In 2019, I  wrote about the Torres v Dept. of Public Safety case here. That case has now been decided in favor of Capt. Leroy Torres, a Texas Guardsmen. The DPS would not accommodate his illness, which he contracted during his tour in Iraq. Capt. Torres then filed suit under the Uniformed Services Employment and Reemployment Act (USERRA).  The USERRA protects persons from discrimination based on military affiliation. It was specifically amended in 1998 to make it clear that the USERRA applied to state agencies in state courts. Despite that amendment, the Corpus Christi Court of Appeals denied Capt. Torres’ appeal in 2018, saying this 1998 amendment was not valid. Capt. Torres then appealed to the Texas Supreme Court. The Texas Supreme Court asked for briefing, but in the end, it refused to even hear the captain’s appeal.

Torres then appealed to the U.S. Supreme Court. In Torres v. Texas DPS, No. 20-603 (6/29/2022), the higher court reversed the Corpus Christi appellate decision. The U.S. Supreme Court found that the amendment – which was made pursuant to the War powers found in the Constitution – was valid. A four justice dissent insists the war powers found in the Constitution do not include subjecting states to private suits for damages. But, any reading of the various war powers found in the Constitution are very broad. They allow no exceptions. Art. I, Sec. 8, for example, provides that Congress can “raise and support Armies” and “provide and support a Navy.” This sentence includes no exceptions or limits. As the majority opinion explains, if one state or even 25 sates refuse to reemploy returning service members, the dissent would say that Congress is powerless to stop such actions. If Congress cannot prevent the states from reemploying service members, then Congress could not hope to provide and support a Navy. Torres, slip op., at 16.

AG’s False Claim

But, even so, as I have mentioned before, Attorney General Paxton did not have to defend the Corpus Christi court. The AG did not have to oppose Torres’ lawsuit. Worse, the AG said things in its defense that were simply not true. The AG made false claims. In its brief, the AG claimed that Texas Guardsmen never suffer discrimination. There is an obscure statute that allows some minimal relief for Guardsmen who endure discrimination. Torres’ lawyer pointed out that the statute had never been used. No one had ever filed suit under that statute. I talked about that statute here. The problem with Govt. Code Sec. 437.412 – besides being obscure – is that it only applies to actual termination and only to termination connected to actual training or active duty. Guardsmen, like Capt. Torres who are not accommodated or who suffer discrimination of a general nature have no recourse. They cannot file suit under Govt. Code Sec. 437.412.

In the AG’s brief, it argued that the reason Govt. Code Sec. 437.412 had never been used was because Texas Guardsmen never experience discrimination. No one ever sued under the statute because no one ever experienced discrimination. Which is patently false. The AG’s office clearly did not speak to any actual Guardsmen before making such a claim. As a long-time Guardsmen and Reservist, I can say that probably every Guardsmen experiences some form of discrimination in every job. That is just a fact of life in the Guard.

See the U.S. Supreme Court decision in Torres v. DPS here.