Bay Area Unitarian Universalist Church v. Paxton

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT August 27, 2021

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

BAY AREA UNITARIAN §

UNIVERSALIST CHURCH, et al., §

Plaintiffs, :

v. □ CASE NO. 4:20-CV-3081

KEN PAXTON, et al. :

Defendants. :

ORDER

Pending before the Court are motions to dismiss filed by Kim Lemaux, Ken Paxton, Ed

Gonzalez, Kim Ogg, Vince Ryan, Art Acevedo, and Pete Bacon. (Instruments No. 28; No. 38;

No. 42; No. 52).

A.

This civil rights action arises from Plaintiffs’ objection to the enforcement of two Texas

statute provisions, Texas Penal Code § 30.06 and § 30.07. (Instrument No. 1 at 2).

1.

Plaintiffs Bay Area Unitarian Universalist Church (“Bay Area Church” or the “Church”),

Drink Houston Better, LLC d/b/a Antidote Coffee (“Antidote Coffee”), and Perk You later, LLC

(“Perk You Later”) are located in Harris County (collectively, “Plaintiffs”). (Instrument No. 1 at

4). Bay Area Church is a Unitarian Universalist church located on the border of the Cities of

Houston and Webster. Jd Bay Area Church has approximately 225 official members and

numerous non-members that attend the Bay Area Church’s services and events. (Instrument No.

1 at 17). Antidote Coffee is a small shop in Houston that serves coffee, wine, and ice cream. Id.

at 4. Perk You Later owns the building in which Antidote Coffee is located and is owned by the

same entity as Antidote Coffee. Id.

Plaintiffs file suit against the following individuals in their official capacities: Attorney

General for the State of Texas, Ken Paxton and Presiding Officer for the Texas Commission on

Law Enforcement, Kim Lemaux (collectively, “Texas Officials”); District Attorney for Harris

County, Kim Ogg; County Attorney for Harris County, Vince Ryan, and County Sheriff for

Harris County, Ed Gonzalez (collectively, “Harris County Officials”); Acting Chief of Police for

the City of Webster Police Department, Pete Bacon (“Chief Bacon”); and Chief of the Houston

Police Department, Art Acevedo (“Chief Acevedo”) (collectively, ““Defendants”). (Instrument

No. 1 at 4-5).

2.

Under Texas’s General Trespass Law, Texas Penal Code § 30.05, “A person commits an

offense if the person enters or remains on or in property of another . : . without effective consent”

and the person (1) “had notice that the entry was forbidden” or (2) “received notice to depart but

failed to do so.” Tex. Penal Code § 30.05. Section 30.05 states that a property owner may

provide notice in numerous ways, including by oral or written communication, an enclosure that

is obviously designed to exclude, and a sign that is reasonably likely to come to the attention of

_the intruders. See id. at § 30.05(b)(2). A violation of the General Trespass Law results in a Class

B or C misdemeanor, and can result in a Class A misdemeanor if the trespasser carries a deadly

weapon during the commission of the offense. Id. at § 30.05(d)(3)(C).

In 2003, an exception to the General Trespass Law was carved out. Specifically, the Law

states that it is a defense to prosecution if a person is forbidden from entering the property

because entry with a handgun was forbidden. Jd. at § 30.05(£). In 2003, the exception applies to

those who carried a concealed handgun with a permit. Jd.; (Instrument No. 1 at 7). In 2015, the

exception expanded to exclude a person openly carrying a handgun “in a shoulder or belt

holster.” Tex. Penal Code § 30.05; (Instrument No. 1 at 7).

Following these exceptions, Texas Penal Code § 30.06 and § 30.07 (collectively, the

“Acts”) were enacted to create trespass crimes for those exempted under § 30.05(f). Section

30.06 (“Concealed Carry Trespass Law”) covers concealed handgun license holders and Section

30.07 (“Open Carry Trespass Law’) covers open-carry handgun license holders. Tex. Penal

Code §§ 30.06, 30.07.

Under the Concealed Carry Trespass Law, a person commits an offense if the person

carries a concealed handgun on the property of another without consent and receives notice by

oral or written communication that the concealed handgun was forbidden. Tex. Penal Code §

30.06. “Written communication” means:

(A) acard or other document on which is written language identical to the

following: “Pursuant to Section 30.06, Penal Code (trespass by license holder

with a concealed handgun), a person licensed under Subchapter H, Chapter

411, Government Code (handgun licensing law), may not enter this property

with a concealed handgun”; or

(B) —asign posted on the property that:

i. includes the language described by Paragraph (A) in both English

and Spanish;

ii. appears in contrasting colors with block letters at least one inch in

height; and

iii. is displayed in a conspicuous manner clearly visible to the public.

Tex. Penal Code § 30.06(c)(3). The Open Carry Trespass Law includes the same definition of

“written communication,” however, the sign posted on the property must also be “displayed in a

conspicuous manner clearly visible to the public at each entrance to the property.” Tex. Penal

Code § 30.07(c). These statutes only encompass handguns. Therefore, if property owners want to

also exclude other types of guns, Plaintiffs allege that they must post a third sign under the

General Trespass Law. (Instrument No. 1 at 9). Additionally, the signs under the statutes are not

free; the cost to produce the signs must be incurred by the property owners. /d. at 16.

3.

Bay Area Church’s official policy forbids carrying firearms—open or concealed—onto

the Church’s property. Jd. However, Bay Area Church currently only displays the open carry

signs in English and Spanish in accordance with the Open Carry Trespass Law. Jd. at 18. The .

Church only displays signs pursuant to the Open Carry Trespass Law because the Church alleges

that having signs under both laws would take up too much space on the doorways and would be

too obtrusive. (Instrument No. | at 18). The Church alleges that the signs are eighteen inches by -

twenty-four inches. Id. Bay Area Church paid $111.80 for these signs. Jd The signs are

displayed at the front and side entrances to the building. Jd. The Church alleges that the signs

detract from its core religious tenets, namely addressing conflict through non-violence, □

communication, love, and compassion. Jd. at 19. Greeters of the Church are trained to ask a

person with a firearm to leave the firearm outside, but only if the greeter feels comfortable doing

so. Id. at 19. If not, the greeters are instructed to immediately call 911. Id.

