Fentanyl and Paxton Could Be Fatal Mix
for GOP Public Nuisance Suit Limits Bill

Capitol Inside
March 16, 2023

A move among Texas House Republicans to protect major corporations from public nuisance lawsuits could be in serious peril amid ferocious opposition from local officials with an opioid crisis as their chief defense and Attorney General Ken Paxton as an unexpected ally.

Paxton's office appeared to catch the sponsors and supporters for House Bill 1372 by surprise on Wednesday when it informed the Judiciary & Civil Jurisprudence Committee that the proposal would be unconstitutional if it passed in its current form.

With concerns on opioid abuse at an all-time high with a dramatic spike in deaths from overdoses on fentanyl, HB 1372 is an attempt to head off a replay of the Texas case against big tobacco interests in the late 1990s when the state scored the largest judgment in history at the time. The measure is a top priority for the powerhouse organization Texans for Lawsuit Reform in the regular session in 2023.

But TLR emerged in 2022 as a fierce Paxton foe - pouring massive sums of campaign cash into Eva Guzman's bid to oust the incumbent attorney general in the GOP primary election. Guzman, a former Texas Supreme Court justice, failed to make a runoff when she finished third behind Paxton and then-Land Commissioner George P. Bush in the first round with only 17.5 percent of the opening vote. Louie Gohmert - a longtime congressman from East Texas - was last in a primary field of four with a close 17 percent while Paxton and Bush advanced to overtime with 43 percent and 23 percent respectively.

Paxton trounced Bush in the runoff with almost 68 percent before defeating Democrat Rochelle Garza in the general election with 53 percent of the fall vote. Instead of pursuing a truce, the attorney general has raised the specter with the position on HB 1372 that the warring with TLR has intensified and could get considerably worse as the current session unfolds.

Paxton had been on the opposite side on the issue a year ago when he rallied to the defense of energy companies in the face of public nuisance claims arising out of Delaware. The Texas AG signed on to a multistate amicus brief on behalf of firms that were targeted as defendants in a suit against BP America over the cost to the public of pollution from fossil fuels.

"Delaware’s common law public-nuisance claim, which alleges that energy companies knowingly promoted the use of fossil fuels that cause global warming, is in reality a disguised effort to regulate interstate pollution – which the Constitution reserves to federal common law, not state law," Paxton contended in March last year.

While the state's top lawyer didn't take a position in official opposition to the measure that GOP State Rep. Cody Harris of Palestine has packaged in HB 1372 with 16 GOP colleagues as co-authors. But the AG office analysis of the measure's ability to survive at the courthouse could have a diminishing if not fatal effect on its odds for success in the current session.

Sally Basurto, the government affairs director for the city of San Antonio, summed up concerns that other local leaders voice at the House hearing on the Harris bill.

"This essentially gives manufacturers and distributors of dangerous products, such as opioids, a free pass to act with reckless disregard to the public safety," Basurto said in public comments to the panel. "Additionally, this bill precludes government entities from recouping economic damages for harms to their communities from such actions. As has already been clearly established by the ongoing opioid litigation brought by states, counties and municipalities across the country, including Texas, communities can and have been economically harmed by public nuisance."

The initial opponents to HB 1372 included officials from the Harris County Public Health District, the Nueces County Hospital District along with McLennan County Judge Scott Felton, Jones County Judge Dale Spurgeon and Nacogdoches County Attorney John Fleming.

"McLennan County has seen firsthand the value of having available to it this important tool to hold parties responsible for the damages caused to its citizens," Felton told the committee. "Public nuisance is the lynchpin utilized to hold those responsible accountable. The funding made available as a direct result of the public nuisance laws in Texas has provided direct funding to McLennan County for its use to deal with the significant mental health crisis in large part fueled by the opioid epidemic."

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