Case 1:15-cv-00446-RP Document 16 Filed 07/22/15 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION
Perales Serna et al.,
Plaintiffs,
v.
Texas Department of State Health
Services, Vital Statistics Unit et al.,
Defendants.

Civil Action No. 15-cv-00446 RP

DEFENDANTS MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(1) AND

12(b)(6)
TO THE HONORABLE U.S. DISTRICT JUDGE ROBERT PITMAN:
Texas Department of State Health Services, Vital Statistics Unit (DSHS), Interim
Commissioner Kirk Cole, in his official capacity, and State Registrar Geraldine Harris, in her
official capacity, collectively (Defendants) file this Motion to Dismiss under Fed. R. Civ. P.
12(b)(1) and 12(b)(6):
I. BACKGROUND
Plaintiffs Maria Isabel Perales Serna on her own behalf and as next friend for her minor
daughter, K.Z.P.S.; Luisa Ines Barragan Gutierrez on her own behalf and as next friend for her
minor son, L.A.B; Maria del Rosario Teran Uriegas on her own behalf and as next friend for her
minor son, S.Z.; Nancy Garcia Castro on her own behalf and as next friend for her minor
children, L.M., J.M. and Y.M.; Rosa Isela Garcia Naranjo on behalf of her minor son F.D.;
Flavia Garza on her own behalf and on behalf of her minor sons D.G. and S.G.; Juana Gomez on
her own behalf and on behalf of her minor daughter E.S.; Diana Hernadez and Javier Reyes on
their own behalf and on behalf of their minor son M.A.R.H.; Nancy Hernandez on her own

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behalf and on behalf of her minor daughter R.J.H.; Marta Ibarra Luna and Juan Carlos Rodriguez
Valasquez, on behalf of their minor daughter, Y.R.R.I.; Katerine Johana Portillo on her own
behalf and on behalf of her minor daughter, K.E.P.; Marcelina Rangel Martinez for her minor
children A.M.P. and S.A.P.; Antonia Rodriquez on her own behalf and on behalf of her minor
daughter J.N.A.R.; Damaris Romero Hernandez de Reyes on her own behalf and on behalf of her
minor sons J.R.R. and G.G.R.; Brizeida Sanchez on her own behalf and on behalf of her minor
children, B.L.R. and L.A.R.; Yveth Vega Diaz on behalf of her minor daughter N.Y.R.; Fany
Ventura on her own behalf and on behalf of her minor daughter E.I.H., collectively (Plaintiffs)
filed suit on behalf of themselves and as next friends for their Plaintiff children, who were born
in Texas and are citizens of the United States. Plaintiffs bring this claim pursuant to 42 U.S.C.
1983 and 28 U.S.C. 2201 seeking declaratory and injunctive relief. Plaintiffs allege that by
rejecting Matriculas Consular as reliable forms of identification in support of applications for
birth certificates, Defendant officials have refused, and continue to refuse, to provide the adult
Plaintiffs with certified copies of the birth certificates for their Texas-born sons and daughters,
and that such refusal is de facto based upon the immigration status of the Plaintiff parents.
Plaintiffs further allege that the lack of a birth certificate is causing serious harm to all Plaintiffs.
Plaintiffs contend Defendants' actions violate the Equal Protection Clause of the Fourteenth
Amendment, as well as the Supremacy Clause.
II. ARGUMENT

