Vianna Davila, Texas Tribune Propublica

"How Ken Paxton is stretching the boundaries of consumer protection laws to pursue political targets" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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The men knocked on the door of a two-story, red-brick building in downtown El Paso one chilly morning in February. When a volunteer answered, they handed her a document they said gave them the right to go inside and review records kept by Annunciation House, a nonprofit that for decades has served immigrants and refugees seeking shelter.

An employee phoned Ruben Garcia, the nonprofit’s director and founder, who was at one of the organization’s other properties. Feeling a calling to do more to help immigrants and other people experiencing poverty, Garcia was part of a small group that formed the nonprofit in the 1970s. He’s since become an unofficial historian of the migration patterns and political response to immigration and immigrants.

But in his nearly five decades helming the nonprofit, Garcia had never encountered a situation like this. Standing on the organization’s doorstep were officials sent there by Texas Attorney General Ken Paxton’s Consumer Protection Division. They were demanding to come inside and search the nonprofit’s records, including all logs identifying immigrants who received services at Annunciation House going back more than two years.

“Is this a warrant?” Garcia recalls asking the group, which included an assistant attorney general and a law enforcement officer from the state agency.

It wasn’t. Still, the letter the men presented stated that the attorney general’s office had the power to immediately enter the building without one.

Consumer protection laws give attorneys general broad legal authority to request a wide range of records when investigating businesses or charities for allegations of deceptive or fraudulent practices, such as gas stations that hike up fuel prices during hurricanes, companies that run robocalling phone scams and unscrupulous contractors who take advantage of homeowners.

But attorneys general have increasingly used their powers to also pursue investigations targeting organizations whose work conflicts with their political views. And Paxton, a Republican, is among the most aggressive. “He’s laying out kind of like the blueprint about how to do this,” said Paul Nolette, an expert in attorneys general and director of the Les Aspin Center for Government at Marquette University.

An analysis by ProPublica and The Texas Tribune shows that in the past two years, Paxton has used consumer protection law more than a dozen times to investigate a range of entities for activities like offering shelter to immigrants, providing health care to transgender teens or trying to foster a diverse workplace.

Not a single one of the investigations was prompted by a consumer complaint, Paxton’s office confirmed. A complaint is not necessary to launch a probe.

The analysis is possibly an undercount. The attorney general’s office said it has not consistently maintained a list of the Consumer Protection Division’s demands to examine records and would need to review individual case files to determine how many requests had been sent. The agency also fought the release of certain records requested under Texas’ Public Information Act, citing exceptions for anticipated litigation.

[Here are the organizations that Ken Paxton targeted using consumer protection laws]

Paxton’s office did not respond to requests for comment or to detailed questions. It also did not reply to a request to speak with the Consumer Protection Division’s chief.

Two attorneys representing nonprofits that Paxton recently targeted said they believe he launched the investigations simply to harass their clients and to cause a chilling effect among organizations doing similar work. Both said the attorney general’s demands violate the First Amendment, which guarantees the right to free speech, association and religion, and the Fourth Amendment, which offers protection against unreasonable search and seizure.

The political weaponization of consumer protection divisions by Paxton and other attorneys general appears to be “a core violation” of constitutional laws that runs counter to what these divisions were established to do, said Georgetown Law professor Michele Goodwin.

The offices were intended to protect the public, Goodwin said. “Instead,” she added, “what is taking place in these times are efforts that undermine the civil liberties and the civil rights of people who are the public in those states and the people who are in those states who are seeking to aid and assist the public.”

In the Annunciation House case, the attorney general’s office went even further by showing up at the nonprofit’s door and demanding to immediately review documents rather than sending its requests for records by mail and giving organizations weeks to respond, as it often has in other cases ProPublica and the Tribune examined.

