TBJ January 2022
2021: The Year in Review
Government Law
Written by Chelsea A. Mikulencak
2021 was a busy year in Texas courts as they delivered important opinions on Texas’ mandatory bar membership and the governor’s executive orders.
Most State Bar of Texas activities ‘germane’ or ‘constitutionally permissible,’ according to the U.S. Court of Appeals for the 5th Circuit, but Legal Challenges Continue in McDonald v. Longley1,2 Three Texas attorneys sued officers and directors of the State Bar of Texas under 42 U.S.C. § 1983 and alleged that the bar is engaged in political and ideological activities that are not germane to the bar’s interests in regulating the legal profession and improving the quality of legal services.3
On July 2, 2021, the 5th Circuit upheld the constitutionality of the vast majority of the challenged State Bar programs and activities, such as the bar’s CLE and annual meeting programming, diversity initiatives, the Texas Bar Journal, and the bulk of its access to justice initiatives.4
The court determined, however, that certain parts of the State Bar’s and Texas Access to Justice Commission’s legislative efforts were not germane to the bar’s purposes of regulating the legal profession or improving the quality of legal services available to Texans.5 As such, using mandatory dues for those efforts was held to violate the constitutional rights of the plaintiffs.6 The panel also found the bar’s procedures did not provide sufficient notice regarding how dues will be spent.7
On November 24, 2021, the plaintiffs filed a petition for writ of certiorari with the U.S. Supreme Court.8 At the time of this publication, the court had not decided whether it would hear this appeal.
Gubernatorial Executive Order GA-38 Challenged by Medically Vulnerable Children Under ADA Held to be Discriminatory in E.T. v. Morath;9 However, the 5th Circuit Stayed the Ruling10 Executive Order No. GA-38, issued by Texas Gov. Greg Abbott on July 29, 2021, in part prohibited Texas public schools from creating and enforcing mask mandates on their campuses.11 On August 17, plaintiffs challenged this portion of GA-38 under Title II of the Americans with Disabilities Act of 1990, or ADA, and Section 504 of the Rehabilitation Act of 1973, arguing that “because GA-38 denies Plaintiffs equal access to in-person school and prohibits schools from considering mask mandates as a reasonable accommodation for students with disabilities who are at greater risk of contracting COVID-19 or suffering severe illness as a result of the virus, and that GA-38 is preempted by the A[merican] R[escue] P[lan] Act.”12
On November 10, 2021, the U.S. District Court for the Western District of Texas (Austin Division), held that Abbott’s executive order prohibiting mask mandates statewide discriminated against public school students with disabilities and health conditions who are more susceptible to severe COVID-19 because “GA-38 violates Plaintiffs’ rights under the ADA and Section 504 and is preempted by the ADA, Section 504, and the ARP Act.”13 The court permanently enjoined the executive order.14
Defendants appealed the decision to the 5th Circuit. On December 1, 2021, the 5th Circuit stayed the Western District Court’s order, reasoning that the injunction was overbroad15 and that it is untrue that “GA-38 renders it a ‘physical impossibility’ for schools to comply with the ADA or the Rehabilitation Act, or that GA-38 ‘would disturb, interfere with, or seriously compromise the purposes of either law. . . . Therefore, it was likely erroneous for the district court to hold that GA-38 was preempted by either the ADA or the Rehabilitation Act.”16 At the time of this publication, the 5th Circuit’s decision had not yet been appealed.
CHELSEA A. MIKULENCAK is a research attorney at Jackson Walker. She is a former assistant city attorney for the city of San Antonio and an associate attorney at the Law Offices of Ryan Henry, where she exclusively practiced municipal law for nearly five years. Mikulencak advised municipal entities on open records, open government, First Amendment law, elections, state and federal executive orders, and more.
