Former Austin City Councilmember (2015-17) sued the City of Austin over a $150,000 budget item in its 2019 budget for the purpose of “providing or facilitating logistical and support services for Austin residents seeking abortion care.” Zimmerman alleged that the appropriation violated the Texas criminal statute prohibiting the performance of or aiding or abetting an abortion. He argued further that the appropriation violated Article III, Section 52(a), Texas Constitution, which prohibits the Legislature from authorizing local governments to make grants of public money to private individuals or entities, and sought a declaratory judgment (so he could get his costs and attorney’s fees). The City filed a plea to the jurisdiction that challenged Zimmerman’s standing to bring the suit and contended that, since nobody had received any money from the appropriation, the lawsuit was premature. The trial court granted the plea, and the El Paso Court of Appeals affirmed. Zimmerman appealed.
These are the facts in Don Zimmerman v. City of Austin and Spencer Cronk, in his Official Capacity as City Manager of the City of Austin (No. 21-0262; issued December 30, 2022). While the case was pending, SCOTUS decided Dobbs. After requesting additional briefing from the parties on the effect of Dobbs on this case and without argument, the Court wisely decided to vacate the judgments of the trial court and court of appeals and remand to the trial court on the issue of whether Dobbs and any other factual developments since then affect Zimmerman’s claims.
It seems to us that the Art. III, § 52(a) (the “Gift Clause”) issue is perhaps the more interesting issue here. The City argues that Dobbs rendered Zimmerman’s criminal statute argument moot, but that seems to be an open issue for which the Court wanted a more fully developed record before getting into. Even so, it’s not clear what difference the mootness argument makes, since the City apparently never spent any of the money, and it would be very peculiar indeed if a court held that merely appropriating the money was the crime. At this point, we wonder if all that is really left is the attorney’s fees issue. But that seems murky as well for the same reasons stated above: nobody ever actually received a “gift” and it’s not at all clear from the facts that even had the City spent the money, it would have been “given” to private persons. In the plaintiff’s position, we might be a little concerned that we could end up paying the City’s costs and attorney’s fees. After all, the Declaratory Judgment Act’s provision for them is a two-way street, and this case seems far from a sure winner.
