Tex. Equal Access Fund v. Maxwell

1

Texas Equal Access Fund, Appellant v. Ashley Maxwell, Appellee

No. 02-22-00347-CV

Court of Appeals of Texas, Second District, Fort Worth

February 29, 2024

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 22-2100-431

Before Birdwell, Bassel, and Walker, JJ.

MEMORANDUM OPINION

Dabney Bassel Justice

I. Introduction

This appeal is one skirmish among the generations-long conflicts over Texas abortion law. The skirmish that underlies this appeal is a challenge to what is known colloquially as the Texas Heartbeat Act (the Act) or Senate Bill 8 (SB 8). See Tex. Health &Safety Code Ann. §§ 171.201-.212. In the short time since its passage, the Act has produced a unique and complex history of litigation. Though complex, that history has not yielded what opponents of the Act, such as Appellant Texas Equal Access Fund (the Fund), seek-a resolution of their host of challenges to the Act's private civil-enforcement remedy.

Below Appellee Ashley Maxwell filed a Rule 202 petition to take the Fund's executive director's deposition to investigate whether the Fund had violated the Act. The Fund took this as an opening to raise its challenges and responded to the Rule 202 petition with a separate suit (the Declaratory-Judgment Petition) that sought declarations to invalidate the Act and to enjoin Maxwell from filing suit under the Act. Maxwell responded by filing a motion to dismiss (the Dismissal Motion), which invoked the Texas Citizen Participation Act (TCPA) and Texas Rule of Civil Procedure 91a. The trial court frustrated the Fund's efforts by granting Maxwell's Dismissal Motion. The trial court properly dismissed the Fund's suit under Texas Rule of Civil Procedure 91a because the Fund's declaratory-judgment requests improperly preempt Maxwell's ability to decide both whether she would follow through with a suit under the Act and where she would file should she decide to do so. And because the trial court properly dismissed the Fund's Declaratory-Judgment Petition under Texas Rule of Civil Procedure 91a, we further hold that the trial court did not err by awarding Maxwell attorney's fees. Accordingly, we affirm.^[1]

II. Background of the Heartbeat Act, the Case, and Texas Abortion Law

A. We set forth the general nature of the Heartbeat Act and the history of challenges to it.

In grossly oversimplified terms, the Act prohibits abortion after a fetal heartbeat is detected. To avoid pre-enforcement review of the Act by the federal courts and to address the legal environment that existed before the overruling of Roe v. Wade, Texas state officials are specifically not permitted to enforce its prohibition. Instead, the Act provides that "the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208." Tex. Health &Safety Code Ann. § 171.207(a). We will discuss the private civil-enforcement mechanism more fully below.

Issues regarding the Act's enforcement mechanism and whether the Act's provisions would be permitted to go into effect on its effective date of September 1, 2021, spawned litigation that traveled like lightning through the federal courts and generated an opinion on a certified question by the Texas Supreme Court. A concise summary of that litigation's path is found in an opinion from the federal district court in which several suits challenging the Act were filed:

In July 2021, a group of abortion service providers and advocacy organizations filed a pre-enforcement challenge, seeking injunctive relief to stop S.B. 8 from taking effect. Whole Women's Health v. Jackson, 556 F.Supp.3d 595 (W.D. Tex....) [(order)], aff'd in part, rev'd in part[,] 595 U.S. 30, 142 S.Ct. 522 . . . (2021). Defendants filed a motion to dismiss, which this [c]ourt denied on August 25, 2021. Id. The Fifth Circuit then issued a temporary administrative stay of proceedings in the case. Hours before S.B. 8 took effect, Plaintiffs filed an emergency application for injunctive relief or to vacate the stay with the Supreme Court. Whole Woman's Health v. Jackson, 595 U.S. 30, 141 S.Ct. 2494 . . . (2021). In a brief opinion, the Supreme Court denied the emergency application, with Justices Breyer, Kagan, [and] Sotomayor[] and Chief Justice Roberts each filing a dissenting opinion. Id. In [his] dissent, Chief Justice Roberts noted that "[t]he statutory scheme before the Court is not only unusual, but unprecedented," because "[t]he legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large[]" with the "desired consequence appear[ing] to be to insulate the State from responsibility for implementing and enforcing the regulatory regime." Id.