FAILURE OF SUBJECT MATTER JURISDICTION

ELEVENTH AMENDMENT

Defendants Motion to Dismiss

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Under the Eleventh Amendment to the Constitution, the Court lacks jurisdiction over all
claims against DSHS and such claims should accordingly be dismissed under Rule 12(b)(1). The
Eleventh Amendment provides: The Judicial power of the United States shall not be construed
to extend in any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens or Subjects of any Foreign State. U.S. CONST. AMDT. XI. Under the Eleventh
Amendment, [a]bsent waiver, neither a State nor agencies acting under its control may be
subject to suit in federal court. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (quoting Welch v. Tex. Dep't of Highways &
Pub. Transp., 483 U.S. 468, 480, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987), including suit by a
States own citizens. Employees v. Missouri Public Health & Welfare Dept, 411 U.S. 279, 294
(1973). The Eleventh Amendment thus bars all four Causes of Action plaintiffs have brought
against DSHS.
Eleventh Amendment immunity also extends to officials acting in their official capacities
when, as here, the state is the real, substantial party in interest. Pennhurst State School & Hosp.
v. Halderman, 465 U.S. 89, 101 (1984). Excepted from this rule is a suit that seeks to enjoin
unconstitutional conduct of a state official. Ex parte Young, 209 U.S. 123 (1908); Pennhurst,
465 U.S. at 102. The exception recognized in Ex parte Young, however, does not apply when the
officials conduct is alleged to be a violation of state law, as opposed to federal law. Id. at 106,
117 (The reasoning of our recent decisions on sovereign immunity thus leads to the conclusion
that a federal suit against state officials on the basis of state law contravenes the Eleventh
Amendment whenas herethe relief sought and ordered has an impact directly on the State
itself.) Nor does the doctrine of pendent jurisdiction serve to restore the jurisdiction defeated by
the Eleventh Amendment. Id. at 121 (We concluded above that a claim that state officials
Defendants Motion to Dismiss

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violated state law in carrying out their official responsibilities is a claim against the State that is
protected by the Eleventh Amendment. . . . We now hold that this principle applies as well to
state-law claims brought into federal court under pendent jurisdiction.) Thus, the Eleventh
Amendment also bars the state law claims in Plaintiffs Fourth Cause of Action against
Defendants Cole and Harris.
FAILURE OF SUBJECT MATTER JURISDICTION
STATE SOVEREIGN IMMUNITY
Under state sovereign immunity, the State and its agencies are generally immune from
suit unless the State gives its consent to be sued. Tex. Dept of Transp. v. Andrews, 155 S.W.3d
351, 356 (Tex.App.Fort Worth 2004, pet. denied). A state has the authority to waive its
sovereign immunity by statute or by resolution. Tex. Natural Res. Conservation Commn v.
IT Davy, 74 S.W.3d 849, 85354 (Tex. 2002)(citing cases). The statute must clearly,
unambiguously, and unequivocally express an intent to waive the state's sovereign
immunity. Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 165960, 179 L.Ed.2d 700 (2011);
ITDavy, 47 S.W.3d at 85354 (Legislative consent to sue the State must be expressed in clear
and unambiguous language. ); Tex. Gov. Code 311.034 ([A] statute shall not be construed as
a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous
language.). [W]here a statute is susceptible of multiple plausible interpretations, including one
preserving immunity, we will not consider a State to have waived its sovereign immunity.
Sossamon, 131 S.Ct. at 1659. The standard for finding waiver is high. See Edelman v. Jordan,
415 U.S. 651, 673 (1974); Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir.2002).
Plaintiffs have failed to plead a waiver of sovereign immunity.

Defendants Motion to Dismiss

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The Constitutional Claims. Plaintiffs constitutional claims (First, Second and Third
Causes of Action) all lie under 42 U.S.C. 1983, but 1983 was not intended to be a waiver of
sovereign immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 67 (1989)(We cannot
conclude that 1983 was intended to disregard the well-established immunity of a State from
being sued without its consent.); Quern v. Jordan, 440 U.S. 332, 341 (1979) (stating that 1983
does not override the traditional sovereign immunity of the States).
The State Law Claim. Plaintiffs Fourth Cause of Action (Pendant [sic] State Claim) is
a rule challenge under the Texas State Administrative Procedure Act (APA), Government
Code, 2001 et seq.1 The APA does provide a means to challenge the validity or applicability
of a rule and includes a waiver of sovereign immunity, but the waiver is strictly limited to an
action that a) is against the state agency, Government Code 2001.038(c), and b) must be filed
in Travis County District Court. Id. at 2001.038(d). [A] State does not consent to suit in
federal court merely by consenting to suit in the courts of its own creation. College Sav. Bank
v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999), citing Smith v.
Reeves, 178 U.S. 436, 441-45 (1900); Pennhurst State School & Hosp. v. Haldeman, 465 U.S. at
100, n. 9 ([T]he Court consistently has held that a States waiver of sovereign immunity in its
own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.).
Subject matter jurisdiction thus fails as to all four Causes against DSHS and fails as to
the APA, state law rule challenge against Defendants Cole and Harris in their official capacities.

