Opinion
No. 21-0262
12-30-2022
Don ZIMMERMAN, Petitioner, v. CITY OF AUSTIN ; and Spencer Cronk, in his Official Capacity as City Manager of the City of Austin, Respondents
Emily Kebodeaux Cook, for Amici Curiae Conservative Republicans of Texas, Assembly of Yahweh (7th Day) of Cisco, Texas, Mountain Top Church of Cisco, Texas, U.S. Pastor Council, West Texas for Life, Canopy Global Foundation, West Texans for Life, Young Conservatives of Texas at Texas Tech, Tea Party Patriots of Eastland County, Southern Baptists of Texas Convention, Project Destiny Lubbock, Raiders Defending Life at Texas Tech, Texas Eagle Forum, Human Defense Initiative, Students for Life Action, Christ Fellowship Church of Big Spring, Texas, Trandem, Karysse, Mark Lee Dickson, Texas Values, Rio Grande Valley Prolife Apostolate, Grassroots America - We The People, True Texas Project, Texas Young Republican Federation, Texas Family Defense Committee, Right to Life of East Texas, Students for Life of America. Laurellen Ratliff, Anne L. Morgan, Austin, Hannah M. Vahl, Meghan L. Riley, for Respondents. Heather Gebelin Hacker, Jay Alan Sekulow, Laura B. Hernandez, for Amici Curiae American Center for Law and Justice, American Association of Pro-Life Obstetricians and Gynecologists, University Faculty for Life, Charlotte Lozier Institute, National Right to Life, Family Research Council, American Values, Human Coalition, Americans United for Life, CatholicVote.org Education Fund, Susan B. Anthony List. Thomas Brejcha, Charles W. Fillmore, Fort Worth, Jonathan F. Mitchell, H. Dustin Fillmore III, Fort Worth, Martin Whittaker, for Petitioner. Jerri Lynn Ward, Lakeway, Gene P. Hamilton, for Amicus Curiae America First Legal Foundation. LaDawn Nandrasy, Emily Kebodeaux Cook, for Amicus Curiae Texas Right to Life. Chance Dean Weldon, Austin, Munera Al-Fuhaid, Autumn Patterson, Robert Earl Henneke, Kerrville, for Amicus Curiae Texas Public Policy Foundation. Briscoe Cain III, Douglas Bryan Hughes, for Amicus Curiae Phelan, Dade.
Emily Kebodeaux Cook, for Amici Curiae Conservative Republicans of Texas, Assembly of Yahweh (7th Day) of Cisco, Texas, Mountain Top Church of Cisco, Texas, U.S. Pastor Council, West Texas for Life, Canopy Global Foundation, West Texans for Life, Young Conservatives of Texas at Texas Tech, Tea Party Patriots of Eastland County, Southern Baptists of Texas Convention, Project Destiny Lubbock, Raiders Defending Life at Texas Tech, Texas Eagle Forum, Human Defense Initiative, Students for Life Action, Christ Fellowship Church of Big Spring, Texas, Trandem, Karysse, Mark Lee Dickson, Texas Values, Rio Grande Valley Prolife Apostolate, Grassroots America - We The People, True Texas Project, Texas Young Republican Federation, Texas Family Defense Committee, Right to Life of East Texas, Students for Life of America.
Laurellen Ratliff, Anne L. Morgan, Austin, Hannah M. Vahl, Meghan L. Riley, for Respondents.
Heather Gebelin Hacker, Jay Alan Sekulow, Laura B. Hernandez, for Amici Curiae American Center for Law and Justice, American Association of Pro-Life Obstetricians and Gynecologists, University Faculty for Life, Charlotte Lozier Institute, National Right to Life, Family Research Council, American Values, Human Coalition, Americans United for Life, CatholicVote.org Education Fund, Susan B. Anthony List.
Thomas Brejcha, Charles W. Fillmore, Fort Worth, Jonathan F. Mitchell, H. Dustin Fillmore III, Fort Worth, Martin Whittaker, for Petitioner.
Jerri Lynn Ward, Lakeway, Gene P. Hamilton, for Amicus Curiae America First Legal Foundation.
