TEXAS
SSN CASE - Lawyer Summary of Interrogatory Responses:
This letter is intended to summarize and analyze the discovery
responses of the three named Defendants. On July 11, 2008, our office
requested that each defendant disclose the relevant opinions, facts,
contentions, and documents in their possession or control. The
sections below outline the responses from each Defendant.
Texas Boll Weevil
Eradication Foundation, Inc. (“TBWEF”)
(Lindy Patton)
The TBWEF’s primary defense is that it is “not the head of a state
agency which issues or renews state licenses and permits.” To this end,
the Foundation denies being a “quasi-governmental agency,” despite that
its own website says that “the state Legislature has given [it] the
authority for the implementation of eradication... The Texas Department
of Agriculture has... oversight of the Foundation's operation.”
Additionally, the Texas Department of Agriculture (“TDA”) admits that
the foundation is a quasi-governmental agency under its
supervision.
Another factual basis of its defense is that the TBWEF “only certified
aerial applicators who have been familiarized with local conditions
will be used by the Texas Boll Weevil Eradication Foundation, Inc. per
the National Boll Weevil Cooperative Control Program Operational
Procedures and Mitigation Measures.” However, the Foundation does not
articulate how this policy relates to Plaintiff’s request for religious
accommodation. TWBEF also asserts that Religious Freedom Restoration
Act (RFRA) of 1993 is unconstitutional per City of Boerne v. Flores,
117 S.Ct. 2157 (1997). However, it remains undisputed that the
Texas RFRA which essentially codified the Federal RFRA as a state law,
the Texas Constitution, and US Constitution protect religious
freedoms. Lindy Patton, CEO of the TWBEF, denies that he knew or
should have known that (Gene McArthur) requested a religious
accommodation. There may be merit to this claim as we did not
correspond with the TBWEF regarding the religious accommodation prior
to filing suit and only brought them in so that all players would be
involved in the litigation.
The attorney for this organization has made it clear that he will be
filing a motion for summary judgment on behalf of the Foundation.
This will increase the need for resources in order to overcome this
legal obstacle if possible.
Texas
Department of Agriculture
(Todd Staples)
TDA admits that the TBWEF is a quasi-governmental agency tasked by the
Texas legislature and under the supervision of the Commissioner of the
Texas Department of Agriculture (TDA’s Objections & Answers to
Plaintiff’s First Requests for Admission Nos. 1, 2, & 3.).
While Todd Staples denies that in his official capacity with the TDA he
“refused to allow a religious accommodation for Plaintiff...,”(Id. At
No. 21) he admits that (Gene McArthur) requested such accommodations
(Id. At Nos. 23, 24, 25, 48). The TDA acknowledges the
involvement of the OAG; admitting that “the office of the Attorney
General stated that Plaintiff must have either a Social Security number
or Texas Driver’s License number and date of birth.”( At No. 60.)
Additionally, the Todd Staples admits that one of the roles in the TDA
is overseeing licensures. Accordingly, the responses of the Texas
Department of Agriculture reinforce our actions against the Office of
the Attorney and the TBWEF. Additionally, the TDA lists the same
factual and legal and defenses as the OAG (address above), with the
exception that the TDA does not assert that Plaintiff’s Petition fails
to state a cause of action.
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Attorney
General
(Greg Abbott)
The Attorney General repeatedly asserts a “global objection” that
“Plaintiff has not alleged any cause of action against Defendant Greg
Abbott. Plaintiff has not identified any action taken by Defendant
which was unlawful....” Defendant’s claim that Plaintiff lacks any
causes of action against Defendant is the thrust of Defendant’s
defense. Based upon this objection, Defendant may file a Motion
for Special Exceptions or Motion to Dismiss.
The Attorney General’s objections and defenses are
most clearly spelled out in its response to TRCP 194.2(c): (1)
Defendant has not been alleged in Plaintiffs Original Petition to have
committed any act causing injury Plaintiff; (2) Defendant believes that
Plaintiff has not met the administrative requirements to apply the
Texas Religious Freedom Act or other causes of action against
Defendant. At no point has Plaintiff contacted Defendant directly as
required by statute; (3) Defendant believes that Plaintiffs actions are
impermissible due to expiration of the statute of limitations on causes
of action arising under the Texas Religious Freedom Restoration Act
(TRFRA) and other causes of action; (4) Defendant believes that the
Federal Religious Freedom Restoration Act does not apply to Defendant
in this fact situation; (5) Defendant believes that Plaintiff has not
taken steps to mitigate his damages, including use of substitute
information instead of the complained of Social Security Number; (6)
Defendant is a state official, so is subject to sovereign immunity in
his official capacity, and official immunity and qualified immunity in
his individual capacity.
At present, our office believes that we have a
reasonable basis to overcome each of the hurdles articulated by the
OAG. The statute of limitations on a TRFRA claim is one year. Plaintiff
filed his claim on April 4, 2008, only a few months after the OAG’s
unfavorable response (action giving rise to the claim) to the TDA’s
request for assistance in reconciling your request for accommodation
with child support enforcement laws. Moreover, we find
Defendant’s declaration of immunity to be unfounded, as Texas Civ.
Prac. & Rem. Code § 110.001(a)(1) expressly prohibits
governmental agencies from burdening one’s free exercise of
religion. TRFRA enables an individual to sue over many kinds of
agency action, including an ordinance, rule, order, decision, practice,
or other exercise of governmental authority.
The OAG contends that it does not maintain copies of, nor is Defendant
consulted about, individual TBWEF contracts.(AG’s Objections &
Answers to Plaintiff’s First Request for Admission No. 4). Greg Abbott,
in his capacity as Attorney General, denies that he knew or should have
known that the OAG determined that a social security number would be
required for renewal of licensure (Id. At No. 15), but admits knowing
that he knew or should have known that Plaintiff requested an
accommodation of the requirement (Id. At Nos. 19 & 20
(Additionally, Abbott misquotes RFA No. 22—citing RFA No. 22 from
Plaintiff to Todd Staples). The Attorney General denies any
involvement with the licensure through the Department of Agriculture
(Id. At 83), despite our evidence of written communications between the
agencies regarding the same.
All of the Defendants’ discovery
responses are littered with objections
and we are currently considering whether we should file a motion to
compel answers, follow up with a second set of requests, or work with
the responses received in the interim.
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