State of Texas: State defends 'invasion' declaration in border hearing

AUSTIN (Nexstar) — The situation at the Texas border took center stage in a Congressional hearing Tuesday, amid months of escalating tensions on the ground and in the courts.

Texas Gov. Greg Abbott ordered state agents to block Border Patrol agents from Shelby Park, along the Rio Grande in Eagle Pass, Texas, despite a U.S. Supreme Court order last month allowing federal agents to remove razor wire installed along the river.

It's part of an ongoing lawsuit from President Joe Biden's administration, which argues Texas is overstepping its authority by installing razor wire that has injured some migrants. Abbott has argued that the state has both the authority and the responsibility to defend its borders from what he calls an invasion.

Texas First Assistant Attorney General Brent Webster defended the state's action before the U.S. House Judiciary Subcommittee on the Constitution and Limited Government.

"The federal government continues to fail us," Webster said. "The governor has a duty and obligation to protect the citizens of Texas. And when he sees harms coming upon Texas, he has an obligation to act."

Throughout the roughly two-hour hearing Tuesday, lawmakers and witnesses grappled over defining what constitutes an "invasion" — a key part of the governor's argument that Texas has the constitutional right to defend itself at the border. Former Arizona Attorney General Mark Brnovich agreed with Texas' arguments before the committee.

"The courts have never said that states do not have the ability to protect themselves that states do not have the ability to stop or repel an invasion," said Brnovich, arguing that cartel activity is enough to define the situation as an "invasion" at the border.

Democrats in the committee opposed that characterization of the issue, calling it dehumanizing and dangerous. U.S. Rep. Veronica Escobar, D-Texas, criticized the repeated use of the term invasion, reminding her colleagues that it was cited in a manifesto by a gunman who targeted Hispanics in the 2019 El Paso Walmart shooting.

"The repeated cries of an invasion, which is a dog whistle for the great replacement theory, the great replacement theory actually was a motivator for a white supremacist who drove to my community and slaughtered 23 people and injured dozens more," she said. "So there's deadly consequences to this kind of hate speech."

In 2023, federal agents encountered the most migrants in Texas in December. For comparison, Nexstar looked at the numbers during the same time frame over the past few years, according to data from U.S. Customs and Border Protection.

CBP's encounter data includes any migrants who were arrested, expelled and or deemed inadmissible into the country.

• December 2023: 149,854 encounters
• December 2022: 148,786 encounters
• December 2021: 100,443 encounters
• December 2020: 40,517 encounters

Texas Supreme Court hears challenge to transgender minor health care ban

The Texas Supreme Court heard a challenge Tuesday morning to a state law that bans transgender children from receiving certain health care options and put doctors' medical licenses in jeopardy for providing those treatments.

Five Texas families with transgender children, as well as three doctors, sued the state in July 2023 to block Senate Bill 14 from taking effect. The law prevents minors from receiving puberty-blocking medication, hormone therapies or surgeries to assist in their gender transition. Texas doctors who provide transition-related healthcare could also lose their medical licenses.

Several LGBTQ+ advocacy and civil rights groups put their support behind the lawsuit.

The families argued the law violates their parental rights to make medical decisions on behalf of their children and that it discriminates against their transgender kids on the basis of sex. The doctors claim the law prevents them from providing the best possible care to transgender patients.

A Travis County district court judge agreed with these claims, ruling the law unconstitutional and issuing a temporary injunction against its enforcement.

However, Texas Attorney General Paxton filed a direct appeal to the Texas Supreme Court, which allowed the law to take effect in September 2023. The state's challenge to the lower court's ruling is now awaits the Supreme Court justices' decision.

Natalie Thompson, who represented the state Tuesday, argued for the court to throw out the temporary injunction and let the law stand. She said the Texas legislature has the authority to regulate medicine, including care related to transgender minors. She also said the Texas Constitution does not define transgender people as a protected class from discrimination and that doctors do not have a constitutional right to offer these kinds of treatment options to children.

"The statute is narrowly tailored to protecting children from interventions that interfere with their growth and development and have irreversible physical effects, all without proven mental health benefit," said Thompson during her opening argument.

A few justices asked Thompson to respond to concerns about whether this law infringes on parents' rights. She responded by saying parents are still allowed to decide whether to accept or decline available care options for their child.

"What Senate Bill 14 does is take certain medical treatments off the table entirely," Thompson said. "That's not an interference with a parent's right. It's not a third party making the decision instead of the parent or the government making the decision instead of the parent."