Paxton’s office then denied the nonprofit’s request for additional time to determine what information it was legally required to turn over, prompting Annunciation House to sue. In response, the attorney general’s office argued in court documents that the nonprofit had forfeited its right to operate and publicly accused it of acting as a stash house for immigrants he alleges are in the country illegally.

The attorney general’s move to shutter Annunciation House drew swift rebuke from political and religious leaders, who said his characterizations of the nonprofit were a dangerous misrepresentation of the charity. Paxton’s actions also sparked concern as far away as the Vatican. In a recent interview with CBS News, Pope Francis called Paxton’s efforts “madness, sheer madness.”

“The migrant has to be received,” the pope said on the television news program “60 Minutes.” “Thereafter you see how you’re going to deal with them. Maybe you have to send them back. I don’t know. But each case ought to be considered humanely, right?”

Annunciation House primarily serves people who are processed and released into the U.S. by immigration officials. Garcia communicates daily with Border Patrol and other federal agencies that regularly ask for help finding shelter for people who turn themselves in to authorities or are apprehended but have nowhere to go while their cases are processed.

In March, an El Paso state district judge temporarily blocked the attorney general’s efforts to obtain Annunciation House’s records and said the state must go through the court system to continue the investigation. “There is a real and credible concern that the attempt to prevent Annunciation House from conducting business in Texas was predetermined,” the judge wrote in his order.

Even when Paxton doesn’t get speedy access to the documents he wants, he often publicizes these typically confidential cases, putting out news releases that draw headlines and build support among his base of hard-line conservatives.

The simple act of publicizing that he is pursuing an organization can cause irreparable harm, said Jerome Wesevich, an attorney who represents Annunciation House.

“Someone has to say what is the line between a legitimate investigation and harassment,” Wesevich said.

As the Annunciation House case progresses through the courts, Paxton has continued his public attacks on the nonprofit. On May 8, Paxton announced in a press release that he had filed a court injunction to stop what he called Annunciation House’s “systemic criminal conduct.” He then issued a warning to other nonprofits that assist immigrants, saying that those that are “complicit in Joe Biden’s illegal immigration catastrophe and think they are above the law should consider themselves on notice.”

He again called for the charity to be shut down.

Evolving power

The consumer protection cases that Paxton and like-minded attorneys general are pursuing today are virtually unrecognizable from the historically bipartisan and apolitical ones their counterparts undertook even 20 or 30 years ago, said James Tierney, a former Maine attorney general.

“The people that the laws were designed for were working-class people who were getting ripped off when they bought a used car,” said Tierney, who directs the attorney general clinic at Harvard Law School. While many attorneys general still do that work, consumer protection laws are also increasingly “being used to obviously move social agendas.”

The push to protect consumers was among numerous social movements that began to materialize in the 1960s and 1970s as Americans demanded more government action in areas like civil rights and environmental justice. As a result, states began to adopt laws that gave attorneys general the ability to investigate potential fraudulent activity by businesses.

Federal and state institutions also started encouraging attorneys general to think of themselves as representing not only the state but also the people who lived there. “This shift was significant because by serving as the representatives of individuals and groups allegedly harmed by corporate conduct, AGs essentially became a form of class-action litigator,” Nolette, the Marquette professor, wrote in his book, “Federalism on Trial.”

Initially, attorneys general focused consumer protection investigations in their own states. By the 1980s, however, the scope of the investigations began to change as the attorneys general offices started to work across state lines to target large industries.

Perhaps the most notable example is the decision by all 50 state attorneys general to sue tobacco companies in the 1990s. They successfully argued the industry misled consumers about the dangers of cigarettes and other tobacco products and intentionally marketed them to children. The lawsuits resulted in billions of dollars in settlement money. More recently, attorneys general across the country pursued similar multistate suits against the opioid industry and pharmaceutical supply chain.

The power of attorneys general continued to grow through the decades as Congress passed measures that empowered states to enforce federal law and the courts interpreted ambiguities in the law in such a way that made it easier for states to sue under federal statutes.

