Bona to vada your dolly old eek!*

Monday’s landmark Supreme Court decision in Bostock v. Clayton County, Georgia came as a surprise to many, with typically conservative justices making decisions with progressive outcomes. As so many have reported, Neil Gorsuch, a strict textualist, looked at the plain language of the law and concluded:

“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

Bottom line: Language matters.

We at the Harris County Law Library also have an appreciation for language and its many idiosyncrasies. Reading about the Supreme Court’s historic decision brought to mind the importance of language and words – what they mean, and how they function.

Language serves a greater purpose than communication. It is the currency we use for self-expression, and it gives meaning to thoughts and ideas. Language also builds communities. To learn the vocabulary, grammar, syntax, and tone of a language is to become part of the in-group that speaks it. In short, words give us access to the communities we inhabit.

Within those communities, we develop a jargon, which one website defines as “a type of shorthand between members of a particular group of people, often involving words that are meaningless outside of a certain context.” When mastered, jargon serves as an emblem of our belonging. One good example that illustrates how language defines a culture comes from the LGBTQ community in Great Britain.

Polari

This anti-language is, thankfully, a relic of a bygone era when gay men in the United Kingdom relied on words to keep them safe. Homosexuality was not decriminalized in the UK until the passage of the Sexual Offences Act of 1967. Developing a tool for communicating within the gay community prior to that time was necessary to survive. That tool was Polari, a secret language that evolved from thieves’ cant, an argot used in the world of petty crime that dates back to the 16th century. Along the way, Polari picked up bits of Yiddish, Italian, and Romani. It bears many similarities to Cockney Rhyming Slang, using humor and wit to speak in a way that granted gay men the freedom to socialize and build community without fear. Today, Polari is all but dead, a sign of the times. Yesterday’s decision to protect LGBTQ individuals in the workplace hinged on a strict textual reading of the law, and consequently, led to the further demise of cultural touchstones like Polari that are no longer needed.

*Nice to see your pretty face!

Landmark SCOTUS Ruling Protects LGBT Workers

In an earlier post today, we marked the signing of the Magna Carta and recognized the impact it had on our rights as set forth in the United States Constitution and the Bill of Rights. Today, 805 years later, our nation takes another leap in its recognition of basic civil rights for its citizens. According to our nation’s highest court, employers who fire gay or transgender persons simply on the basis of their homosexual or transgender status violate Title VII of the Civil Rights Act of 1964. This morning, the United States Supreme Court handed down a landmark decision protecting members of the LGBTQ community from employment discrimination. In each of the cases that forms the basis of Bostock v. Clayton County, Georgia, a long-time employee was fired for simply being gay or transgender. Each employee filed an action under Title VII, alleging unlawful discrimination on the basis of sex. In two of the cases, the appellate courts ruled that such discrimination did violate Title VII. However, with respect to the third case, the Eleventh Circuit found that the law does not prohibit employers from firing employees for being gay. In determining the ordinary public meaning of Title VII’s mandate that employers not discriminate against individuals on the basis of race, color, religion, sex, or national origin, the Supreme Court held that

An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

In so holding, the Court rejected an argument that in ordinary parlance firing a person for being gay or transgender did not amount to discrimination on the basis of sex because the fired individual would probably admit that they were fired on those grounds rather than because of their sex. Additionally, the Court dismissed an argument that discrimination based on one’s status as gay or transgender did not rise to the level of the disparate treatment showing required because there was no intentional discrimination based on sex on the part of the employer. The Court disagreed, finding that Title VII focuses on discrimination of individuals, not groups. Additionally, the Court stated that just because homosexuality and transgender status are not specifically included on the list of protected characteristics does not necessarily mean that the they are implicitly excluded.

Vote By Mail in Texas? It's Up to You.

Vote by mail is still a hot button issue in Texas, especially as the date for the primary runoffs rapidly approaches. In case you haven’t heard, in April, a district court judge in Travis County entered a temporary order enjoining the Travis County Clerk from rejecting any applications for mail-in ballots from individuals claiming a disability as a result of the COVID-19 virus or from tabulating ballots submitted by those claiming such disability.

A lot has happened since we last wrote about that April 17 district court order. Let’s review some of the key actions and decisions:

• Soon after the district court’s order, the State appealed, effectively staying the temporary order issued by the district court.

• The Texas Attorney General published a letter on May 1, 2020, offering guidance on the mail-in ballot issue by stating that “fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail.”

• On May 5, appellees filed an emergency motion to enforce the original temporary injunction.

• On May 14, the Fourteenth Court of Appeals agreed with the expansion of mail-in ballot rights, at least temporarily. The appellate court concluded that the temporary order was necessary to preserve the parties’ rights and held that the temporary injunction issued by the district court would remain in effect until the matter was officially disposed.

• The Supreme Court of Texas disagreed, however. In an opinion delivered on May 27, 2020, the Court held that a voter’s lack of immunity to COVID-19 did not satisfy the disability requirement of the Texas Election Code. Plaintiffs have since filed a motion to have their interlocutory appeal dismissed. The motion came on the heels of a notice of nonsuit that was filed with the Fourteenth Court of Appeals after the Supreme Court of Texas rendered its decision. (To see some other key documents relating to the vote by mail litigation, click here.)

As this issue was winding its way through the state judicial system, there was a parallel case pending in the federal court. The Texas Democratic Party and interested voters filed an action in the United States District Court for the Western District of Texas, alleging among other things that the denial of the right to vote by mail for eligible voters under the age of 65 during the COVID-19 pandemic amounted to a violation of federal constitutional rights. The federal court ordered that any eligible voter seeking to vote by mail to avoid transmission of the coronavirus was entitled to do so. Furthermore, the court issued the requested preliminary injunction. Upon motion by the State, the preliminary injunction was stayed pending appeal by the United States District Court for Fifth Circuit in an opinion filed on June 4, 2020.