Antidote Coffee objects to guns being on its property because it believes that the presence

of guns would create an unsafe environment for their customers, which includes adults, children,

and families. (Instrument No. 1 at 20). Prior to 2016, Antidote Coffee displayed a pictograph

sign with a picture of a gun enclosed in a red circle with a red diagonal through it. Jd. at 20. The

sign measured three inches by three inches. Id. Since 2016, Antidote Coffee posted both sets of

signs required under § 30.06 and § 30.07. Jd. Plaintiffs allege that the signs cover a large portion

of the windowpane next to the front door and frustrate the desired “neighborhood coffee shop” □

aesthetic. Plaintiffs further allege that these signs force Antidote Coffee to make a “bold political

statement” regarding guns. Jd. Antidote Coffee has installed these signs on two occasions. Jd.

The first time, Antidote Coffee paid $70 for the signs and $90 for the signs to be installed on the

window. Jd. The second time, Antidote Coffee paid approximately $100 for the signs. Jd. The §

30.06 signs measure approximately thirteen inches by twenty-two inches, and the § 30.07 signs

measure approximately eighteen inches by twenty-two inches. Jd. at 21. Altogether, the signs

measure approximately ten square feet. Jd.

Plaintiffs allege that the signs have occasionally bothered customers. Plaintiffs allege that

a customer once wrote about Antidote Coffee on an online forum dedicated to the Acts, stating,

“T guess J have to go somewhere else for coffee.” Jd. Plaintiffs also allege that, on at least two

occasions, patrons have entered the premises with handguns and refused to leave despite the

signs and being asked to leave by staff members. Jd.

B.

On September 2, 2020, Plaintiffs filed their Complaint. (Instrument No. 1). Plaintiffs

assert the following claims: (1) violation of their First Amendment free speech right; (2)

violation of their First Amendment free association right; (3) violation of Texas Constitution,

Article 1, § 8; and (4) due process violation under the Fifth and Fourteenth Amendments.

(Instrument No. | at 26-29).

On November 18, 2020, the Texas Officials filed their Motion to Dismiss. (Instrument

No. 28). On December 7, 2020, Harris County Officials filed their Motion to Dismiss.

(instrument No. 38). On December 15, 2020, Chief Acevedo filed his Motion to Dismiss.

(Instrument No. 42). On January 4, 2021, Chief Bacon filed his Motion to Dismiss. (Instrument

No. 52).

On January 15, 2021, Plaintiffs filed their consolidated response to all the motions.

(instrument No. 57). On February 4, 2021, the Texas Officials filed their Reply. (Instrument No.

59). On February 5, 2021, Defendant Art Acevedo filed his Reply. (Instrument No. 60). On

February 12, 2021, Bacon filed its Reply. (Instrument No. 62). .

Il.

“A case is properly dismissed for lack of subject matter jurisdiction when the court lacks

the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc.

v. City of Madison, Miss., 143 F.3d 1006, 1010 (Sth Cir. 1998) (internal quotation omitted). A

district court may dismiss an action for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1) on any one of three separate bases: (1) the complaint alone, (2) the

complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts. Ramming □□□

United States, 281 F.3d 158, 161 (Sth Cir. 2001) (citing Barrera-Montenegro v. United States, 74

F.3d 657, 659 (Sth Cir. 1996)).

In examining a Rule 12(b)(1) motion, courts are empowered to consider matters of fact

which are in dispute. See Williamson v. Tucker, 645 F.2d 404, 413 (Sth Cir. 1981) (noting that

district courts determining jurisdiction may hear conflicting written and oral evidence and decide

for itself the factual issues). Any uncontroverted facts in the complaint must, however, be

accepted as true. See Gaubert v. United States, 885 F.2d 1284, 1285 (Sth Cir. 1989), rev’d on

other grounds, 499 U.S. 315 (1991). The court must also construe the complaint broadly and

liberally, although argumentative inferences favorable to the pleader will not be drawn. Jd. When

the court’s subject matter jurisdiction is challenged, the party asserting jurisdiction bears the

burden of establishing it. Life Partners Inc. v. United States, 650 F.3d 1026, 1029 (Sth Cir.

2011).

When a Rule 12(b)(1) is filed in conjunction with other Rule 12 motions, the court should

usually consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the

merits. Ramming, 281 F.3d at 161. This prevents a court without jurisdiction from prematurely

dismissing a case with prejudice. Jd. The court’s dismissal of a plaintiffs case because of lack of

subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff

from pursuing a claim in a court that does have proper jurisdiction. Jd.

A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction should be

granted only if it appears that the plaintiff cannot prove any set of facts in support of his claim

that would entitle him to relief. Ramming, 281 F.3d at 161.

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). The complaint need not contain “detailed factual allegations,” but it must include “more

than an unadomed, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

US. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

When a complaint does not meet the pleading requirements of Rule 8, Rule 12(b)(6)

authorizes dismissal of a civil action for “failure to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(6)(6). To survive a motion to dismiss, the complaint must articulate

“the plaintiffs grounds for entitlement to relief—including factual allegations that when

assumed to be true ‘raise a right to relief above the speculative level.’” Cuvillier v. Taylor, 503

F.3d 397, 401 (Sth Cir. 2007) (quoting Twombly, 550 U.S. at 555). Stated otherwise, in order to

withstand a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 570); Turner v. Pleasant, 663 F.3d 770, 775 (Sth Cir. 2011). A claim for

relief is plausible on its face “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678; Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 148 (Sth Cir. 2010).

