An obscure constitutional amendment from 2021 is driving a momentary wedge between the state attorney general and three conservative grassroots groups typically in his corner.
The past week has seen the parties quarreling in the public square over a dispute occurring within the confines of a courtroom.
Paxton’s office responded to McCarty’s assertion, suggesting she and her allies are “unfortunately misled” — to which McCarty rejoined with another message, “Paxton Digs In His Heels Against His Base.”
During the 2022 primary for attorney general, True Texas Project recommended Congressman Louie Gohmert (R-TX-01) but then supported Paxton when he advanced to the runoff versus Land Commissioner George P. Bush.
The tiff centers on the passage of a ballot proposition, which became a constitutional amendment after a statewide vote, and a lawsuit from those groups challenging the efficacy of the language before voters.
“The constitutional amendment authorizing a county to finance the development or redevelopment of transportation or infrastructure in unproductive, underdeveloped, or blighted areas in the county,” read the ballot language. It passed with over 60 percent support from voters.
Included via legislative amendment is a stipulation to the proposition that no more than 65 percent of a tax increase be allotted to pay off those transportation project debts. Toll road projects are excluded from the amendment’s borrowing authority.
The item — which allows counties to issue debt service to finance transportation projects, something cities can already do — passed overwhelmingly, but omitted any reference to ad valorem taxes. The 2011 version of the proposition, which had the same intent as the 2021 version, did not omit that language and it failed on the statewide ballot.
That 2011 language read the same as 2021’s, but also added, “…and to pledge for repayment of the bonds or notes increases in ad valorem taxes imposed by the county on property in the area. The amendment does not provide authority for increasing ad valorem tax rates.”
The three conservative organizations — Texans Uniting for Reform and Freedom, True Texas Project, and Grassroots America-We the People — assert that “the ballot language was substantially misleading, and that therefore this Court should issue a judgment ordering Governor Abbott to declare the election on Proposition 2 void.”
They object to the language, stating that voters were misled because no explicit mention of property taxes was made on ballots. “State law requires that a proposition be described with such definiteness and certainty that the voters are not misled,” posits the suit.
To make their case, the groups point to a 2015 Texas Supreme Court opinion in which the court ruled that, “First, [an inadequate description] may affirmatively misrepresent the measure’s character and purpose or its chief features. Second, it may mislead the voters by omitting certain chief features that reflect its character and purpose.”
At that case’s center was a City of Houston proposition that allowed “pay-as-you-go” borrowing for drainage and street projects — the ballot language for which omitted any mention of the drainage charges to be imposed on property owners.
The Texas Secretary of State John Scott is the defendant in the current case, as required by Texas Election Code.
In his response filed by the Office of the Attorney General (OAG), the secretary of state claimed sovereign immunity. He also said the plaintiffs lack standing to challenge the proposition; asserted that the organizations’ suit was “unreasonab[ly] delayed, filed almost a week after the proposition passed; and contended that “the ballot language at issue constitutes a fair portrayal of the propositions chief features and substantially submitted the question to the voters with sufficient certainty so that the voters were not misled.”
The brief does not provide many details explaining its assertions.
While this case has lingered in court for months, the parties have taken to the public square to hash out their disagreements.
In her first email, dated August 12, McCarty wrote, “Initially Attorney General Ken Paxton’s office indicated they agreed with us, but after pressure from Abbott and the DEMOCRAT who drafted the deceptive language, Paxton has now turned against taxpayers in the suit…It’s time for Paxton to feel some heat.”
McCarty did not pull any punches, adding further down, “Hey, as long as he throws out red meat regarding Biden, he can skate by, right? Not on our watch.”
Paxton’s camp responded in a statement to Texas Scorecard on Monday, saying, “It cannot credibly be said that AG Paxton is ‘siding’ with Democrats. Our friends at the True Texas Project are unfortunately mistaken.”
“First, AG Paxton did not ‘initially indicate’ that he would break from the position of his client, the Secretary of State. Any pre-litigation openness to some of the positions TTP was taking on this issue cannot be construed to mean AG Paxton would wholesale decline to represent the SOS,” it continued.
“Second, it was TTP — not AG Paxton — that filed suit in front of a Democrat Travis County District Court Judge. AG Paxton has no choice but to litigate the case there.”
The plaintiff organizations did indeed choose to file the lawsuit, but state law mandates that any contest of a statewide election must be filed in Travis County.
The OAG also stated that it agrees citizens may contest ballot language — saying this particular response is based “on facts and law that are unique to this case” — and that the attorney general “has a basic duty to represent his client: here, the SOS.”
“There’s nothing ‘liberal’ about that, and TTP is wrong to lump AG Paxton in with Democrats just for doing his job.”
In a fiery reply, McCarty provided an array of responses to the OAG’s statement.
Scott was appointed by Republican Gov. Greg Abbott last year. The Democratic tie-in made by McCarty is that the constitutional amendment’s joint resolution author was state Rep. Terry Canales (D-Edinburg). The resolution passed the House with only 13 Republicans voting “nay,” and passed the Senate, tightly controlled by Republican Lt. Governor Dan Patrick, with only four Republicans in opposition.
The OAG generally serves as counsel for the State of Texas, including its agencies — a responsibility Paxton’s office invoked in its rebuke of McCarty. Section 402.021 of Texas Government Code reads, “The attorney general shall prosecute and defend all actions in which the state is interested before the supreme court and courts of appeals.”
But McCarty objected to that contention, suggesting four alternatives: the OAG settling the case “against [his client’s] wishes”; file a “dueling brief,” in which he’d file an amicus brief siding with the plaintiffs while a staff attorney represents the Secretary of State; decline to represent the agency and push for an internal attorney to represent Scott; or decline to represent Scott and authorize the agency to hire outside counsel.
An instance of an OAG working against a state agency in a legal fight occurred in 2005, when then-Attorney General Greg Abbott sided against the Texas Department of Transportation (TxDOT), and was then sued by the agency and its Texas Trans Corridor contractors for trying to keep contract information secret.
The fallout between these groups and Paxton over this issue continues, and the two sides will meet in court for a hearing later this month on August 30 in the 53rd District Court in Travis County.
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Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.