Don Zimmerman v. City of Austin And Spencer Cronk, in His Official Capacity as City Manager of the City of Austin ( 2022 )

Supreme Court of Texas
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No. 21-0262
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Don Zimmerman,
Petitioner,
v.
City of Austin; and Spencer Cronk, in his Official Capacity as
City Manager of the City of Austin,
Respondents
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On Petition for Review from the
Court of Appeals for the Eighth District of Texas
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PER CURIAM
In September 2019, the City of Austin approved a budget for its
upcoming fiscal year that allocated $150,000 to fund entities “providing
or facilitating logistical and support services for Austin residents
seeking abortion care.” The next day, Don Zimmerman, an Austin
resident, sued the City and its City Manager,1 alleging that “providing
taxpayer money to abortion-assistance organizations” violated Texas
law. Zimmerman asserted that Article 4512.2 of the Revised Civil
1 We refer to defendants collectively as “the City.”
Statutes was never repealed by the Legislature and remained
enforceable despite Roe v. Wade, 410 U.S. 113 (1973).2
Zimmerman separately alleged that the City’s allocation violates
the Gift Clause in Article III, Section 52(a) of the Texas Constitution.3
Zimmerman sought a declaration that the proposed expenditures violate
Texas law and the Constitution, as well as an injunction prohibiting the
City from making these expenditures in the future and requiring the
City to “claw back” all expenditures already made.
The City filed a plea to the jurisdiction. It argued that
(1) Zimmerman, a private citizen, lacks standing to sue to enforce a
criminal statute, and (2) Roe rendered Article 4512.2 void and without
effect. The City also argued that Zimmerman’s claim under the Gift
Clause is not ripe because no expenditure from the fund has been made
2Article 4512.2 states: “Whoever furnishes the means for procuring an
abortion knowing the purpose intended is guilty as an accomplice.” TEX. REV.
CIV. STAT. art. 4512.2. The preceding subsection, Article 4512.1, states that
any person who “procure[s] an abortion” shall be subject to criminal
punishment. Id. art. 4512.1.
3 The Gift Clause states:
Except as otherwise provided by this section, the Legislature
shall have no power to authorize any county, city, town or other
political corporation or subdivision of the State to lend its credit
or to grant public money or thing of value in aid of, or to any
individual, association or corporation whatsoever, or to become
a stockholder in such corporation, association or company.
However, this section does not prohibit the use of public funds
or credit for the payment of premiums on nonassessable
property and casualty, life, health, or accident insurance policies
and annuity contracts issued by a mutual insurance company
authorized to do business in this State.
TEX. CONST. art. III, § 52(a).
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to any organization. Finally, the City contended that Zimmerman’s
claims should be dismissed because the City is not a proper party and
because Zimmerman’s request for an injunction to “claw back”
expenditures is an impermissible claim for retroactive relief.
Following a hearing, the trial court granted the City’s plea to the
jurisdiction without explaining its reasons. It dismissed with prejudice
Zimmerman’s claim that the City’s budget violates Texas law, and it
dismissed without prejudice Zimmerman’s claim that the budget
violated the Gift Clause.
Zimmerman appealed, and the court of appeals affirmed. 620
S.W.3d 473 (Tex. App.—El Paso 2021). Zimmerman then petitioned this
Court for review. We requested briefs on the merits; after briefing was
complete, the United States Supreme Court issued its opinion in Dobbs
v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). We
asked the parties for supplemental briefing on the effect of Dobbs on this
appeal. The City responded, contending that Zimmerman’s main
issue—whether Article 4512.2 was enforceable after Roe—is now moot.
The City thus argues that we should dismiss the case or, alternatively,
remand to the trial court. Zimmerman, for his part, argues the appeal
is not moot because he seeks costs and attorney’s fees under the Uniform
Declaratory Judgments Act.
The court of appeals relied on the Supreme Court’s holding in Roe
to conclude that Zimmerman’s claim could not proceed. See 620 S.W.3d
at 486. As Dobbs has now overruled Roe, we conclude the best approach
is to vacate the lower courts’ judgments and remand the case to the trial
court to address in the first instance the effect of this change in the law—
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and the effect of any intervening factual developments—on
Zimmerman’s claims. See TEX. R. APP. P. 60.2(f). The court should also
address the City’s contention that the case is now moot.
Without hearing oral argument, see TEX. R. APP. P. 59.1, we grant
Zimmerman’s petition for review without regard to the merits, vacate
the judgments of the court of appeals and the trial court, and remand
the case to the trial court for further proceedings.
OPINION DELIVERED: December 30, 2022
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