County Judge KP George and County Attorney Bridgette Smith-Lawson joined the bandwagon of school districts challenging the governor’s executive order, more as a political showboat devoid of sound legal acumen.
These lawsuits have generated both local and national publicity for the Governor at no expense to his campaign, but at great expense to the taxpayers of Fort Bend County.
Having plunged head first into a lawsuit that the Governor baited various counties into filing, now the County Attorney is in a quandary, unable to figure a way out of one District Court proceeding and two appellate cases.
In desperation, the county has hired an outside firm to attempt to extricate the taxpayer from the expensive “hole” that they are in.
At the insistence of KP. George, the county erred badly by filing suit against the Governor. As a matter of abundant caution, the county should have waited it out as other entities have filed similar lawsuits against the Governor.
First, it is puzzling that none of the dozen or more attorneys in the County Attorney’s office seem to know that Governors do not and cannot impose fines. Fines and sanctions are imposed by adjudicatory officers or judges, and no Governor could ever impose a fine on anyone, and the remedy of a fine must be codified by the legislature.
Second, the amount of the fine that the Governor was threatening should have been a dead give away to the bluff. The Governor’s threatened fine of $1,000 far exceeds even a district court’s contempt authority to impose a fine.
Under Chapter 21 of the Texas Government Code, the maximum fine would be $500, and only after a contempt trial has been held, and only after the Governor secured an injunction against the County.
The County Attorney should have recognized that the Governor’s threat was a political ploy, and KP. George should have simply signed the mask mandate order, and taken the Governor up on his “offer”!
At this time, Attorney-General Ken Paxton has sued a handful of school districts for defying the executive order and Fort Bend County has been named as one of the defying counties. No fine has been imposed or lawsuit filed yet.
Third, the Governor’s lawyers out-lawyered county lawyers because had the Governor brought the suit, he would have been required by law to bring it in Fort Bend County, and as the plaintiff, he could never have laid out the final trap for the County Attorney, namely, the Governor’s legal filing called a “plea to the jurisdiction” which only a defendant, not a plaintiff can file and argue.
This “plea to the jurisdiction” was the bait that the County Attorney should have recognized as the Governor’s trump card and it should and could have been avoided.
Once the District Judge in Fort Bend County denied the governor’s plea, the entire case was shut down following the Governor filing a notice of appeal. The entire case is stayed, and any filings into the case, or hearings, or orders made after the notice of appeal are all totally void. It is obvious that the huge amount the taxpayers spent playing this game of judicial chicken, has now gone for naught.
Fourth, now we have two very expensive appellate cases in Houston’s First Court of Appeals that sprung from the ill fated decision to sue the Governor in the first place.
Remarkably, both the County Attorney, and the expensive outside law firm hired by the County Attorney seem to be unaware of the law to file a motion in the Court of Appeals to dismiss the first appellate proceeding called a mandamus proceeding.
Why? Houston’s First Court of Appeals’ precedent makes clear that if a party initiates a mandamus proceeding, and then gives notice of appeal, that party has admitted that it has an adequate remedy by appeal, and the court will deny the mandamus immediately.
In other words, the governor, by filing an appeal, rendered his mandamus petition null and void. By using the precedent, the county should have got one of the appellate cases dismissed. It failed to do so.
Finally, all that KP. George had to do was sign the mask mandate and dare the Governor to sue him. The advantage would have been in his favor. He also had the weight of the county attorney and the district courts at his disposal, as he would have been the defendant, not the plaintiff.
All that the county could accomplish so far was to use the outside attorney to file an “Unopposed Emergency Motion to Expedite Appeal,” in the First Court of Appeals on Sept. 7.
The county filed this request for an expedited briefing schedule for this appeal, but does not oppose the governor’s requested relief. The judge granted this request, setting the date for the county’s reply by Sept. 29 and the governor’s reply brief by Oct. 4.
All these attempted legal cures had no impact on the pandemic, though the vaccines seem to make a difference. Yet the polemic of mask and vaccine mandates dominated the headlines, with daily new cases, hospitalizations, fatalities and variants becoming a part of the statistics.