However, Justice Debra Lehrmann pointedly questioned Thompson over whether she thought medical professionals, and not state lawmakers, are the best decision makers when it comes to providing such care. Thompson said doctors are not entitled to regulate themselves.

"I don't mean constitutional right. I'm talking about the parent's right to depend on that [doctor's opinion]." Lehrmann responded. "Parents again do not have a constitutional right to obtain procedures that are otherwise unlawful. If an adult wouldn't have that right to obtain a medical procedure because it's made unlawful, then parents don't get to veto those same laws on behalf of their children."

Once the state concluded its opening arguments, attorney for the plaintiffs Kennon Wooten took to the lectern in front of the justices to argue on behalf of the families and doctors. She argued for the case to return to the Travis County District Court so that the plaintiffs can conduct a full trial. She said the plaintiffs would like protection from legislation that bans them from accessing critical transition-related care in Texas.

"In attempting to justify Senate Bill 14 in this case, the state has disregarded widely-recognized benefits of the care that Senate Bill 14 bans and the risk of doing nothing to treat gender dysphoria," Wooten said. "It's a serious medical condition that's marked by clinically significant distress and impairment in functioning, and that's arising from a sustained incongruence between one's birth sex and gender identity. If it's left untreated, there are risks of depression, debilitating anxiety, self harm and in some cases suicidality."

In his questioning of Wooten, Justice Jimmy Blacklock expressed skepticism about the court even taking up this topic.

"It's hard for me to see how the court could ever be the appropriate arbiter of what moral and philosophical basis are we going to sort of embed into our law's approach to this issue," Blacklock said. "That seems like that's probably a legislative choice unless the Constitution has taken it away, and I don't see on the face of the Constitution that's done that."

Justice Evan Young asked Wooten if the Texas Constitution protects a parent's right to refuse any transition-related health care, and she responded by saying yes.

"Our position is that this is a parent's choice, the fundamental right to decide," Wooten said. "In this case, what we have is the state defining the right so specifically and as something tethered to the particular treatment at issue. Of course this court has defined the right broadly, as fundamental, as natural, as God-given. If we're going to define it with that much granularity, what we do is we risk death by a thousand cuts of a fundamental right under the Constitution that parents have to make decisions about the care for their children, including the medical care."

The justices' decision is anticipated to come anywhere from weeks to months from Tuesday.

Top Democrats in U.S. Senate race face off on debate stage

The Texas AFL-CIO held what may be the only debate between Democratic candidates running to take on Sen. Ted Cruz, R-Texas, in November. Of the nine candidates on the ballot, three were on the debate stage in Austin on Jan. 28.

Dallas Congressman Colin Allred, San Antonio State Senator Roland Gutierrez and DeSoto State Representative Carl Sherman took the stage, largely united in their policy positions, but differing in strategy.

Nexstar sat down with the debate’s moderators, Texas Signal Media Foundation Executive Director Jessica Montoya Coggins and Dallas Morning News' former Austin Bureau Chief Bob Garrett, to discuss how the debate could affect each candidate’s race.

“This it almost feels like you know, this, this whole election is a bit of an afterthought for some folks,” Coggins said. “So I think this was really a good time for these candidates to make their case.”

Allred, who’s currently leading in the polls and campaign fundraising, leaned on his congressional experience and bipartisan leadership. 

"We have to make sure that we actually beat Ted Cruz in this election. I've got a record of beating long term incumbents who nobody thought could be beaten," Allred said. "It's possible to work across the aisle. I'm the most bipartisan member of the Texas delegation."

Gutierrez is running as the most progressive candidate, staking his campaign largely on gun reform after the deadly school shooting in Uvalde.

"I'm a progressive and I do not apologize for it," Gutierrez said. "That's the way we win in November, not by moving to the middle, but by inspiring every Democrat in this state to go get new voters and go meet these people."

“On the border, Roland Gutierrez is the underfunded, scrappy challenger to the front runner Colin Allred," Garrett explained.

A memorable moment during the debate came when Gutierrez attacked Allred over his vote for a resolution condemning Biden’s “open-border policies.”

“We don’t need to have Democrats throwing our president under the bus,” Gutierrez said. “We don’t need to adopt Trump and Cruz’s causes. We don’t need to build walls. We need comprehensive immigration reform, Congressman.”

Allred responded, calling that a “tough vote.”