1
As discussed above, Plaintiffs Fourth Cause of Action is barred by the Eleventh Amendment, as applied
by the United States Supreme Court in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101 (1984).

Defendants Motion to Dismiss

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FAILURE TO STATE A CLAIM

DSHS NOT A PERSON UNDER 1983
DSHS is not and cannot be a person under 42 U.S.C. 1983, Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71 (1989)([N]either a State nor its officials acting in their official
capacity are persons under 1983,), and Plaintiffs constitutional claims must necessarily be
brought under that statute.2 All three constitutional law claims under 1983 against DSHS must
accordingly be dismissed.3
FAILURE TO STATE A CLAIM
SUPREMACY CLAUSE AND PREEMPTION
Plaintiffs allege that The federal government has preempted the field of immigration,
especially matters involving the rights, privileges, and penalties applicable to persons present in
this country who have not yet attained legal immigration status. (Doc. 6, 131.) Without
citation or any other identifying reference to any specific law or regulation, Plaintiffs then allege
Specifically, Congress has promulgated extensive statutory provisions and regulations with
regard to such immigrants documentation, employment, benefits, shelter, penalties, and
numerous other matters. (Id. at 132.) Rather than identifying any specific state law or rule
that fails under the Supremacy Clause, Plaintiffs refer instead to conduct: Defendants have
violated the Supremacy Clause of the United States Constitution by refusing to accept valid
consular identification cards and/or valid foreign passports. (Id. at 136.) Reading these

Federal constitutional claims must necessarily be brought under 42 U.S.C. 1983. See Hearth, Inc. v.
Dept of Pub. Welfare, 617 F.2d 381, 382 83 (5th Cir. 1980) (Congress provided 42 U.S.C. 1983 as the method for
seeking relief against a state official for a federal constitutional violation); see also Burns Toole v. Byrne, 11 F.3d
1270, 1273 n.3 (5th Cir. 1994); see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.
2001) (a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the
United States Constitution but must utilize 42 U.S.C. 1983).
3
Will recognizes that a state official in his or her official capacity, when sued for injunctive relief, would be
a person under 1983 because official-capacity actions for prospective relief are not treated as actions against the
Defendants Motion to Dismiss

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pleadings liberally, Plaintiffs must be claiming that federal law preempts State law and the only
State law and State rule identified in the Amended Complaint are Texas Health and Safety Code
191 and 25 Texas Admin. Code 181. These govern applications for certified copies of birth
certificates, including the forms of identification that must accompany the application (the
Texas law, as used below). (Id. at 28-33, 43.) If that is indeed their claim, it is not a claim
upon which relief may be granted and it should be dismissed.
The burden of persuasion in preemption cases lies with the party seeking annulment of
the state statute. AT&T Corp. v. Public Utility Comn of Texas, 373 F.3d 641, 645 (5th Cir.
2004). The three forms of federal preemption are described in the recent Supreme Court case,
Arizona v. United States, 132 S.Ct. 2492 (2012). First, and sometimes characterized as express
preemption, Congress may withdraw specified powers from the States by enacting a statute
containing an express preemption provision.

Id. at 2500-01.

Second, and sometimes

characterized as field or implied preemption, the States are precluded from regulating conduct
in a field that Congress, acting within its proper authority, has determined must be regulated by
its exclusive governance.

Id. at 2501.

Third, and sometimes characterized as conflict

preemption, state laws are preempted when they conflict with federal law. . . . This includes
cases where compliance with both federal and state regulations is a physical impossibility, . . .
and those instances where the challenged law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of the Congress. Id.
Plaintiffs have not alleged nor does there exist a federal statute that expressly preempts
the Texas law and thus express preemption fails. Nor have Plaintiffs identified any specific
conflict between federal and state law of a nature that gives rise to conflict preemption. They

State. 491 U.S. at 78, n.10.