The Supreme Court then granted cert before judgment and, in an opinion written by Justice Gorsuch, explained its reasoning at greater length. Whole Woman's Health . . ., , 142 S.Ct. [at 529-39]. The Court held that Ex [p] arte Young barred suit against the Attorney General [of Texas] but that Plaintiffs had sufficiently alleged the enforcement authority of Texas executive officials with disciplinary authority over medical licensees. Id. at [43-44, 142 S.Ct. at] 535. On remand to the Fifth Circuit, the remaining defendants moved to certify a question as to whether state officials could enforce any provision of S.B. 8. Whole Woman's Health v. Jackson, 23 F.4th 380 (5th Cir.[ 2022]). The Fifth Circuit granted the motion for certification. Id. On March 11, 2022, the Texas Supreme Court held that none of the remaining defendants could enforce S.B. 8, effectively bringing the case to a halt. Whole Woman's Health v. Jackson, 642 S.W.3d 569 (Tex. 2022).

Also during the fall of 2021 and pre-Dobbs, the United States filed a separate action against the State of Texas, challenging S.B. 8 as being in "open defiance of the Constitution." United States v. Texas, 566 F.Supp.3d 605 (W.D. Tex. 2021) [(order)]. This [c]ourt granted the United States' motion for a preliminary injunction and denied Texas's motion to dismiss. Id. In a per curiam, three-sentence order, the Fifth Circuit granted a temporary stay of the case, and the Supreme Court later dismissed the writ of cert. United States v. Texas, No. 21-50949, 2021 WL 4706452 (5th Cir. Oct. 8, 2021) [(per curiam) (not designated for publication)] ....

Fund Tex. Choice v. Paxton, 658 F.Supp.3d 377, 387-88 (W.D. Tex. 2023) (order).

Facing frustration from the federal courts in their challenges, opponents of the Act shifted their attacks to the forum of Texas state courts. At this juncture, the pace of the litigation slowed. None of the state-court litigation has yielded a definitive answer to the attacks on the Act.

A host of the suits filed by opponents of the Act that involved the Texas Right to Life organization were transferred to multidistrict litigation (MDL) court. See Tex. Right to Life v. Van Stean, No. 03-21-00650-CV, 2023 WL 3687408, at *2 (Tex. App.- Austin May 26, 2023, pet. filed) (mem. op.) (describing the procedural history of this MDL proceeding). In December 2021, the MDL court rendered an order that concluded several aspects of the Act's private civil-enforcement remedy were unconstitutional or invalid. But the order also denied a TCPA motion to dismiss filed by Texas Right to Life. Id. (stating that "[o]n December 9, 2021, the MDL court signed an order denying Texas Right to Life's plea to the jurisdiction and granting in part and denying in part the Planned Parenthood and Van Stean appellees' summary- judgment motions" and further stating that "[r]elevant to this appeal, the MDL court in the same order denied Texas Right to Life's TCPA motion to dismiss").

The denial of Texas Right to Life's TCPA motion enabled it to file an interlocutory appeal challenging the MDL court's denial order but which did not include a review of the MDL court's order concluding that various aspects of the Act were unconstitutional. Id. at *3. The Austin Court of Appeals concluded that the MDL court had properly denied the TCPA motion to dismiss by deciding that the suit by the Act's opponents was not a response to Texas Right to Life's exercise of its TCPA-protected constitutional rights but was instead a valid exercise of the opponents' rights under the Declaratory Judgments Act to determine whether their constitutional rights were violated by the enactment of the Heartbeat Bill. Id. at *5. A petition for review remains pending before the Texas Supreme Court. See generally Tex. Right to Life v. Van Stean, No. 23-0468, available at https://search.txcourts.gov/Case.aspx?cn=23-0468&coa=cossup (last visited Feb. 20, 2024).

Also, a district court in Bexar County dismissed a suit by a Heartbeat Act plaintiff based on the plaintiff's lack of standing. Specifically, the district court held that a plaintiff could not bring suit under SB 8 unless he or she had suffered some actual injury resulting from the law's violation. See Gomez v. Braid, No. 2022CI08302 (45th Dist. Ct., Bexar County, Tex. Dec. 8, 2022). The San Antonio Court of Appeals's opinion reviewing the order dismissing the suit primarily addresses whether the trial court should have provided the attorney general with notice of the underlying suit pursuant to Section 402.010(a) of the Government Code and holds that the failure to give notice was not error. See Gomez v. Baird, No. 04-22-00829-CV, 2024 WL 697105, at *3 (Tex. App.-San Antonio Feb. 21, 2024, no pet. h.) (mem. op.). In a footnote, the opinion also affirms the trial court's order dismissing the suit for lack of standing based on the appellant's failure to raise an issue challenging the ground of lack of standing raised by the appellee's plea to the jurisdiction. Id....