“It was a vote that I saw as being about whether or not we stood for the status quo or not,” he said. “The status quo is unacceptable. We do need to have a comprehensive immigration forum.”

“Allred stood very firm in a lot of the attacks that he received from state senator Gutierrez,” Coggins said. “He had a pretty memorable line, noting that, you know, he had union support, Chamber of Commerce support, and he didn't necessarily see, you know, that it was a bad thing that he could tout both of those.”

Gutierrez disagreed.

“You had Gutierrez hammering away saying you can't be for the Chamber of Commerce and be a union guy,” added Garrett. “And that was I think Gutierrez's emblematic of his whole approach to this race, which is to appeal to the progressive wing.”

Sherman, who’s behind in polling and fundraising, argued he is the most experienced candidate and can unify lawmakers.

"I love shaping and crafting policy that comports to humanity that addresses the issues of the people who are not allowed into the room or a seat at the table," Sherman said. “I don't like politics, but I love people. I love the Lord. And I love policy.”

Garrett argues Sherman’s presence did significantly alter the course of the debate.

“He is a pastor. He's older than these two other guys. They were less vitriolic, partly because when you're around Carl Sherman, he's just such a good man,” Garrett said. “I think that that was in a way helpful to Allred because it sort of reduced the tensions and made them all kind of soften their punches.”

The audience of primarily AFL-CIO members was engaged, clapping and cheering on their favorite candidates, which may have helped encourage authenticity from the candidates. 

“It's always hard to tell when you're a moderator, your back is to the audience, but I could definitely tell that the audience was receptive to some of State Senator Gutierrez's attacks,” said Coggins. “Then they also were showing a lot of support for Allred.”

That support eventually resulted in an endorsement from the AFL-CIO for Allred. Gutierrez continues with the possibility that enough undecided voters will swing his way, pushing the race into a run-off. 

Emerson College/Nexstar Media polling found in mid-January that 29% of Democratic primary voters support Allred, a commanding plurality but short of the 50% he needs to avoid a runoff election. The same poll found that Gutierrez holds 7% while State Rep. Sherman clocked in at 2%.

Texas’ primaries will be held March 5. Early voting begins Feb. 20.

Judge denies Paxton request to end whistleblower lawsuit, testimony on hold

Travis County Judge Catherine Mauzy on Wednesday denied the Office of the Attorney General's request to settle a civil lawsuit, brought by former employees claiming wrongful termination, allowing the lawsuit to continue into a possible public trial.

Former top aides to Paxton claim he violated whistleblower protection laws by firing them after they brought allegations of corruption to the FBI. For years, Paxton has attempted to end the lawsuit without a trial and is currently contesting the plaintiffs' efforts to have him answer questions under oath.

"Our clients like to follow the law, unlike Ken Paxton," said TJ Turner, attorney for the whistleblowers. "The court can't enter judgment just on our petition — we have to go in there and prove damages, prove the elements and put on the evidence. The motion for an entry today was improper and premature."

Earlier this month, Paxton's office announced they will no longer contest the lawsuit, effectively accepting whatever judgment the court decides. The OAG explained that halting their defense would save taxpayer money and allow the office to focus on state business.

Paxton's attorneys argued Wednesday their concession should render any further litigation unnecessary.

"Anything else to find a judgment is just make-work to run up attorneys fees," attorney Bill Hefland argued. "There is simply no legitimate reason not to enter the judgment the Office of the Attorney General is conceding."

Hefland argued Paxton has the right to maintain his innocence while conceding to the whistleblowers' accusations. Mauzy called that argument "contradictory."

"Your argument may hold more weight if you didn’t say we stipulate but we deny the allegations," Mauzy told Hefland in court.

Paxton was scheduled to testify under oath Thursday, but a stay issued Tuesday afternoon by the Texas Supreme Court temporarily put off the court-ordered deposition.

The whistleblowers' attorneys argued they must have Paxton's sworn testimony in order to continue fact-finding and determine an adequate settlement payment.

"We need to build and develop a sufficient record so that the next time we're at the legislature, we can show them the evidence and say this is why our plaintiffs are entitled to this judgment," Turner said. "Although the Attorney General is saying they won't contest the facts in our lawsuit, they're still actively denying them. They can't have it both ways."

The Texas Supreme Court is expected to rule on whether plaintiffs can compel Paxton to give a deposition after February. Turner said they would move to hold Paxton in contempt of court if he subsequently refused to be deposed.

"They want their cake and they want to eat it, too, and they want to keep their people off the witness stand," Turner said.