Defendants Motion to Dismiss

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have not even identified any specific federal law with which the Texas law conflicts. Rather,
their allegations, vague as they are,4 can only be with respect to field preemption, as reflected in
paragraphs 131 and 132 of their Amended Complaint. (Doc. 6.)
The Supreme Court has stated that field preemption arises when [t]he intent to displace
state law altogether can be inferred from a framework of regulation so pervasive . . . that
Congress left no room for the States to supplement it or where there is a federal interest . . . . so
dominant that the federal system will be assumed to preclude enforcement of state laws on the
same subject. Arizona, 131 S.Ct. at 2501 (citations omitted). The Court in Arizona observed
In preemption analysis, courts should assume that the historic police powers of the States are
not superseded unless that was the clear and manifest purpose of the Congress. Id.
Further guidance in field preemption analysis with respect to immigration is found in
LeClerc v. Webb, 419 F.3d 405, 423 (5th Cir. 2005), rehg en banc denied, 444 F.3d 428 (2006),
which draws upon DeCanas v. Bica, 424 U.S. 351 (1976):
Despite the federal government's primacy over the regulation of immigration, not every
state enactment which in any way deals with aliens is a regulation of immigration and
thus per-se preempted .... De Canas, 424 U.S. at 355, 96 S.Ct. at 936. The Constitution,
by committing regulation of immigration to the federal government, did not deprive the
states of all power to legislate regarding aliens. Id. Nevertheless, ostensibly harmonious
state regulation may run afoul of the Supremacy Clause if it, in effect, interferes with the
goals of federal policy. Id. Yet, even in this context, [f]ederal regulation ... should not be
deemed preemptive in the absence of persuasive reasonseither that the nature of the
regulated subject matter permits no other conclusion, or that the Congress has
unmistakably so ordained. Id. at 356, 96 S.Ct. at 937 (internal citation omitted).

4
Vague allegations of preemption do not even permit meaningful analysis. Little aid can be derived from
the vague and illusory but often repeated formula that Congress by occupying the field, has excluded from it all
state legislation. Every Act of Congress occupies some field, but we must know the boundaries of that field before
we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution. To
discover the boundaries we look to the federal statute itself, read in the light of its constitutional setting and its
legislative history. DeCanas v. Bica, 424 U.S. 351, 360, n. 8 (1976)(citations omitted).

Defendants Motion to Dismiss

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Against this backdrop of controlling law, Plaintiffs allegations at best amount to a claim
of per se preemption because immigration is involveda notion that DeCanas and LeClerc
reject. Beyond such a per se claim, Plaintiffs have made no effort to identify any preempting
federal statute, much less demonstrate a level of pervasiveness of federal regulation within a
defined field that deprives Texas of its power to control the circumstances under which it will
provide copies of birth certificates.

Accordingly, Plaintiffs Supremacy Clause and

Preemption claim should be dismissed for failure to state a claim upon which relief may be
granted.
III. PRAYER
For the foregoing reasons, Texas Department of State Health Services Vital Statistics
Unit, Interim Commissioner Kirk Cole, in his official capacity and State Registrar Geraldine
Harris, in her official capacity, respectfully request that this Court dismiss Plaintiffs First
Amended Complaint.
Respectfully Submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
ANGELA V. COLMENERO
Chief, General Litigation Division
/s/ Thomas A. Albright
THOMAS A. ALBRIGHT
Texas Bar No. 00974790
Attorney-in-Charge
Defendants Motion to Dismiss

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Assistant Attorney General

General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2120
(512) 320-0667 (Fax)
ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE
I hereby certify that on this, the 22nd day of July, 2015, a true and correct copy of the
foregoing document has been filed with the courts CM/ECF electronic case management
system, thus providing service to the following participants:
Efren Carlos Olivares
Texas Civil Rights Project
P.O. Box 219
Alamo, TX 78516
956-787-8171 ext. 108
Fax: 956-787-6348
James C. Harrington
Texas Civil Rights Project
1405 Montopolis Drive
Austin, TX 78741
(512) 474-5073
Fax: (512) 474-0726
Jennifer K. Harbury
Texas Rio Grande Legal Aid, Inc.
TRLA, 300 S. Texas Blvd.
Weslaco, TX 78596
956-447-4800
Fax: 956-968-8823
ATTORNEYS FOR PLAINTIFFS
/s/ Thomas A. Albright
THOMAS A. ALBRIGHT
Assistant Attorney General
Defendants Motion to Dismiss

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