The San Antonio Court of Appeals has affirmed a trial court order dismissing a lawsuit brought against a physician under SB 8.
Felipe N. Gomez v. Alan Braid (No. 04-22-00829-CV; February 21, 2024) arose from one of the state’s first lawsuits seeking a $10,000 award from a defendant for allegedly aiding or abetting an illegal abortion. After filing suit, Plaintiff requested the trial court to rule on the constitutionality of SB 8, but Defendant moved to dismiss for lack of subject matter jurisdiction, arguing that Plaintiff had no standing to sue under the Texas Constitution. The trial court granted Defendant’s plea to the jurisdiction and dismissed the case. Plaintiff appealed.
The court of appeals affirmed. Plaintiff argued that the trial court abused its discretion by failing to determine the constitutional question and failing to assure that the attorney general received the proper notification of a challenge to the constitutionality of a statute as required by § 402.010, Government Code. Under § 402.010, a trial court must wait at least 45-days from the date of the statutory notice to the attorney general before issuing a ruling on the constitutionality of the statute. The 45-day waiting period, however, does not apply to a ruling rejecting such a challenge. In this case, the court determined, the trial court granted Defendant’s plea to the jurisdiction without giving the attorney general the required statutory notice to begin with. Since Plaintiff “[did] not otherwise identity how the trial court’s actions pertaining to his section 420.010 motion constituted reversible error resulting in improper judgment,” the court could not “conclude the trial court erred by failing to provide the attorney general with section 402.010(a) notice.”
This decision leaves the question of SB 8’s constitutionality as unsettled as it has been since the enactment of the statute. It is notable, however, that the trial court dismissed the case on the basis of lack of constitutional standing. As amicus curiae, we have contended in two other pending cases before the Austin and Fort Worth courts of appeals that SB 8 is unconstitutional because it grants standing to sue without a specific, concrete injury, thus violating the constitutional standing rule. The court of appeals’ decision seems to hinge on the procedural posture of the case and the confused manner in which the evidently pro se Plaintiff prosecuted the case, so it does not shed much light on the constitutional issue itself. Still, we now have a court of appeals opinion on the subject, and that decision, whatever it may mean, is favorable to a defendant who made the standing argument. That’s a heckuva lot better than nothing, in our view. We hope that the other courts of appeals with SB 8 appeal follow suit.