When ruling on a 12(b)(6) motion, the Court may consider “the complaint, its proper

attachments, documents incorporated into the complaint by reference, and matters of which a

court may take judicial notice.” Wolcott v. Sebelius, 635 F.3d 757, 763 (Sth Cir. 2011) (internal

citations and quotations omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 322 (2007). The Court does not resolve any disputed fact issues. Smith v. Reg’l Transit

Auth., 756 F.3d 340, 347 (Sth Cir. 2014). Instead, the Court assumes all well-pleaded facts

contained in the complaint are true. Wolcott, 635 F.3d at 763. The Court will not, however,

“accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”

Great Lakes Dredge & Dock Co. LLC y. La. State, 624 F.3d 201, 210 (Sth Cir. 2010) (internal

quotation omitted). Similarly, legal conclusions masquerading as factual conclusions need not be

treated as true. Blackburn v. City of Marshall, 42 F.3d 925, 931 (Sth Cir. 1995); see also Iqbal,

556 U.S. at 678. Although all well-pleaded facts are viewed in the light most favorable to the

plaintiff, Turner, 663 F.3d at 775; Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009), the Court

“will not strain to find inferences favorable to the plaintiff.” Dorsey v. Portfolio Equities, Inc.,

540 F.3d 333, 338 (Sth Cir. 2008) (internal citations and quotations omitted). Therefore, to avoid

a dismissal for failure to state a claim, a plaintiff must plead specific facts. Dorsey, 540 F.3d at

338.

Ii.

Defendants each seek to dismiss Plaintiffs’ claims for lack of subject matter jurisdiction

and for failure to state a claim. See generally (Instruments No. 28; No. 38; No. 42; No. 52).

A.

Turning to the 12(b)(1) motions first, Defendants each move to dismiss Plaintiffs’ claims

for lack of standing. (Instruments No. 28 at 13; No. 38 at 4; No. 42 at 4; No. 52 at 11). City of

Houston Officials, Chief Acevedo, and Chief Bacon also move to dismiss Plaintiffs’ claims for

lack of ripeness. (Instruments No. 38 at 7; No. 42 at 7; No. 52 at 19).

Article III of the United States Constitution limits the jurisdiction of federal courts to

“cases” and “controversies” between the plaintiff and defendant. See Warth v. Seldin, 422 U.S.

490, 498 (1975); Sample v. Morrison, 406 F.3d 310, 312 (Sth Cir. 2005). To determine if an

issue meets the case-or-controversy requirement, courts have developed justiciability doctrines

such as standing and ripeness. See Sample, 406 F.3d at 312.

1.

Defendants contend that Plaintiffs lack standing to bring their claims. (Instruments No.

28 at 13; No. 38 at 5; No. 42 at 4; No. 52 at 12).

“(Tyhe question is whether the person whose standing is challenged is a proper party to

request an adjudication or a particular issue and not whether the issue itself is justiciable.” Flast

v. Cohen, 392 U.S. 83, 99-100 (1968). To establish standing, the party invoking federal

jurisdiction bears the burden of proving “an invasion of a legally protected interest.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff must establish (1) that he or she

suffered an injury in fact, which is (2) fairly traceable to the defendant’s conduct, and (3) will be

redressed by a favorable decision. See Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC),

Inc., 528 U.S. 167, 180-81 (2000).

i.

Defendants generally assert that Plaintiffs do not suffer a sufficient injury because their

harms are hypothetical and not particularized, concrete, or imminent. (Instruments No. 28; No.

38; No. 42; No. 52).

To establish standing, a plaintiff must assert an injury in fact. See Laidlaw, 528 U.S. at

180. An injury in fact is a legally protected interest that is (a) concrete and particularized and (b)

actual or imminent, not hypothetical or conjectural. See Laidlaw, 528 U.S. at 180. The injury in

fact must be the result of the statute’s actual or threatened enforcement, either in present day or

in the future. See California v. Texas, 141 S. Ct. 2104, 2114 (2021); Babbitt v. United Farm

Workers Nat'l Union, 442 U.S. 289, 298 (1979) (“A plaintiff who challenges a statute must

demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or

enforcement.”).

Plaintiffs argue that their injuries arise from being forced to make a choice between a

benefit and their constitutional rights. (Instrument No. 57 at 17). Plaintiffs contend that they must

forfeit either their right to exclude others or their First Amendment free speech right.

Specifically, Plaintiffs assert that if they do not comply with the Acts’ heightened notice

requirements, they are unable to exclude licensed handgun carriers with the support of police

protection and the threat of criminal prosecution. Conversely, if Plaintiffs comply with the

heightened notice requirements, Plaintiffs argue that their free speech right is violated. Jd Both

choices, Plaintiffs assert, are injurious. Jd.

10

Texas Officials raise several arguments as to why Plaintiffs fail to establish injury in fact.

Texas Officials first argue that Plaintiffs’ injuries are self-inflicted. (Instrument No. 28 at 13-14).

Standing is not typically conferred by a self-inflicted injury. See Zimmerman v. City of Austin,

881 F.3d 378, 389 (Sth Cir. 2018). In the First Amendment context, however, self-censorship can

give rise to a cognizable constitutional injury if the fear of harm is not “imaginary or wholly

speculative.” See Zimmerman, 881 F.3d at 390 (internal quotations omitted). The fear must relate

to a specific present objective harm or a threat of specific future harm. Glass v. Paxton, 900 F.3d

233, 239 (Sth Cir. 2018) (internal citations omitted). Allegations of a subjective chilling of

speech is not enough. /d

Texas Officials specifically contend that Plaintiffs’ injuries stem from their voluntary

decisions to post the “no gun” signs under the Acts, which is an impermissible subjective First

Amendment injury. (Instrument No. 28 at 13-14). Texas Officials contend that Plaintiffs’ case is

akin to Glass. (Instrument No. 28 at 17-18). In Glass, the Fifth Circuit held that the professor did

not have standing when she self-censored her speech for fear of inciting concealed-carrying

students and being disciplined by the university. See Glass, 900 F.3d at 240-42.

However, here, Plaintiffs’ injury is distinguishable from that in Glass as it does not arise

out of self-censorship. Plaintiffs contend that they are harmed by complying with the heightened

notice requirements or, in the alternative, relinquishing police protection if they refuse to

comply. (Instrument No. 57 at 23). Plaintiffs argue that this heightened notice requirement with

which they must comply is compelled government speech. This harm is distinct from the self-

imposed censorship for fear of inciting handgun carriers in Glass. Because Plaintiffs’ injuries

arise from the alleged compulsion of speech, not the self-imposed censorship for fear of inciting

handgun carriers, Plaintiffs’ injuries are distinct from that in Glass.

