Texas Attorney General Ken Paxton has a lot of time on his hands these days. For a couple of years, he seemed to spend more of his workday defending himself than defending the state. He faced state security charges, he was the subject of a whistleblower lawsuit by fired OAG employees, and he was impeached by the Texas House of Representatives. Now, he’s been acquitted of the impeachment charges by the Texas Senate along more or less partisan lines; he’s reached a plea deal on the securities charges, having the charges dismissed in exchange for paying $300,000 in restitution and (what will likely be a novel experience for him) doing 100 hours of community service; and he’s defeated efforts by the fired employees to depose him in a whistleblower lawsuit by agreeing to abide by whatever judgment the court entered, including generously recommending that the Legislature appropriate upwards of $3,000,000 in taxpayer funds to settle the whistleblower claims. It is true that the FBI supposedly has its own open file on the securities investigation, but, given Paxton’s long-standing bromance with the President, it’s hard to see that one going anywhere. 

Having cleared his personal docket, without the burden of an ankle bracelet, Paxton is now turning again to what he seems to enjoy best: harassing ordinary folks that want to do a bit of good in their neighborhoods. His attempts to secure the records of Catholic relief agencies on the border have been consistently blocked by the local trial courts, in part because many of the agencies have substantially complied with the record requests voluntarily, and in part because the investigations are, as one lawyer put it “fishing expeditions in a pond with no fish.” Now Mr. Paxton’s office has come up with the theory that these agencies are aiding and abetting violations of federal immigration law, or even violating state counterparts of those laws, so he has filed lawsuits to compel the agencies to appear for oral depositions (the very thing he refused to do in the whistleblower lawsuit against him.)

In El Paso, he’s sunk to a new low. Annunciation House is a Catholic relief agency dedicated to serving newly arrived immigrants, regardless of their legal status. As he has in other places, the Office of the Attorney General sought without prior notice to rummage through the books and records of Annunciation House.  That agency did produce a substantial number of documents but also raised legal objections to the broad nature of the requests, and when the OAG persisted, asked the local district court for protection. In response, Mr. Paxton’s office asked the court to judicially terminate Annunciation House’s corporate charter by virtue of these alleged violations (of which it had no evidence). The trial court not only dismissed that request, it also held that the statute on which the State relied was both unconstitutionally vague and also infringed on Annunciation House’s constitutional right of freedom of religion (as well as violating the Texas Religious Freedom Restoration Act.) The Attorney General took an appeal directly to the Texas Supreme Court.

The briefs, which you can find on the Supreme Court’s website via this link, discuss a number of topics that not even a lawyer would love: theories of “facial” versus “as applied” statutory unconstitutionality, federal pre-emption, the elements of quo warranto remedy, ultra vires acts, as well as some more interesting ones: the differences between “sheltering” and “harboring” for instance. In the middle of the State’s brief, however, you find this eyebrow – raising statement: 

Rather than attempt to meet that burden, Annunciation House has merely asserted that it “practices the Catholic faith by providing hospitality to refugees” and that its closure would “obviously place a substantial burden on its free exercise of religion, by altogether preventing any exercise.” … At the same time, Annunciation House’s House Director testified that Annunciation House (i) goes periods of “nine months, ten months” without offering Catholic Mass, (ii) does not offer confessions, baptisms, or communion, and (iii) makes “no” efforts to evangelize or convert its guests to any religion. 

In other words, claims the state, religion, religious belief, and religious service consist of what you do within the four walls of a church.

Annunciation House, not surprisingly, jumped all over that in its brief:

Annunciation House, Inc., is an almost 50-year-old nonprofit religious organization founded by Catholic individuals after they prayed and reflected on how they could be of service to the poor as the Gospel commands…They recognized refugee families in El Paso as those most in need…Their mission to focus on refugee families is firmly rooted in the Old and New Testaments…Matthew 25:35-36; Luke 10:25-37; Deuteronomy 10:18-19; Exodus 22:21; Hebrews 13:2. This mission puts into practice the central tenant of Christianity, that we love one another. Annunciation House’s founders were inspired to put the Bible’s words into action by Mother Teresa, who came to El Paso in 1976 at their invitation. (References to the trial court record omitted.)

