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Hempstead – Within moments after court adjourned, spectators and advocates flooded the corridors of the Waller County Courthouse asking, “What’s the difference?”
The inquiry – echoed on social media throughout the state within the hour – refers to a ruling by District Judge Albert McCaig, who held in a motion to dismiss a lawsuit filed preemptively against Texas Carry Director Terry Holcomb, Sr. that there is a difference in making a complaint, and demanding an action on the part of a government.
The decision came on the heels of an impassioned plea by Holcomb’s attorney T. Edwin Walker, who drew polite, but nervous laughter when he told the Court, “Americans love to complain.”
In the lawsuit, he argued against the policy of prohibiting guns, pocket knives and others items by seeking declaratory judgment against the actions of Open Carry in 76 jurisdictions to require the Attorney General to pursue a complaint that citizens are being denied the right guaranteed by a 2015 law to go armed in public buildings, except in areas occupied by courts or the administrative offices of courts.
During witness examination of Holcomb, Walker was repeatedly interrupted by objections by Assistant District Attorney Elizabeth Dorsey, who complained that the questions he asked called for an expert interpretation of the law by a person with no legal training or certification.
Judge McCaig allowed the questions to go forth if they were intended to develop how and why Holcomb came to take the actions he did.
The defense alleged in its answer that Holcomb’s zeal to exercise his First Amendment rights to freedom of speech, association, and petition for redress of grievances has been “chilled” by the prospect of long and drawn-out litigation requiring legal fees, attorney’s pay.
Holcomb said “I have refused to file any further notices” with local officials throughout Texas. “We certainly can’t fight 76 lawsuits at one time.”
Asked about his initial reaction to the lawsuit, which was filed in August, he replied “It was actually one of fear. That was my initial reaction. He has been billed attorney’s fees of $350 per hour for Walker’s services and $200 per hour for those of his assistant.
In further testimony, when asked if he was aware of any statements made by any Waller County officials about his project, personally, the Judge overruled an objection when Walker argued, “I think it goes to the state of mind of County officials.”
Holcomb said he had seen a quote in a social media item, that “I stuck my nose in Waller County business.”
In another incident, he recalled, “The other was by the County Judge (Trey Duhon). He told me I was his huckleberry.” The packed courtroom erupted in titters on hearing the famous line from the motion picture, “Tombstone,” in which Doc Holliday challenges Johnny Ringo to a fatal gunfight in the denouement to the drama of the OK Corral.
Said Walker, “We believe this lawsuit was filed against Terry Holcomb purely because he filed a complaint against him.”
When Judge McCaig ruled, he said, “I acknowledge the right to complain…It’s a demand to take action. Therefore, I will deny your motion to dismiss.”
The Judge has taken under advisement a motion to dismiss declaratory motion on behalf of Waller County.
Attorneys for the State asserted that the law, an amendment to the Local Government Code linked to a subsection of the Penal Code, refers to an entire building where courts are in session or do business, while Open Carry share the opinion issued by the Attorney Genera. AG Ken Paxton takes a plain language approach to the interpretation.
It means only the portions where courts are in session or the clerical offices attached to them, he said in a recent opinion.
Walker argued that the District Court has no jurisdiction to issue declaratory judgment because “A Court does not have the jurisdiction to issue a declaratory judgment if it will not completely eliminate a controversy…there is no injury here…Terry Holcomb does not have the ability to injure Waller County…It does not affect anyone else in the State of Texas. This case is moot, and the Court doesn’t have jurisdiction to rule in a case that is moot.”