1]

Texas Officials also argue that Plaintiffs fail to establish an injury sufficient to raise a

First Amendment as-applied and facial challenge to the Acts. (Instrument No. 28 at 19). Texas

Officials do not clearly: state whether this argument relates to their standing challenge or their

Rule 12(b)(6) motion. Jd. Based on the case law cited for support, the Court treats these

arguments as challenges to Plaintiffs’ standing.

First, Texas Officials argue that Plaintiffs fail to raise an as-applied challenge because the

Acts can never be enforced against Plaintiffs and, therefore, the Acts do not apply to Plaintiffs.

(Instrument No. 28 at 19). To establish an as-applied injury, a party must demonstrate that the

-statute has been applied to the party. See Cir. For Individual Freedom v. Carmouche, 449 F.3d

655, 659 (Sth Cir. 2006). While the Acts are not directly enforceable against Plaintiffs, the Acts

enumerate notice requirements that property owners must comply with to gain the protection of

the Acts. See Tex. Penal Code §§ 30.06, 30.07. Property owners must either provide oral or

written notice to all those entering the property to be covered by the Acts. Jd. For written notice,

the property owner must either provide a card with the requisite language to each person entering

the property or post a sign with the requisite language and font size. Jd. Here, the Acts apply to

Plaintiffs as indicated by Plaintiffs’ allegations that they have purchased signs to comply with the

notice requirements. (Instrument No. 1 at 18-20). Thus, Plaintiffs have established an as-applied

challenge.

Second, Texas Officials also contend that Plaintiffs fail to assert a facial challenge.

(Instrument No. 28 at 19). To establish an injury sufficient to raise a First Amendment facial

challenge, “the challenger must establish that no set of circumstances exists under which the

[statute] would be valid.” United States v. McGinnis, 956 F.3d 747, 752-53 (Sth Cir. 2020)

(citing United States v. Salerno, 481 U.S. 739, 745 (1987)). Facial challenges are generally

disfavored because they depart from the norm of determining the constitutionality of a law as it

applies to different parties and circumstances. See Sabri v. United States, 541 U.S. 600, 609

(2004). “Facial challenges to the constitutionality of statutes should be granted sparingly and

only as a last resort.” McGinnis, 956 F.3d at 752-53 (quoting Serafine v. Branaman, 810 F.3d

354, 365 (Sth Cir. 2016). However, certain First Amendment concerns are “weighty enough” to

overcome the Court’s reticence to consider facial challenges. See Sabri, 541 U.S. 600 at 609-10.

Here, Plaintiffs contend that the Acts are invalid in every circumstance because “[n]o one can be

forced to choose between their First Amendment rights and police protection of property.”

(instrument No. 57 at 28) (emphasis in original). However, Plaintiffs do not provide additional

explanation to support their assertion. Jd The Acts clearly state that property owners may

provide oral notice to those entering the property and no heightened notice is required for the

oral communication. Consequently, in situations where property owners are feasibly able to

provide oral notice to each individual, the Acts do not violate property owners’ First Amendment

rights. Thus, Plaintiffs fail to establish an injury sufficient to give tise to a First Amendment

facial challenge.

Harris County Officials and Chief Bacon contend that Plaintiffs do not suffer an injury in

fact because Plaintiffs are not susceptible to prosecution under the statutes. (Instruments No. 38

at 5; No. 52 at 13). Chief Bacon further asserts that the statutes are enforceable only against

individuals licensed to carry handguns and, therefore, cannot create an injury for Plaintiffs.

(Instrument No. 52 at 13). An injury in fact must be a result of the statute’s enforcement, actual

or threatened. See California v. Texas, 141 S. Ct. 2104, 2114 (2021). Here, Plaintiffs’ alleged

injury results from the Acts’ enforcement. Plaintiffs’ alleged injury is the deprivation of their

free speech right as a result of the Acts’ heightened notice requirements. It is well established

13

that the Government may not deny a benefit to a person on a basis that infringes the person’s

constitutionally protected rights. See Agency for Int’l Dev. v. Alliance for Open Soc. Int'l, Inc.,

570 U.S. 205, 214 (2013). This precedent is not limited to situations where the condition is

actually coercive. Jd. The Acts afford Plaintiffs the right to police protection if a licensed

handgun carrier enters their property and refuses to leave. Plaintiffs must comply with the Acts’

notice requirements in order to receive the benefit of police protection. Without communicating

the message as required, Plaintiffs risk losing police protection against trespassers who violate

the Acts. Thus, Plaintiffs’ injury in fact arises from the enforcement of the Acts.

Texas Officials, Harris County Officials, and Chief Bacon also assert that Plaintiffs are

free to utilize a “simple pictogram or only a few words” without the required language.

(instruments No. 28 at 17-18; No. 38 at 5; No. 52 at 15). While posting noncompliant signs

would forego police protection from the offense of trespass, Texas Officials and Chief Bacon

further argue that Plaintiffs could instead rely on the civil law of trespass. (Instruments No. 28 at

17-18; No. 52 at 15). However, this alternative further affirms the existence of Plaintiffs’ alleged

injuries, which is the denial of police protection and criminal prosecution if Plaintiffs do not

comply with the Acts’ heightened notice requirements. Moreover, civil remedies fail to offer the

‘prophylactic protection that is provided under criminal law. See Cuero v. State, 845 S.W.2d 387,

392 (Tex. Ct. App. 1992). Thus, Plaintiffs have established an injury-in-fact.

ii.

Harris County Officials generally argue that Plaintiffs fail to establish a causal link

between Defendants and the alleged injuries. (instrument No. 38 at 6). Chiefs Acevedo and

Bacon argue that they did not take any action or make any threat to enforce the Acts against

14

Plaintiffs and, therefore, they are not responsible for redressing Plaintiffs’ injuries. (Instruments

No. 42 at 6; No. 52 at 18).