A number of other court decisions unrelated to consumer protection further changed the role of attorneys general. As states found it easier to bring cases that are similar to class-action suits, the Supreme Court issued rulings in the early 2010s that made it harder for private litigants to do so. The decisions essentially drove those cases to attorneys general, Tierney said.

A 2014 Supreme Court decision that lifted limits on individual campaign contributions raised the stakes of attorneys general campaigns and created “a funnel for dark money to flow into every AG race,” Tierney said.

“The machine is up and running,” Tierney said, “and will continue to run unless someone figures out how to stop it.”

Stretching the boundaries

Although Paxton has used consumer protection law to investigate a wide range of organizations with which he disagrees politically, he has perhaps most aggressively pursued those that provide or support gender-affirming care for minors.

Over the past two years, his office has launched at least six investigations into hospitals, pharmaceutical companies and an LGBTQ+ advocacy and support group, often demanding records that include sensitive patient information.

These investigations came amid a growing wave of conservative initiatives in Texas and across the country that have worked to chip away at the rights of transgender people. At least 25 states ban gender-affirming care for minors in some way, according to the Human Rights Campaign.

Texas was not among those states when, in August 2021, then-state Rep. Matt Krause, a Republican who the same year launched an investigation into school library books that dealt with topics like sexuality and race, wrote to Paxton asking for an opinion on whether gender-affirming care for children amounted to child abuse. In February 2022, Paxton issued a nonbinding legal opinion that said it did.

Days later, Gov. Greg Abbott directed the Texas Department of Family and Protective Services to investigate parents who authorized such treatment for their children, a move that spurred both condemnation — including from families, medical professionals and the White House — and fear across the state and country. These investigations are on hold following several court rulings.

As Abbott ordered the state agency to go after parents, Paxton began launching investigations into organizations that provide or support gender-affirming care for transgender minors.

One of those targeted entities was Dell Children’s Medical Center in Austin. In May 2023, one of Paxton’s Consumer Protection lawyers sent a letter to the hospital demanding documents related to the use of puberty blockers and counseling for transgender youth. Three weeks later, the same lawyer sent a letter seeking similar records from Texas Children’s Hospital in Houston. In a news release announcing the investigation, Paxton said his office was examining whether the facility was “unlawfully” providing gender transition care.

At the time that the letters were sent to the hospitals, a law preventing transgender minors from getting puberty blockers and hormone therapies was working its way through the Legislature. The law ultimately passed, but it did not go into effect until Sept. 1.

Dell Children’s did not respond to an interview request. Texas Children’s Hospital declined to comment for this story.

In the months that followed, Paxton went even further. He began to investigate organizations outside of Texas for their connections to gender-affirming care: Seattle Children’s Hospital in Washington state; QueerMed, a telehealth clinic based in Georgia; and PFLAG Inc., a Washington, D.C.-based national nonprofit that supports LGBTQ+ people and their families.

Seattle Children’s Hospital sued the attorney general in December to block the release of any patient records, arguing that handing them over would violate federal and state health care privacy laws. The hospital said in legal filings it had no staff that treated transgender children in Texas or remotely.

Paxton has not answered questions about why he decided to investigate out-of-state facilities, but in court filings in the Seattle case, the attorney general’s office argued it has the right to investigate the hospital and other organizations registered to do business in Texas. The demand letter sent to the hospital asked for records related to the facility’s gender-affirming treatment of children who reside or used to reside in Texas. (The news organizations filed a public information request for the investigative letter Paxton sent to QueerMed, but the attorney general’s office is fighting its release, citing exceptions when information is related to pending or anticipated litigation.)

What seems to unite all three cases is that the attorney general’s office under Paxton “is going to use consumer protection law to stretch the boundaries of what they can do to try to make transgender care as minimal as possible in Texas,” said Colin Provost, an associate professor of public policy at University College London whose research has included how attorneys general in the U.S. work together to enforce consumer protection laws.