The Texas Supreme Court heard oral argument on January 16. Right off the bat, the justices pushed back on the state’s restrictive notion of religion. One minute into the state’s presentation, Justice Lehrmann asks a direct question: “Do you disagree that this is religious activity?” Justice Boyd follows up: “If it is religious activity, how could (the state’s action) not substantially hinder it?” And, finally, Justice Bland poses this hypothetical:

If a citizen encounters a person on the side of the road that’s sleeping in the street and the person says I crossed the border illegally and the person the citizen takes the non-citizen to a local hotel and they say “Innkeeper would you please provide this person a room, here’s some money to provide it, has that citizen violated state or federal law?

Ryan Baasch, the assistant AG representing the state, never answers the question: he says that the innkeeper hasn’t violated the law, then he says that perhaps the citizen has, depending on the facts, and then finally says, that’s a really hard question. (You can also watch the oral argument here. This line of questioning starts at about the two-minute mark.) 

The reason it’s a hard question for Mr. Baasch to answer is that there’s no answer to it that benefits the state. If he says that the citizen is innocent, then the question arises why Annunciation House is guilty. If he says the citizen is guilty, then he makes simple acts of kindness a crime. Mr. Paxton’s office intentionally mischaracterizes what religion is, even ignoring the definition in the state’s Religious Freedom Restoration Act: “’free exercise of religion’ means an act or refusal to act that is substantially motivated by sincere religious belief…It is not necessary to determine that the act or refusal to act is motivated by a central part or central requirement of the person’s sincere religious belief.” The state’s argument that religious activity is limited to a set of liturgical practices was one that merited slapping. 

There is no doubt that Annunciation House carries out a public purpose. They do so in fact; one of the ironies of the state’s position is that the federal government uses Annunciation House to house refugees waiting for the next step in the immigration process. Annunciation House acts in the public interest under any basic understanding of the common good. If governments have any purpose at all, it is to respond to anyone that is in danger of dying because of the lack of food, shelter, basic medical care. As the attorney for Annunciation House noted in oral argument, aside from the moral obligation, how is it in anyone’s interest to have refugees sleeping on the streets of El Paso?

But, as Oliver O’Donovan points out, every political act, whether a legislative enactment or an administrative program or a judicial decision is an act of judgment, in two distinct ways. First, it passes judgment on a state of affairs, either specific (as in the case of Annunciation House) or general (as in either the enactment or repeal of the DACA program.) In so doing, however, the government (legislature, agency, or court) also passes judgment on itself. It says “I believe that the world should be like this rather than that.” So when Paxton and Company seek to shut down Annunciation House, and rattle their administrative sabres at wary volunteers, and attack the DACA program in the Fifth Circuit, they say “I am the kind of person who believes that El Paso would be a better place if undocumented refugees were sleeping on the streets.” Or “We are the type of people who believe that the State owes no obligation of public services to undocumented migrants simply because of their immigration status, and that the state of Texas is the victim, not the protector, of Dreamers.” 

Dean William Prosser, the author of the classic textbook on torts for American law schools, had this to say about Good Samaritan laws (laws that protect volunteers in emergency circumstances): without them “the Good Samaritan who tries to help may find himself mulcted in damages, while the priests and the Levites who pass by on the other side go on their cheerful way rejoicing.” (Judge Bland apparently was paying attention in torts class that day.)  When the trial judge in El Paso rejected the OAG’s claim, he also said “that is not who I am, and that is not who the people I serve are.” I am a Samaritan, not a Levite. The judges of the Texas Supreme Court have the chance to declare who they are. And, eventually, we may be put to the test as a nation. Robert W. Heimburger, in his God and the Illegal Alien, suggests a connection between Yhwh’s dispossession of Heshbon and Bashan and those cities’ mistreatment of the migrant Hebrews, who only asked for safe passage. There’s been a lot of economic analysis about the negative impact that a wholesale exclusion and removal of undocumented persons will have on the economy. Heimburger suggests that may be the least of our worries.

O’Donovan says “Our judgment, therefore, can be said to judge truthfully when, within the limits of human understanding, we judge of a thing as God has judged of it.” As we watch the fate of Annunciation House play out, I suggest we contemplate how God would judge of all the parties, and their lawyers, in this sad, sorry episode.