Here, Harris County Officials, Chief Acevedo, and Chief Bacon do not dispute that they

are responsible for enforcing the Acts. See generally (Instruments No. 38; No. 42; No. 52). They

only dispute whether they have enforced the Acts against Plaintiffs. Jd However, it is not

necessary for defendants to have previously enforced the complained-of statute; only for

defendants to have the power to enforce the statute. See Buchanan v. Alexander, 919 F.3d 847,

854-55 (5th Cir. 2019); Okpalobi v. Foster, 244 F.3d 405, 426 (Sth Cir. 2001). Plaintiffs allege

that they cannot rely on law enforcement to protect Plaintiffs from trespassers that violate the

Acts if they do not comport with the Acts’ notice requirements. (Instrument No. 1 at 17). Thus,

because these defendants enforce the Acts that cause the alleged injury, Plaintiffs have satisfied

the traceability requirement.

iii. .

Plaintiffs seek a declaratory judgment that Texas Penal Code § 30.06 and § 30.07 are

unconstitutional and that the affirmative defenses within the Acts are unconstitutionally vague.

(Instrument No. 1 at 29). Plaintiffs also seek to enjoin the enforcement of the Acts’ heightened

notice requirements. Jd. at 30. Chief Bacon, Texas Officials, and Harris County Officials assert

that Plaintiffs’ requested relief fails to satisfy the third and final element of standing,

redressability. (Instruments No. 28 at 18; No. 38 at 6; No. 42 at 5-6; No. 52 at 17).

To establish redressability, the plaintiff must demonstrate that the requested relief will

redress the alleged injury. See Servicios Azucareros de Venezuela, C.A. v. John Deere

Thibodeaux, Inc., 702 F.3d 794, 799-800 (Sth Cir. 2012). A federal court is unable to have

“Jurisdiction to enter a judgment unless it provides a remedy that can redress the plaintiff's

15

injury.” Uzuegbunam vy. Preczewski, 141 S. Ct. 792, 801 (2021). Even if the relief sought cannot

entirely remedy the plaintiffs injury, civil penalties that drastically reduce the injury are

sufficient. See Env’t Texas Citizen Lobby, Inc. v. ExxonMobil Corp., 968 F.3d 357, 372 (Sth Cir.

2020) (holding that the plaintiffs injuries were redressable when Exxon implemented measures

that drastically reduced, though not entirely eradicated, its violations); K.P. v. LeBlanc, 627 F.3d

115, 123 (Sth Cir. 2010) (noting that a plaintiff need not show that a favorable decision will

relieve his every injury). Moreover, equitable relief can only satisfy the redressability

requirement if plaintiff also demonstrates a continuing injury or threatened future injury in fact.

See Stringer v. Whitley, 942 F.3d 715, 720 (Sth Cir. 2019).

Chief Bacon contends that Plaintiffs fail to demonstrate a continuing injury that warrants

injunctive or declaratory relief. (Instrument No. 52 at 17). He further asserts that the requested

equitable relief will not redress Plaintiffs’ injuries because the Acts are not enforceable against

Plaintiffs. (Instrument No. 52 at 18). However, as stated eatlier, though the Acts are not

enforceable against Plaintiffs, Plaintiffs’ alleged injury in fact is having to make a choice

between their First Amendment free speech right and the right to police protection. Because this

harm is caused by the Acts’ notice requirements, and the Acts currently remain in effect, the

harm is a continuing injury. Thus, Plaintiffs’ requested injunctive and declaratory relief can

redress Plaintiffs’ injuries.

Chief Bacon further asserts that Plaintiffs fail to establish a continuing injury because

Chief Bacon would still remove a trespasser from Plaintiffs’ premises even if Plaintiffs failed to

comply with the Acts’ notice requirements. (Instrument No. 52 at 18). However, Plaintiffs need

only establish that the requested relief will redress the alleged injury and, here, equitable relief

16

will remedy Plaintiffs’ alleged constitutional violation. Thus, Plaintiffs satisfy the redressability

element.

Texas Officials and Harris County Officials contend that Plaintiffs fail to satisfy the

redressability element because courts are unable to rewrite statutes or replace the Acts with §

30.05’s more lenient notice requirements. (Instruments No. 28 at 18-19; No. 38 at 6). However,

the cases Texas Officials and Harris County Officials cite to are germane to statutory

interpretation, not whether courts are able to enjoin unconstitutional statutes. See, e.g., Bostock v.

Clayton Cnty, 140 S. Ct. 1731, 1738 (2020) (condemning statutory interpretation that

contravenes the public meaning of terms at the time the statute is enacted); King Ranch, Inc. v.

United States, 946 F 2435, 37 (Sth Cir. 1991) cholding that courts cannot interpret statutes in a

way that rewrites Congressional legislation to cover situations that Congress may not have

foreseen); Hill v. City of Houston, 789 F.2d 1103, 112 (5th Cir 1986) (noting that federal courts

do not have power to interpret or rewrite a statute in a way that determines its constitutionality).

Texas Officials and Harris County Officials do not cite to case law indicating that courts are

unable to declare statutes unconstitutional or enjoin the enforcement of unconstitutional statutes.

Consequently, because none of the cited case law supports Texas Officials and Harris County

Officials’ proposition, Plaintiffs have satisfied the redressability element of standing.

Accordingly, Texas Officials’ Motion to Dismiss based on standing is GRANTED in part

and DENIED in part. Harris County Officials, Chief Acevedo, and Chief Bacon’s Motions to

Dismiss based on standing are DENIED. (Instruments No. 38; No. 42; No. 52).

2.

Chiefs Acevedo and Bacon contend that Plaintiffs’ claims are not yet ripe for review.

(Instruments No. 42 at 7-8; No. 52 at 20). Chief Acevedo contends that Plaintiffs claims are not

17

ripe because Plaintiffs have not established that the alleged dispute is justiciable. (Instrument No.

42 at 7-8). Chief Bacon further asserts that Plaintiffs’ dissatisfaction with the Acts stems from

aesthetic preferences and hypothetical concerns of the potential effect of posting noncompliant

signs. (Instrument No. 52 at 20).

