02-21-97 Surprise "Removal" of Case to Federal Court
On Friday, February 21, 1997, in a surprise move with no prior notice, the Texas Attorney General's Office "removed" the class action lawsuit from State District Court to Federal District Court. The case is now pending in the Federal District Court in the Western District of Texas, Honorable H.F. Garcia Presiding. By "removing" the case to federal district court, the AG's Office essentially took the matter away from Texas courts and turned control over to the federal court system.
Removal to federal court is proper only if the lawsuit involves a federal claim, such as a right under a federal statute. Although the AG's Office admitted in its Notice of Removal that "plaintiffs have not specifically alleged a federal cause of action against the Texas Attorney General," the AG asserts that "plaintiffs' Petition shows that their claims against the Attorney General arise under a federal statute, specifically, 42 U.S.C. Sec. 602(a)(27) and 42 U.S.C. Secs. 651 et seq." The AG likens to present case to Freestone v. Cowan,, 68 F.3d 1141 (9th Cir. 1995), cert. granted, 116 S.Ct. 1671 (1996)--a case currently before the United States Supreme Court. Thus, the Texas AG is forcing the lawsuit into a federal case posture, even though federal statutes were not the basis for the Plaintiffs' claims.
02-24-97 Plaintiffs Move to Dismiss AG's State Court Appeal
The Texas AG's Office has had the class action suit tied up in an appeal to the Fourth Court of Appeals, in San Antonio. The AG has appealed Judge Johnny Gabriel's Order Certifying Class. As a result of that appeal, under Texas Rule of Appellate Procedure 43(a), the class action suit is stopped dead in its tracks. No action to advance the class action can be taken while the appeal is pending. The AG thus has effectively delayed action on the lawsuit until after the Texas Legislature recesses at the end of May, 1997.
In light of the AG's "removal" of the case from state to Federal District Court, on Monday 02-24-97 Plaintiffs in the class action filed a motion to dismiss the AG's appeal, on the ground that the removal of the lawsuit from state court to federal district court moots the appeal, and deprives the Fourth Court of Appeals of jurisdiction to rule on the AG's claims. It is expected that the Fourth Court of Appeals will not rule on the motion to dismiss until at least 10 days after filing.
Copyright © 1997 Richard R. Orsinger
This Web Page was created Friday, February 21, 1997
Most recent revision Monday, February 24, 1997