTORNEY GENERAL TO 1 REPRESENT THE STATE IN THIS TYPE OF CASE.

“While there is no general statute authorizing the Attorney General to represent the State and its agencies in district court, the Legislature has provided for such representation in particular types of cases.”

El Paso Elec. Co. v. Tex. Dep’t of Ins. (Tex. 1996)

Supp.RR.16 SUPREME COURT HAS REPEATEDLY REJECTED ANY IMPLIED 1 POWER NOT FOUND IN CONSTITUTION OR STATUTES “Finding no express law which authorized [the attorney general] to institute and maintain the suit, it would be difficult to hold that [he] had the implied power resulting from the general grants of power or imposition of duties. . . . [I]n a government in which the duties of all officers, as well as their powers, are defined by written law, no power ought to be exercised for which warrant is not there found.”

Day Land & Cattle Co. v. State (Tex. 1887) written by delegate to 1875 convention

“[S]ince there is no constitutional or statutory provision which vests in the Attorney General the power, or makes it his duty, to institute actions for the removal of county officers . . . the Attorney General cannot assert or exercise such power and duty in this action. We conclude that such power and duty vests in the county attorney. . . .” State ex rel. Downs v. Harney (Tex. App.—San Antonio 1942, writ ref’d w.o.m.)

“‘As Statethe ex powers rel. Downsand v.duties of the Harney, 164Attorney General S.W.2d 55, are App.—San (Tex. prescribed Antonio by the Constitution and 1942, writ ref’d Statutes, thoserefused w.o.m.), writ powersW.O.M. must be(Oct. limited 14,to1942)Garcia those so prescribed, and (Tex. v. Laughlin may not be (approving 1955) enlarged by and the courts.’ quoting .State . . [T]he ex rel.Attorney Downs v.General Harney)does not possess the power to institute these removal proceedings. . . .”

Garcia v. Laughlin (Tex. 1955) (approving as correct and quoting Harney)

THE DECENTRALIZING 1876 CONSTITUTION REDUCED THE 1 ATTORNEY GENERAL’S AUTHORITY IN THE DISTRICT COURT

1869 Const. art. IV, § 23

The 1875 convention committee “probably was displeased with the theoretical subordination of local state’s attorneys to the attorney general,” and it retained “the 1869 Constitution’s division of authority without any central supervision over the local trial attorneys.” Braden, The Constitution of the State of Texas 355

THE TRIAL COURT’S JUDGMENT SHOULD BE AFFIRMED e The Attorney General had no authority to bring this suit.

2 No valid ultra vires claim: the Program is constitutional.

THE PROGRAM SATISFIES THE BORGELT TEST 1. The Program provides sufficient return consideration: ‐ Valuable data about where, when, and how much money is spent 2. The Program’s predominant objective is to accomplish legitimate public purposes ‐ Poverty reduction, self‐sufficiency, reduced unemployment, improved health and educational outcomes, helping those disproportionately affected by COVID‐19’s health and economic crises to recover 3. Controls sufficient to ensure public purpose accomplished ‐ New: contract to use of funds only for basic needs, contractual audit rights, spending automatically monitored and restricted ‐ Retained from Uplift Harris: eligibility requirements, incremental payments to vendor, removal for non‐compliance with terms BORGELT: THE PROGRAM PROVIDES SUFFICIENT RETURN 2 CONSIDERATION

2.RR.20, 37, 54 Valuable data on when, where, how much spent – hired vendor to evaluate BORGELT: THE PROGRAM’S PREDOMINANT OBJECTIVE IS TO 2 ACCOMPLISH LEGITIMATE PUBLIC PURPOSES

5.RR.5

2.RR.10‐11

This evidence stands unrebutted BORGELT: THE PROGRAM HAS SUFFICIENT CONTROLS TO ENSURE 2 THAT ITS PUBLIC PURPOSES ARE ACCOMPLISHED

5.RR.111 New: Contractual restrictions on use of funds and contractual audit rights BORGELT: THE PROGRAM HAS SUFFICIENT CONTROLS TO ENSURE 2 THAT ITS PUBLIC PURPOSES ARE ACCOMPLISHED

5.RR.99

New: Spending automatically monitored & limited by merchant type

BORGELT: THE PROGRAM HAS SUFFICIENT CONTROLS TO ENSURE 2 THAT ITS PUBLIC PURPOSES ARE ACCOMPLISHED

5.RR.93

Contract with vendor limits its control of funds

Certificate of Service A true and correct copy of the foregoing has been forwarded to all counsel of record on February 7, 2025, via the Court’s electronic filing system.

Ken Paxton Brent Webster Ralph Molina James Lloyd Kimberly Gdula William D. Wassdorf William H. Farrell Benjamin Mendelson Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711 Phone: (512) 936-1700 Fax: (512) 474-2697 [email protected] /s/ Grant B. Martinez Grant B. Martinez Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Grant Martinez on behalf of Grant Martinez Bar No. 24104118 [email protected] Envelope ID: 97144673 Filing Code Description: Exhibit Filing Description: Appellees' Bench Exhibits Status as of 2/10/2025 7:07 AM CST Associated Case Party: The State of Texas Name BarNumber Email TimestampSubmitted Status Ben Mendelson [email protected] 2/7/2025 6:15:52 PM SENT Nicole A.Myette [email protected] 2/7/2025 6:15:52 PM SENT William Farrell [email protected] 2/7/2025 6:15:52 PM SENT

Associated Case Party: Harris County, Texas Name BarNumber Email TimestampSubmitted Status Christopher Garza 24078543 [email protected] 2/7/2025 6:15:52 PM SENT Jonathan Fombonne 24102702 [email protected] 2/7/2025 6:15:52 PM SENT Eleanor Matheson 24131490 [email protected] 2/7/2025 6:15:52 PM SENT Christian Menefee 24088049 [email protected] 2/7/2025 6:15:52 PM SENT Ryan Cooper 24123649 [email protected] 2/7/2025 6:15:52 PM SENT Andrea Mintzer [email protected] 2/7/2025 6:15:52 PM SENT

Case Contacts Name BarNumber Email TimestampSubmitted Status Delonda Dean [email protected] 2/7/2025 6:15:52 PM SENT Yetter Coleman [email protected] 2/7/2025 6:15:52 PM SENT Edward Swidriski 24083929 [email protected] 2/7/2025 6:15:52 PM SENT Athena Leyton [email protected] 2/7/2025 6:15:52 PM SENT Toni Shah [email protected] 2/7/2025 6:15:52 PM SENT Grant Martinez [email protected] 2/7/2025 6:15:52 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Grant Martinez on behalf of Grant Martinez Bar No. 24104118 [email protected] Envelope ID: 97144673 Filing Code Description: Exhibit Filing Description: Appellees' Bench Exhibits Status as of 2/10/2025 7:07 AM CST Case Contacts Grant Martinez [email protected] 2/7/2025 6:15:52 PM SENT Lily Hann [email protected] 2/7/2025 6:15:52 PM SENT Marisa Mata [email protected] 2/7/2025 6:15:52 PM SENT