The ripeness doctrine prevents courts from “entangling themselves in abstract

disagreements over administrative policies” and also protects “agencies from judicial

interference until an administrative decision has been formalized and its effects felt in a concrete

way by the challenging parties.” Sample v. Morrison, 406 F.3d 310, 312 (Sth Cir. 2005) (quoting

National Park Hospitality Ass'n v. Department of Interior, 538 U.S. 803, 807-08 (2003)). A case

should be dismissed for ripeness if the issue is abstract or hypothetical. Lopez v. City of Houston,

617 F.3d 336, 341 (Sth Cir. 2010). If an alleged injury is contingent upon future events that

might not occur, the claim is not ripe for adjudication. Id. at 342.

Here, Chiefs Acevedo and Bacon merely re-assert their standing arguments and

recharacterize them as ripeness arguments. While the doctrines of ripeness and standing often

overlap when analyzing whether plaintiff suffered a concrete injury, Plaintiffs have already

adequately established that they suffered an injury. See Texas v. United States, 497 F.3d 491, 498

(5th Cir. 2007). As discussed above, Plaintiffs allege that they are harmed by being forced to

decide between securing police protection against licensed handgun carriers and compelled

speech in violation of their First Amendment rights. Because Plaintiffs have been faced with this

choice, and continue to face this choice, the Court finds that this issue is not abstract,

hypothetical, or contingent upon uncertain future events. Therefore, Plaintiffs’ claims are ripe for

review.

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Accordingly, Chiefs Acevedo and Bacon’s Motions to Dismiss for lack of subject matter

jurisdiction are DENIED. (Instruments No. 42; No. 52).

B.

Defendants also argue that Plaintiffs fail to adequately state any of their claims. Texas

Officials and Harris County Officials argue that they are entitled to sovereign immunity.

(Instruments No. 28 at 25; No. 38 at 9). Harris County Officials, Chief Acevedo, and Chief

Bacon contend that Plaintiffs fail to state a claim against them because they are unable to meet

the Monell municipal liability requirements. (Instruments No. 38 at 8-9; No. 42 at 10; No. 52 at

20-24). Lastly, Texas Officials, Chief Acevedo, and Chief Bacon contend that Plaintiffs fail to

establish their free speech, free association, and due process claims. (Instrument No. 28 at 20;

No. 42 at 9; No. 52 at 20-24).

1.

Texas Officials and Harris County Officials contend that sovereign immunity bars

Plaintiffs’ § 1983 and Texas Constitution claims from being asserted against them. (Instruments

No. 28 at 25; No. 38 at 9).

Federal courts do not have jurisdiction over a suit against state officials in their official

capacity unless the state has waived its sovereign immunity or Congress has clearly abrogated it.

NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 393-94 (Sth Cir. 2015). Courts must examine

each claim in a case to determine if a court’s jurisdiction is barred by the Eleventh Amendment.

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). Texas has not waived

its sovereign immunity and § 1983 does not clearly abrogate state sovereign immunity. NiGen

Biotech, 804 F.3d at 394. However, under the Ex parte Young doctrine, a suit is not against a

state “when it seeks prospective, injunctive relief from a state actor . . . based on an alleged

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ongoing violation of the federal constitution.” K.P. v. LeBlanc, 729 F.3d 427, 439 (Sth Cir.

2013). For the doctrine to apply, a state official “by virtue of his office, must have some

connection with the enforcement of the [challenged] act... .” City of Austin vy. Paxton, 943 F.3d

993, 997 (Sth Cir. 2019) (internal citations and quotations omitted). Additionally, a county agent

operates as a state agent when he or she is enforcing state law or policy. See Echols v. Parker,

909 F.2d 795, 801 (Sth Cir. 1990). This is especially the case when a state statute directs the

actions of a county official. Id.

Applying these principles to this case, Plaintiffs’ federal-claims against Texas Officials

and Harris County Officials are not considered to be “against” the State of Texas because

Plaintiffs only seek prospective injunctive and declaratory relief for ongoing violations of federal

law. Moreover, Defendants do not dispute that they are connected to the enforcement of the Acts.

Thus, Plaintiffs’ federal claims are not barred by sovereign immunity.

However, the Ex parte Young doctrine does not apply to state law claims. NiGen Biotech,

804 F.3d at 394 (“the Ex parte Young doctrine only reaches alleged violations of federal law.”

(emphasis in original)). Sovereign immunity bars federal courts from hearing state law claims

against state officials sued in their official capacity. See Kermode v. Univ. of Mississippi Med.

Cir., 496 F. App'x 483, 490 (Sth Cir. 2012). This includes state-law claims for injunctive relief.

Id. Here, Plaintiffs bring a Texas Constitutional claim under Article I, § 8. (Instrument No. 1 at

28-29). While a private right of action does exist for equitable remedies for violations of the

Texas Constitution, see City of Beaumont y. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995),

sovereign immunity bars this Court from hearing Plaintiffs’ Texas Constitution claim against

state officials. Therefore, this Court is barred from considering Plaintiff's Texas Constitution

20

claim against Texas Officials, as well as Harris County Officials, Chief Acevedo, and Chief

Bacon insofar as they operate as state officials when enforcing the Acts.

Accordingly, Texas Officials and Harris County Officials’ Motions to Dismiss based on

sovereign immunity is GRANTED in part as to the Texas Constitution claim and DENIED in

part as to the federal claims. (Instruments No. 28; No. 38).

2.

Harris County Officials, Chief Acevedo, and Chief Bacon move to dismiss Plaintiffs’

claims because they argue that Plaintiffs cannot meet the elements of a Monell municipal liability

claim. (Instruments No. 38 at 9; No. 42 at 10-11; No. 52 at 25).

Monell municipal liability only arises to hold a municipality liable for an individual

officer or policymaker’s actions. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,

694 (1978). Additionally, as stated earlier, a county official enforcing state law operates as a

state agent. See Echols, 909 F.2d at 801. And, under § 1983, a state official in his or her official

capacity is a person when sued for injunctive relief. Will v. Mich. Dep’t of State Police, 491 U.S.

58, 71 n.10 (1989). Moreover, when a plaintiff satisfies the Ex parte Young requirements, a suit

at equity may proceed even if the plaintiff canriot invoke § 1983. See Green Valley Special Util.