LaDawn Nandrasy, Emily Kebodeaux Cook, for Amicus Curiae Texas Right to Life.
Chance Dean Weldon, Austin, Munera Al-Fuhaid, Autumn Patterson, Robert Earl Henneke, Kerrville, for Amicus Curiae Texas Public Policy Foundation.
Briscoe Cain III, Douglas Bryan Hughes, for Amicus Curiae Phelan, Dade.
PER CURIAM In September 2019, the City of Austin approved a budget for its upcoming fiscal year that allocated $150,000 to fund entities "providing or facilitating logistical and support services for Austin residents seeking abortion care." The next day, Don Zimmerman, an Austin resident, sued the City and its City Manager, alleging that "providing taxpayer money to abortion-assistance organizations" violated Texas law. Zimmerman asserted that Article 4512.2 of the Revised Civil Statutes was never repealed by the Legislature and remained enforceable despite Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
We refer to defendants collectively as "the City."
Article 4512.2 states: "Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice." Tex. Rev. Civ. Stat. art. 4512.2. The preceding subsection, Article 4512.1, states that any person who "procure[s] an abortion" shall be subject to criminal punishment. Id. art. 4512.1.
Zimmerman separately alleged that the City's allocation violates the Gift Clause in Article III, Section 52(a) of the Texas Constitution. Zimmerman sought a declaration that the proposed expenditures violate Texas law and the Constitution, as well as an injunction prohibiting the City from making these expenditures in the future and requiring the City to "claw back" all expenditures already made.
The Gift Clause states:
Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company. However, this section does not prohibit the use of public funds or credit for the payment of premiums on nonassessable property and casualty, life, health, or accident insurance policies and annuity contracts issued by a mutual insurance company authorized to do business in this State.
Tex. Const. art. III, § 52 (a).
The City filed a plea to the jurisdiction. It argued that (1) Zimmerman, a private citizen, lacks standing to sue to enforce a criminal statute, and (2) Roe rendered Article 4512.2 void and without effect. The City also argued that Zimmerman's claim under the Gift Clause is not ripe because no expenditure from the fund has been made to any organization. Finally, the City contended that Zimmerman's claims should be dismissed because the City is not a proper party and because Zimmerman's request for an injunction to "claw back" expenditures is an impermissible claim for retroactive relief.
Following a hearing, the trial court granted the City's plea to the jurisdiction without explaining its reasons. It dismissed with prejudice Zimmerman's claim that the City's budget violates Texas law, and it dismissed without prejudice Zimmerman's claim that the budget violated the Gift Clause.
Zimmerman appealed, and the court of appeals affirmed. 620 S.W.3d 473 (Tex. App.—El Paso 2021). Zimmerman then petitioned this Court for review. We requested briefs on the merits; after briefing was complete, the United States Supreme Court issued its opinion in Dobbs v. Jackson Women's Health Organization , ––– U.S. ––––, 142 S. Ct. 2228, 213 L.Ed.2d 545 (2022). We asked the parties for supplemental briefing on the effect of Dobbs on this appeal. The City responded, contending that Zimmerman's main issue—whether Article 4512.2 was enforceable after Roe —is now moot. The City thus argues that we should dismiss the case or, alternatively, remand to the trial court. Zimmerman, for his part, argues the appeal is not moot because he seeks costs and attorney's fees under the Uniform Declaratory Judgments Act.
The court of appeals relied on the Supreme Court's holding in Roe to conclude that Zimmerman's claim could not proceed. See 620 S.W.3d at 486. As Dobbs has now overruled Roe , we conclude the best approach is to vacate the lower courts’ judgments and remand the case to the trial court to address in the first instance the effect of this change in the law—and the effect of any intervening factual developments—on Zimmerman's claims. See TEX. R. APP. P. 60.2(f). The court should also address the City's contention that the case is now moot.
Without hearing oral argument, see TEX. R. APP. P. 59.1, we grant Zimmerman's petition for review without regard to the merits, vacate the judgments of the court of appeals and the trial court, and remand the case to the trial court for further proceedings.