So, where does this leave Texas voters? It seems that they might be on their own to decide.

Evictions Are Once Again on the Docket

Due to the coronavirus pandemic, the Supreme Court of Texas had issued its Fourth Emergency Order Regarding the COVID-19 State of Disaster, establishing a moratorium on any action for eviction to recover possession of residential property until April 19, 2020. The expiration date for this moratorium was subsequently extended by the Twelfth Emergency Order Regarding the COVID-19 State of Diasater to May 18, 2020. These orders allowed new filings to be submitted during the moratorium but halted the posting of any statutory notice of a writ of possession as well as any service of citation until May 25, 2020.

In addition to the Texas moratorium, renters had the further protection provided by the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted by Congress on March 27, 2020. The CARES Act, and specifically Section 4024(b), prohibited landlords of certain “covered dwellings” from instituting eviction actions or charging fees or penalties for the nonpayment of rent. The protections afforded by the CARES Act extend 120 days from its date of enactment. During this 120-day period, landlords also are enjoined from issuing any notices to vacate. Under the statute, landlords are also required to provide tenants with 30 days during which to vacate the premises. However, the protections afforded by the CARES Act are only applicable to covered property. Section 4024(a)(2) defines “covered property” as any property that participates in a federal assistance program, such as public housing, Section-8 Project-Based Rental Assistance, and the Low Housing Income Tax Credit (LHITC) program or that is secured by a federally backed mortgage loan or federally backed multifamily mortgage loan, such as Fannie Mae and Freddie Mac, or that is insured by the Federal Housing Administration or the Department of Veterans Affairs. Of course, the difficulty involved with the CARES Act as it relates to renters involves whether the property which they are renting is a covered property under the Act. Unfortunately, renters might have no reason to know this as the property is owned by another party, and it might be difficult to determine or discover whether the property is covered. To aid in this regard, ProPublica, an independent, nonprofit newsroom, has published an interactive database to help renters find out if the federal moratorium would apply to them.

For those Texas renters whose property is not a covered one as defined in the CARES Act, eviction, unfortunately, could become a sad reality. With the Texas moratorium expiring on May 18, landlords are now free to move forward with eviction proceedings, including the issuance of service of process and the posting of writs of possession. Note that the onus is not necessarily on the tenant to determine whether the dwelling is a covered one under the CARES Act. Pursuant to the Fifteenth Emergency Order Regarding the COVID-19 State of Disaster, landlords are required to state in any sworn petitions or separate affidavit filed between March 27, 2020 and July 25, 2020, that “the premises are not subject to the moratorium on evictions imposed by Section 4024 of the CARES Act.” A sample of an affidavit containing the required language can be found on the website of the Harris County Justice Courts. Interested parties are directed to consult the websites of the individual justice courts for more information about filing and court proceedings.

For those tenants who require some assistance, there are some options available. There are some legal aid organizations in Harris County and the Houston area that might be able to help, most notably, Houston Volunteer Lawyers and Lone Star Legal Aid. Others around Texas include: Legal Aid of Northwest Texas, Texas Legal Services Center, and Texas RioGrande Legal Aid. There is also some useful information on TexasLawHelp.org concerning eviction and other landlord issues, including a page discussing Evictions During the COVID-19 Pandemic. See also a post written by the blog team here at the Harris County Law Library about some useful landlord/tenant resources.

Where There’s a Will, There’s a Wayback Machine: Ransomware Hits the TEXas Judiciary online

Page Not Found

If your bookmark for the Texas Rules of Civil Procedure on the Texas Courts Website no longer links you to the source you are seeking but instead gives you a 404 error, or if you’re searching for your favorite Research Guide on the Texas State Law Library website but the page is timing out, you may wonder why. On May 8, the Office of Court Administration, the IT service provider for the appellate courts and state judicial agencies within the Texas Judicial Branch, identified a serious security issue, which was later determined to be a ransomware attack. OCA was able to shut down the branch network, including websites and servers, to prevent further harm.

While the server problems are being addressed, a temporary website is providing access to coronavirus information including emergency orders, court guidance, and electronic hearing procedures. The latest Court news and other updates, including the statement released by the OCA, are also available on the temporary page, along with the @txcourts Twitter feed. The OCA took care to address concerns about essential services such as eFile Texas and reSearchTX, which, they explain, are cloud-based services unaffected by the ransomware attack. The courts and judicial branch agencies are continuing operations and ensuring that the filing of court documents will continue without interruption. If you need to access the resources on the original version of the website, follow the steps below.

Access the original Texas Judicial Branch website as it was captured by the Wayback Machine on April 10, 2020.

Here’s the Hack

• Go to the Internet Archive’s Wayback Machine website.

• Type this URL into the search box: TXCOURTS.GOV

• The page has been captured hundreds of times since 2012, and as most recently as April 10, 2020. Choose that date on the calendar.

• Select one of the timestamp options, and you will link to the original Texas Courts homepage where most, if not all, of the webpages — including the PDFs they link to — are available.

Access, for example, the Texas Rules of Evidence. Download any number of forms, including Orders of Nondisclosure. As long as you access the site via the Wayback Machine, you will be able to view all captured pages. (What is the Wayback Machine? Learn more here.)

Hopefully, the Texas Judiciary and our good friends at the Texas State Law Library will be back up and running smoothly again soon! If you’re missing the State Law Library’s chat reference feature, try the link at Harris County Law Library, where we’ve partnered with the TSLL to provide real-time chat services. Your reliable State Law Library reference staff is available and continuing to provide services. We wish the OCA much luck in the investigation, remediation, and recovery of IT services for the Judiciary and the Texas State Law Library.