A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. – Chapter 37, Texas Civil Remedies and Practices Code
Hempstead – In Texas, when they start to argue about the legality of guns – who can have them, where and when they can carry them, and how – the knives come out. Sometimes, they use them to draw a line in the sand.
Waiting for a ruling from District Judge Albert McCaig is a double or nothing study in anxiety which – if the other shoe drops – “…it’s this times $350 per hour,” said Texas Carry Director Pastor Terry Holcomb, Sr., an open firearms carry activist who admitted from the witness stand his initial reaction was fear when he learned he’d been sued in this dispute over guns.
Judge McCaig ruled a week ago last Friday that he will have to pay reasonable attorney’s fees because he refused to dismiss a pre-emptive lawsuit filed against him by the District Attorney of Waller County. That leaves he and his family open to similar rulings in jurisdictions all across the state, his attorney T. Edwin Walker explained.
Holcomb sent complaints to 76 jurisdictions in Texas protesting their display of signs that prohibit visitors to public buildings from carrying firearms or other weapons, a practice he says is in defiance of an Attorney General’s opinion that under a law enacted by the Legislature in 2015 it’s okay to carry the items of personal defense or something as simple as a nail clippers or a small pocket knife with which to open the mail – as long as one sticks to areas that do not house courtrooms of the clerk’s offices that service them.
Holcomb received only the one reply, the lawsuit from Waller County. Quite simply, he cannot afford to answer an additional 75 lawsuits in district courts, where a defendant is prohibited from appearing without adequate legal counsel – that is, expensive legal counsel.
But there is another element to the hearing in which Judge McCaig reserved his judgment on a matter of equal importance, that of the requested relief of declaratory judgment, a uniform provision of civil law that “…is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed as to effectuate its general purpose to make uniform the law of those states that enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees…”
Because the law in question is to be interpreted by the Attorney General, Holcomb’s attorney argued, the court in this rural city on the coastal plain has no true jurisdiction.
He also argued that the Court has no jurisdiction in which to issue declaratory relief. That’s because only a Court in Travis County where the Attorney General representing an injured party, the people of the State of Texas, could receive binding declaratory judgment that would offer the protection of “collateral estoppel.”
That concept protects a litigant from repeated causes of civil action that could bleed his coffers dry over a relatively short period of time, as he answers suits in multiple courts equally without jurisdiction to put a final hammer on the allegation of complaint – once and for all.
In his motion, Holcomb requested the dismissal of the suit under Chapter 27 of the Texas Civil Practices and Remedies Code, in which he cited the lawsuit not only lacked proper jurisdiction in the District Court at Waller County, but sought to deny him “the right to free speech; the right to petition, and the right of association” guaranteed by the First Amendment.
In his concluding remarks, Walker told Judge McCaig, “Terry Holcomb does not have the ability to injure Waller County,” and that therefore, “a court does not have the jurisdiction to issue a declaratory judgment if it will not completely eliminate a controversy…”
If Holcomb is forced to appeal the secondary issue of declaratory judgment, he fears he will be facing attorney’s fees double those he now faces.
To add insult to the injury, any attorney representing any of an additional 75 political subdivisions throughout Texas could seek similar declaratory judgment, forcing additional legal expenses in hearings, depositions, and the legal writings of learned counsel necessary to answer petitions of suit in civil courts where Holcomb issued written complaints.
He’s sweating it out during a less than cheerful holiday season while the busy 506th District Court hears two extended criminal trials and tends to its dockets. The judge must rule within a certain amount of time.