Dist. v. City of Schertz, 969 F.3d 460, 475 (Sth Cir. 2020).

Here, Plaintiffs are not trying to hold a municipality liable for an individual officer or

policymaker’s actions. Plaintiffs seek injunctive relief related to a state law. (Instrument No. 57

at 33). Because Plaintiffs’ claims relate to the enforcement of state law by county officials, the

county officials operate as state officials. Also, because Plaintiffs only seek injunctive and

declaratory relief, the county officials are each treated as a “person” under § 1983. Thus,

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Plaintiffs’ claims may proceed against Harris County Officials, Chief Acevedo, and Chief

Bacon.

Accordingly, Harris County Officials, Chief Acevedo, and Chief Bacon’s Motions to

Dismiss the Monel] municipal liability claim are DENIED. (Instruments No. 38; No. 42; No. 52).

3.

Plaintiffs assert a First Amendment free speech claim, arguing that Defendants are

compelling government speech and unconstitutionally conditioning benefits on government-

scripted speech. (Instrument No. 1 at 26-27). Plaintiffs also assert a First Amendment free

association claim. Jd, at 28. Texas Officials, Chief Acevedo, and Chief Bacon argue that

Plaintiffs fail to state a First Amendment free speech and free association claims. (Instruments

No. 28 at 20-24; 42 at 9; No. 52 at 22-23).

Chiefs Acevedo and Bacon argue that Plaintiffs fail to state a claim against them because

their Complaint identifies no action or conduct by them that abridges Plaintiffs’ First

Amendment rights. (Instruments No. 42 at 9; No. 52 at 22-23). However, this argument simply

restates their standing arguments in their Rule 12(b)(1) motions and recharacterizes them as a

Rule 12(b)(6) issue. This argument was already denied in Section IV.A. of this Order.

Therefore, Chiefs Acevedo and Bacon fail to establish that Plaintiffs do not state a First

Amendment claim against them.

Texas Officials first argue that the Acts should not be subject to any constitutional

scrutiny because the Acts regulate non-expressive conduct and do not fall under any of the

categories set forth in Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986). (Instrument No. 28 at

20).

22

“(E]very civil and criminal remedy imposes some conceivable burden on First

Amendment protected activities.” Arcara, 478 U.S. at 706. However, constitutional scrutiny

applies (1) “where it was conduct with a significant expressive element that drew the legal

remedy in the first place” or (2) “where a statute based on a nonexpressive activity has the

inevitable effect of singling out those engaged in expressive activity.” Id. at 706-07.

In Arcara, the New York statutes at issue declared places of prostitution and lewdness a

public nuisance, which caused the closure of a bookstore in which illicit sexual activities took

place. See 478 U.S. at 699. The Court held that the First Amendment was not implicated by the

enforcement of “a public health regulation of general application against the physical premises in

which respondents happen to sell books.” Jd. at 707. Significantly, the Court noted that the

public health law did not impose a burden by singling out bookstores or others engaged in First

Amendment protected activities. See id. at 705.

The parties dispute whether the Act regulates non-expressive or expressive conduct.

Texas Officials argue that, similar to the situation in Arcara, the Acts regulate non-expressive

conduct and do not single out anti-gun property owners. (Instrument No. 28 at 21). Texas

Officials contend that the property owners are “free to say and do whatever they want about

guns” and there are numerous other ways property owners may exclude licensed handgun

carriers without the Acts. Jd. at 21-22. Plaintiffs argue that Arcara has no connection to this case

as the Acts compel expressive speech rather than regulating non-expressive conduct. (Instrument

No. 57 at 34). Plaintiffs assert that the Acts condition their right to exclude on the forfeiture of an

expressive activity. Id. at 34-35.

Because the Acts criminally prosecute trespassers who are licensed handgun carriers, the

Acts are based on a non-expressive activity. See Tex. Penal Code §§ 30.06, 30.07. Unlike the

23

public health law in Arcara, the Acts single out property owners who wish to exclude licensed

handgun carriers. These property owners forfeit their right to police protection and criminal

prosecution if they do not comply with the Acts’ heightened notice requirements. However,

property owners who wish to exclude anyone else with the support of criminal prosecution may

do so under § 30.05 without satisfying the heightened notice requirements. See Tex. Penal Code

§ 30.05. The Acts single out those engaged in expressive activity to exclude licensed handgun

carriers. Thus, accepting Plaintiffs’ allegations as true, the Acts are based on a non-expressive

activity that singles out those engaged in expressive activity and could be subject to

constitutional scrutiny.

Additionally, Texas Officials argue that Plaintiffs fail to state a free speech claim.

Specifically, Texas Officials assert that Plaintiffs are not compelled to post the signs required

under the Acts. (Instrument No. 28 at 22). They further contend that Plaintiffs fail to state an

unconstitutional conditions claim. Jd.

The First Amendment, made applicable to states by the Fourteenth Amendment, provides

that “Congress shall make no law... abridging the freedom of speech.” U.S. Const. amend. J;

Wooley v. Maynard, 430 U.S. 705, 714 (1977). A fundamental First Amendment tenet is that

“freedom of speech prohibits the government from telling people what they must say.” Rumsfeld

v. Forum for Academic & Inst’l Rights, Inc., 547 U.S. 47, 61 (2006). Free speech includes “both

the right to speak freely and the right to refrain from speaking at all.” Wooley, 430 U.S. at 714.

Turning to the issue of compelled government speech, the First Amendment mandates

that courts “presume that speakers, not the government know best both what they want to say

and how to say it.” See Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 790-

91 (1988). “[E]ven with the purest of motives,” the government “may not substitute its judgment

24

as to how best to speak for that of speakers and listeners... .” Jd. at 791. Government regulation

of speech can be content based, which is presumptively unconstitutional. See Reed v. Town of

Gilbert, 576 U.S. 155, 163 (2015). Government regulation of speech is content based if “a law

applies to particular speech because of the topic discussed or the idea or message expressed.” Id.

