Attorney general files appeal before rail trial begins

The Texas attorney general’s office filed an appeal to the 3rd Court of Appeals on Monday morning after Judge Eric Shepperd told a packed Travis County courtroom that he would not rule on a challenge to the jurisdiction before hearing evidence in the case brought by the city of Austin and the Austin Transit Partnership. The city and ATP were in court to establish that they have followed the law.

Shepperd, who has steadfastly refused to rule on the jurisdiction question since March, told attorneys for the Office of the Attorney General, the city, ATP and the plaintiffs suing the rail agency and the city that hearing facts from the parties would perhaps shed light on the jurisdiction question. However, after lawyers for all sides in the case agreed that he no longer had jurisdiction, the judge said he would not attempt to cotinue with the trial.

Following the brief hearing, representatives of ATP and the citizen plaintiffs, as well as advocates for rail, presented their arguments to members of the media gathered in the courthouse hallway. Each side blamed the other for the delay in a final decision about whether ATP and the city have the law on their side.

ATP Executive Director Greg Canally said ATP and the city had filed a motion to dismiss Attorney General Ken Paxton’s appeal.

“Austin Transit Partnership and the city of Austin asked for this trial today so that we could have an impartial judge confirm that we have complied with state law at every step in moving Project Connect forward,” he said.

Canally added later in a written statement, “A handful of transit opponents are taking unprecedented measures to delay these proceedings and deny ATP, the City and Austin voters our day in court because they know the law does not support their position. ATP and the City were ready for trial today. … We are confident that the Third Court of Appeals will act quickly to dismiss this baseless appeal, enabling the trial to begin soon. As we have been doing throughout this process, ATP will continue advancing Austin Light Rail, which was overwhelmingly approved by Austin voters at the ballot box.”

Attorney Bill Aleshire, who represents the burger restaurant Dirty Martin’s and the other plaintiffs, said, “We look forward to having the court decide whether the Texas Tax code” will fund the “Project Connect bait and switch. … Nothing we have done has delayed getting a decision on the merits. They are the ones that brought the attorney general into the case. They raised the issue of whether they had the authority to bring the case.”

He concluded, “This is the bottom line … if there’s any leaders left in the city of Austin. It’s time for them to recognize that the current plan for Project Connect is doomed … it is time for leaders to rethink Project Connect and consider putting a bond election on the November ballot where it is legal and logical and honest.” If the plaintiffs and the attorney general do not win the court case, Aleshire raised the prospect of legislative intervention. Such legislation did not make it through the last session of the Legislature.

In their request to dismiss the attorney general’s appeal, ATP and the city wrote, “No one challenged the results of the 2020 election, yet three years later, opponents of Project Connect unsuccessfully tried to change the law to stop Project Connect in the legislature. … By seeking to change the law, the legislators implicitly acknowledged that the law allows the payment of City tax revenues approved in a tax increase election to a City-sponsored local government corporation.”

A city spokesperson said via email, “Because the Attorney General had been very clear about his intention to appeal this matter, we were not surprised. We are disappointed to have a delay in the proceedings but not surprised. Project Connect continues to move forward despite these legal proceedings.”

The plaintiffs who sued to stop Project Connect include former state Sen. Gonzalo Barrientos, who served in the Senate from 1985 to 2007. Before that, he was a state representative for 10 years. Barrientos attended Monday’s hearing and afterward he talked with the Austin Monitor about the tax burden on lower-income property owners, particularly those living in East Austin. He noted that many people have sold their homes and moved out of Austin, blaming those departures on burdensome property taxes. Of course, Project Connect is dependent on city property taxes, which voters approved in 2020. He said ATP and the city should “go back to the people and get an OK – or not – for this plan right now and how it’s going to affect their pocket.”

Another person who had a comment about the lawsuit was disability advocate Nancy Crowther. Crowther, who gets around Austin in a wheelchair, told reporters she’s lived in Austin since 1980 and voted for transit in 1985, when the project did not win voter approval, and again in 2020, when it did.

“I’ve been waiting for rail for 40 years,” she said. “I depend on transit and so do the thousands of other people who use it.”

She went on, “We’re wasting too much time, we’re wasting too much money. I’m a taxpayer and I’m really tired of this waste of taxpayer money for this delay, delay, delay. What good does that do? Forty years later, I’m a little bit upset. I would like to get this trial over with. I would like to see the taxpayers get their money’s worth – that they voted for.”

Also speaking in favor of the rail system was Bill McCamley, executive director of Austin Transit Forward. McCamley said via news release, “Transit Forward believes passionately that Project Connect is a generational investment that has already and will continue to improve the lives of Austinites by making life here more affordable, greener, and safer. Unfortunately, there are a few people who have opposed new transit for decades and have filed a lawsuit to get around the will of the voters, who approved Project Connect overwhelmingly in 2020.

“Now, this same vocal minority are using legal tricks to delay the lawsuit further. This is forcing Austinites’ hard earned taxpayer money to be wasted both through unnecessary legal fees and possibly forcing further delays which will cost us – the voters – more. This is as disappointing as it is bad for democracy, wasting our money, and slows the start of the transit options we so desperately need and that our community approved at the ballot box.

“Transit Forward supports the City of Austin and Austin Transit Partnership moving to resolve these delays as quicky as possible so that Austinites can get the new trains, buses, and housing that will move us forward into a better future,” he concluded.

The only Republican on the City Council dais, District 6 Council Member Mackenzie Kelly, issued the following statement: “Unfortunately, in 2020, City leadership under Mayor Adler chose not only to overpromise on Project Connect but also to pay for it through a legally questionable funding mechanism. Austin voters and taxpayers will have to continue to wait for a drawn-out legal battle to unfold before transit improvements can be delivered – if they can ever be delivered at all – all while continuing to pay 21% higher taxes to the City in the meantime. As the Council begins deliberations on the City’s annual budget, I will be working to provide Austinites tax relief on Project Connect until the dispute over its financing structure is resolved through the court system.”

It is not clear when the Court of Appeals might act on the attorney general’s suit. However, it does seem likely that whoever loses the case will appeal to the Texas Supreme Court, further slowing progress of the rail system.

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