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The third party team in Elgin’s recent lawsuit with Texas Attorney General Ken Paxton is eyeing an appeal, trying to get back in the fight for the city’s voter approved marijuana-focused ordinance.
Attorney Richard Gladden, defendant- intervenor Decriminalize Elgin’s representative, filed a pleading July 11 in the Fort Worth Court of Appeals concerning a similar initiative ordinance case in Denton, north of Dallas. As in Elgin, the District Court granted the motion to strike his third party’s petition in intervention from plaintiff State of Texas.
“The [petition] discusses the same error the Bastrop County District Judge fell into, and it is an issue that will be included, among others, in the appeal by Decriminalize Elgin in its case,” Gladden said.
The pleading presents that a trial court’s order that grants a plaintiff’s motion to strike a defendant- intervenor’s petition in intervention is void when the trial court does not first determine it has subject matter jurisdiction.
This issue of jurisdiction was raised by Gladden in his plea before the court, stating in the Denton filings that the “plaintiff did not have constitutional standing under Texas law because the initiative ordinance ‘never had been, and likely never would be’ enforced.”
The Supreme Court of Texas has repeatedly ruled that a trial court must determine at its earliest opportunity whether it has the authority to decide the case before allowing the litigation to proceed, according to the petition.
The pleading states that “the reason why jurisdictional issues must take precedence over all other issues in a case is because if plaintiffs lack standing to seek orders from a court, the court lacks power to issue those orders.”
Elgin’s initial case reached its conclusion June 18, when the court approved an agreement between the city and state. The consent decree resolved the dispute without admission of guilt or liability, stating that “the parties desire to avoid further litigation and have reached an agreement.”
The resolution stipulated that the ordinance eliminating low-level marijuana offenses within the city is void and that the plaintiff will dismiss the suit.
A deadline for defendant- intervenor’s notice of appeal in the Elgin case is set for July 18.
“I expect a notice of appeal will timely be filed before then,” Gladden said.
