Austin to Fed Judge: Dismiss State’s SB 4 Suit

City attorneys question the timing of the state’s pre-emptive strike

Judge Sam Sparks
Judge Sam Sparks

Austin officials are asking a federal judge to toss out Texas' lawsuit against the city over anti-immigrant bill SB 4. Attorney General Ken Paxton filed the suit just a day after Gov. Greg Abbott stealthily signed the "sanctuary cities" bill, as a pre-emptive punishment before the city filed suit itself. In a motion addressed to U.S. Judge Sam Sparks, city attorneys point out that Austin couldn't have possibly violated the law or caused the state harm because ... it's technically not a law yet. (SB 4 doesn't take effect until Sept. 1.)

"Given that the governor announced his signing online via 'Facebook Live,' Sunday evening, May 7, 2017, and given that the A.G. filed suit at midnight that same evening, it is not surprising that the state cannot identify a single objectionable act during the relevant time period," the motion reads. (In a biting footnote, city attorneys wrote that Texas "inexplicably omits" the effective date of SB 4 from its complaint, instead incorrectly stating SB 4 was "law" on May 7.) Further, attorneys note the state is seeking to base a federal case merely on the vocal opposition of public leaders who condemned the future law, all within the bounds of free speech. "Texas' suit seeks to fabricate a case or controversy based upon public statements by city officials who believe [SB 4] is unconstitutional," it reads. In a legal burn, city attorneys urge the state to go elsewhere to resolve their doubts about the law's constitutionality: "Even if the state is insecure about the constitutionality of a law the Legislature passed and the governor signed, this court is not the venue for the state to seek relief from any anxiety."

While a suit has yet to be filed, Austin's City Council has voted to initiate litigation to challenge SB 4. Among its rules, which include a "Papers Please"-style provision and forced ICE detainer compliance, SB 4 also punishes any elected or appointed official who adopts or endorses a policy that limits local police investigations of immigration status – or, as the city's motion puts it, "elected officials who dare to advocate for the civil and human rights of their constituents." If found guilty by the A.G., officials could be removed from office.

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SB 4, 85th Lege, Ken Paxton, Sam Sparks, Greg Abbott

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