Paxton and Seattle Children’s reached a settlement in April. As part of the deal, the hospital agreed to withdraw its Texas business license. In exchange, Paxton dropped his demand for records.

QueerMed founder Dr. Izzy Lowell declined to comment for this story. But the doctor said in an interview with The Washington Post that Paxton’s push to access transgender youths’ medical records was “a clear attempt to intimidate providers of gender-affirming care and parents and families that seek that care outside of Texas and other states with bans.”

PFLAG sued Paxton’s office in February after the attorney general demanded its records. In court filings, Paxton alleged that the nonprofit had information about medical providers in the state that may have been committing insurance fraud. The attorney general accused health care professionals of providing gender-affirming care but disguising it as treatment for an endocrine disorder.

A Travis County district court judge issued an injunction in March that temporarily blocked the state’s access to the records. In her ruling, she wrote that failing to stop the attorney general from getting these records could result in PFLAG and its members suffering harm, including limitations on their First Amendment and Fourth Amendment rights. Paxton appealed her ruling. The 3rd Court of Appeals, which is hearing the case, has issued a temporary order protecting PFLAG from Paxton’s demands for records.

Karen Loewy, a lawyer with Lambda Legal, which is representing PFLAG, said she remains baffled by the attorney general’s decision to use the state’s consumer protection law to investigate organizations like PFLAG, which provides resources to chapter support groups in the state.

“There's no consumer fraud happening here at PFLAG’s hands,” Loewy said.

Yet, she said, the attorney general appears to believe that he can send these demands to anyone his office thinks has information related to an investigation. In a court filing in response to PFLAG's lawsuit, Paxton’s office admitted it does not believe the nonprofit is violating the state’s consumer protection law, known as the Deceptive Trade Practices Act. The attorney general, however, argued in the filing that it can demand records of anyone, “not just those suspected of a violation.”

"The way in which the AG’s office has argued this already shows that they think that their power is unlimited,” Loewy said.

Sending a message

Just as Paxton’s campaign against transgender care for minors has sent a chill through the network of people who provide this medical care, the impacts of the attorney general’s investigation of Annunciation House are reverberating throughout the community of people who work with migrants.

On Friday, Annunciation House’s lawyers filed a motion to throw out the attorney general’s case. Aside from arguing that Paxton’s claims about the organization are unfounded, the nonprofit said in the legal filings that the probe has caused harm that is “not only imminent, it is ongoing.”

Immediately after the attorney general officials showed up at the nonprofit’s offices in February, three Annunciation House volunteers quit, including the woman who answered the door. They worried the situation was “more unpredictable” than they could handle, Garcia said.

According to court records filed by Annunciation House attorneys, some volunteers have received threatening phone calls. The filings also state that the city of El Paso started stationing security guards at all of the nonprofit’s shelters “around the clock” to protect the people who are staying there.

“It’s scaring people from wanting to volunteer with us,” Garcia said. “It’s scaring people from wanting to work with the refugees.”

Las Americas Immigrant Advocacy Center, an El Paso-based nonprofit that works with Annunciation House and provides legal services to immigrants and refugees on both sides of the border, has not lost volunteers, but the organization’s executive director, Marisa Limón Garza, said people were rattled by the fact that employees from Paxton’s office showed up at a fellow nonprofit’s door demanding access.

“If it’s a letter in the mail, that’s one thing,” Limón Garza said. “But coming and trying to access the space, that’s a different level of state intervention that definitely sends a chilling effect. It sends a message.”

That message changed how Las Americas operates. It updated its security and technology systems at a cost of $25,000, money the nonprofit’s leadership hadn’t planned to spend, Limón Garza said. The organization also better secured its internal files, got new cellphones and laptops, and added new intercom and doorbell screening systems.

It no longer allows walk-ins.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/05/30/ken-paxton-texas-ag-political-targets-health-care-lgbtq/.

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