Courts must consider whether the “regulation of speech ‘on its face’ draws distinctions based on

the message a speaker conveys.” Jd. “Mandating speech that a speaker would not otherwise make

necessarily alters the content of the speech.” Riley, 487 U.S. at 795.

Here, Defendants argue that the Acts do not require Plaintiffs to post the signs, so there is

no compelled speech. However, Plaintiffs allege that there is no other feasible option.

(Instrument No. 1 at 14). Plaintiffs allege that Bay Area Church has 225 official members and

many non-members who attend weekly services and events. Jd at 17. Antidote sells coffee,

wine, ice cream, and other confections to the community at-large, and is patronized by adults,

children, and families. /d..at 19. Plaintiffs contend that providing oral communication to each

individual patron would be unduly burdensome and impractical. Id.

Accepting Plaintiffs’ allegations as true, Plaintiffs are then limited to providing notice by

either distributing a card to each patron or posting signs that must meet the notice requirements.

See Tex. Penal Code §§ 30.06, 30.07. For both options, Plaintiffs are required to comply with the

Acts’ heightened notice requirements. See id. Conversely, Plaintiffs allege that, under Texas

Penal Code § 30.05, they are permitted to exclude people for any other reason simply by

providing a sign that is “reasonably likely to come to the attention” of potential trespassers.

(Instrument No. 1 at 22). Because the heightened notice requirements are only triggered when

Plaintiffs wish to exclude licensed handgun carriers, the Acts draw distinctions based on the

message the property owners convey, thus creating a content-based restriction. Therefore,

25

because Plaintiffs have alleged a plausible content-based restriction, which is presumptively

unconstitutional, Plaintiffs have stated a compelled speech claim.

Turing next to the unconstitutional conditions claim, “the government may not deny a

benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech

even if he has no entitlement to that benefit.” United States v. Am. Library Ass’n, Inc., 539 U.S.

194, 210 (2003). Texas Officials argue that the Acts do not condition police intervention on

whether the signs are posted. (Instrument No. 28 at 23). However, while Plaintiffs are able to

invoke the protection of the Acts through alternative means, Plaintiffs allege that providing oral

communication to each individual patron is overly burdensome and providing individual cards

with the heightened notice requirements elicits the same free speech issue. (Instrument No. 1 at

13-15). Plaintiffs further allege that they are unable to rely on police intervention to exclude guns

from their property without the Acts. Jd. at 17. Texas Officials provide no argument to support

their assertion that police intervention is not conditioned on the compliance with the Acts. See

(Instrument No. 28 at 23). Moreover, at the motion to dismiss stage, courts must accept the

plaintiff's allegations as true. See Turner v. Pleasant, 663 F.3d 770, 775 (Sth Cir. 2011).

Accepting Plaintiffs’ allegations as true, Plaintiffs have stated an unconstitutional conditions

claim.

Texas Officials contend that Plaintiffs fail to state a First Amendment free association

claim. (Instrument No. 28 at 23). The First Amendment provides individuals with the right to

“eschew association for expressive purposes.” McDonald v. Longley, 4 F.4th 229, 245 (Sth Cir.

2021) (quoting Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448,

2463 (2018)). The freedom of association “plainly presupposes a freedom not to associate.”

Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984). A state may not require a party to forfeit one

26

constitutionally protected right to gain another. See Lefkowitz v. Cunningham, 431 US. 801, 807-

08 (1977). Forcing an individual to make this choice violates one’s free association right. Id.

Here, Plaintiffs allege that their freedom to eschew association with licensed handgun carriers is

frustrated by the Acts’ heightened notice requirements. (Instrument No. 1 at 28). In order to

protect their free association right, Plaintiffs allege that they must engage in displaying

government-compelled speech that violates their free speech rights. Accepting all allegations as

true, this choice violates Plaintiffs’ free association right and, consequently, Plaintiffs have stated

a plausible free association claim.

Accordingly, Texas Officials, Chief Acevedo, and Chief Bacon’s Motions to Dismiss

Plaintiffs’ First Amendment claims are DENIED. (Instruments No. 28; No. 42; No. 52).

4.

Texas Officials, Chief Acevedo, and Chief Bacon contend that Plaintiffs fail to state a

Fifth and Fourteenth Amendment due process claim. (Instruments No. 28 at 24; No. 42 at 9-10;

No. 52 at 17). |

Plaintiffs specifically allege that the Acts do not clearly state whether property owners

must provide oral notice in addition to posting signs and, therefore, the Acts are vague in

violation of their due process rights. (Instrument No. 1 at 29). In their Response, Plaintiffs note

that “[i]f the Attorney General is willing to state that the crime of trespass is complete when an

entrant disregards written notice at the point of entry, Plaintiffs will accept that interpretation.”

(instrument No. 57 35). Texas Officials contend that the Acts unambiguously state that

licensed handgun carriers commit an offense if they receive notice by oral or written

communication. (Instrument No. 28 at 24). Texas Officials further assert that the plain language

makes explicit that either of the two forms of communication would suffice to trigger the Acts.

27

Id. Because Texas Officials made clear that the crime of trespass is triggered when an entrant

disregards written communication upon entry, Plaintiffs concede to this interpretation of the

Acts.

Accordingly, Texas Officials, Chief Acevedo, and Chief Bacons’ Motions to Dismiss

Plaintiffs’ Fifth and Fourth Amendment due process claim are GRANTED. (Instruments No. 28;

‘No. 42; No. 52).

Iv.

For the foregoing reasons, IT IS HEREBY ORDERED Defendants’ Motions to Dismiss

is GRANTED in part and DENIED in part. (Instruments No. 28; No. 38; No. 42; No. 52). □

IT IS FURTHER ORDERED that Plaintiffs’ First Amendment facial challenge is

DISMISSED.

IT IS FURTHER ORDERED that Plaintiffs’ Texas Constitution claim is DISMISSED.

IT IS FURTHER ORDERED that Plaintiffs’ Fifth and Fourteenth Amendment due

process claim is DISMISSED.

The Clerk shall enter this Order and provide a copy to all parties.

SIGNED on this as of August, 2021, at Houston, Texas.

UNITED STATES DISTRICT JUDGE

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