Brian Rogers reports for the Chronicle:
City Attorney Dave Feldman said Wednesday that the city of Houston and Mayor Annise Parker were not given notice before a family district court judge halted a recent policy change extending health and life insurance benefits to city employees in same-sex marriages.
“I’m not even sure how this ended up in family court. This is not a divorce, adoption or custody case,” Feldman said.
The lawsuit, filed Tuesday in Judge Lisa Millard’s court by Jared Woodfill, Harris County’s GOP chairman, claims the policy change violates Houston’s city charter, the state’s Defense of Marriage Act and the Texas Constitution. Millard signed a temporary restraining order late Tuesday, halting the policy change until a Jan. 6 hearing.
Counsel for the Plaintiff, who is also the chair of the Harris County GOP, counters that Family Court is the proper venue because there is a violation of the state Defense of Marriage Act, which is in the Texas Family Code. I haven’t verified this claim. I imagine that the City will attempt to remove this case to federal court.
Plus, the Plaintiff is looking to bring in the big guns–AG Abbott. Recall Abbott intervened in the Texas gay-marriage divorce case.
Woodfill said he hopes the case will pique the interest of Texas Attorney General Greg Abbott, who could intervene in the case.
“Because we are talking about an elected official who has recognized same-sex marriage, in violation of Texas law, I would think that would be an issue the Attorney General’s Office would want to weigh in on,” Woodfill said. As of Wednesday evening, Abbott had not made a statement about the case.
That will be necessary, as Houston is prepared to fight this all the way up.
If the lawsuit makes it over those hurdles, Feldman maintained that the courts would agree that the policy, which affects only three city employees, is legal.
“This is about the rights of individuals under the U.S. Constitution,” Feldman said. “We know this is going to be a long battle, but we intend to defend the city’s policies very aggressively.”
Update: A friend who is a lawyer in town writes, “family courts have same powers as other district courts.”
s. 24.601 of the Texas Code provides for jurisdiction of the family district judges:
Sec. 24.601. JURISDICTION. (a) A family district court has the jurisdiction and power provided for district courts by the constitution and laws of this state. Its jurisdiction is concurrent with that of other district courts in the county in which it is located.
(b) A family district court has primary responsibility for cases involving family law matters. These matters include:
(2) birth records;
(3) divorce and marriage annulment;
(4) child welfare, custody, support and reciprocal support, dependency, neglect, and delinquency;
(5) parent and child; and
(6) husband and wife.
(c) This subchapter does not limit the jurisdiction of other district courts nor relieve them of responsibility for handling cases involving family law matters.
On a related note, wouldn’t it be sad if once again, an important constitutional issue, is decided based on some ancillary issue like standing, or jurisdiction. I hope this doesn’t end the case in two years.