NO. D-1-GN-08-001133
GENE McARTHUR, III,
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Plaintiff,
v.
GREG ABBOTT, in his official capacity as
ATTORNEY GENERAL FOR THE STATE
OF TEXAS, TODD STAPLES, in his official
capacity as Commissioner of the TEXAS
DEPARTMENT OF AGRICULTURE,
LINDY PATTON in his official capacity as
EXECUTIVE DIRECTOR of the TEXAS
BOLL WEAVIL ERADICATION
FOUNDATION, INC.,
Defendants.
IN THE DISTRICT COURT
53rd JUDICIAL DISTRICT
TRAVIS COUNTY, TEXAS
PLAINTIFF’S FIRST AMENDED PETITION
AND PRAYER FOR DECLARATORY RELIEF
TO THE HONORABLE COURT:
GENE MCARTHUR, III (“McArthur”), Plaintiff, complains of Defendants GREG
ABBOTT, in his official capacity as ATTORNEY GENERAL FOR THE STATE OF
TEXAS, TODD STAPLES, in his official capacity as Commissioner of the TEXAS
DEPARTMENT OF AGRICULTURE, Lindy Patton in his official capacity as Executive
Director (now designated as CEO and president) of the TEXAS BOLL WEAVIL
ERADICATION FOUNDATION, INC., and for cause of action shows:
I.
Pursuant to the Texas Rules of Civil Procedure, Plaintiff pleads that discovery
should be conducted in accordance with a discovery control plan under Civil Procedure
Rule 190.3.
II.
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PARTIES
Plaintiff Gene McArthur, III, is a joint resident of Texas and Alaska who
presently and temporarily resides in Alaska due to the circumstances outlined in the
pleadings below. Plaintiff is a licensed pilot who has been employed in Texas as a cropduster and would continue to be so employed, except that the Texas Boll Weevil
Foundation began requiring that he be (licensed or certified), individually as a
commercial pesticide applicator and because of the circumstances detailed below.
Defendant GREG ABBOTT, Texas Attorney General, is being sued in his official
capacity and on behalf of the Defendants OFFICE OF THE ATTORNEY GENERAL
(OAG), and may be served with citation at Office of the Attorney General, 300 W. 15th
Street, Austin, Travis County, Texas 78701. As Attorney General for the State of Texas,
Defendant ABBOTT is charged by law to represent the State in litigation.
Defendant
Greg Abbot is a party because he determined that a social security number would be
required for licensure as a commercial pesticide applicator and refused to allow a
religious accommodation for Plaintiff.
Defendant Todd Staples, is being sued in his official capacity and on behalf of
Defendant THE TEXAS DEPARTMENT OF AGRICULTURE, and may be served with
citation at the TDA’s Office located at 1700 N. Congress, 11th Floor, Austin, Texas,
78701. Defendant, Todd Staples, is a party because he refused to allow a religious
accommodation for Plaintiff, but rather, referred the matter to the OAG.
Defendant Lindy Patton, is being sued in his official capacity and on behalf of
Defendant TEXAS BOLL WEAVIL ERADICATION FOUNDATION, INC., and may
be served with citation at the TBWEF Office located at 3103 Oldham Lane, Abilene,
Texas, 79602.
Defendant, Lindy Patton, is a party because the Texas Boll Weevil
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Eradication Foundation, Inc. is a quasi-governmental agency tasked by the Texas
Legislature to “plan, carry out, and operate eradication and diapause programs to
eliminate the boll weevil and the pink bollworm from cotton in the state under the
supervision” of the Texas Department of Agriculture, and because of its requirement that
pilots such as Plaintiff be licensed although, under the program, a pesticide which does
not require a license for application is being used.
III.
JURISDICTION AND VENUE
The Court has jurisdiction over this case based on appropriate subject matter
wherein Plaintiff seeks declaratory relief against a State agency based in Travis County,
Texas. TEX. CONST. Art. 5 § 8; TEX. CIV. PRAC. & REM. CODE ANN. § 65.023; TEX.
GOV’T CODE ANN. §§ 24.007, 24.008, 24.011. The Court also has jurisdiction over the
subject matter of this case as Plaintiff seeks preventive relief against a State agency and
officer and/or employee of the State acting in his official capacity for refusal to issue a
commercial pesticide applicator license on the basis of Plaintiff’s religion, under TEX.
CIV. PRAC. & REM. CODE ANN. §§ 110 106.001(a)(1), 106.002.
The Court also has
jurisdiction over the subject matter of this case as Plaintiff seeks declaratory and other
judicial relief against a state agency compelled by 42 USC §§ 666 (13) in violation of 42
USC 2000 bb-1 (a) and (c).
Further, while certain requirements for Plaintiff’s application for licensure may
expire, Plaintiffs’ suit for declaratory relief remains a continuing controversy because
Defendants’ actions are capable of repetition and evading review. Roe v. Wade, 410 U.S.
113, 125 (1973); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911);
Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175,
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178-179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953).
Finally, venue is thus proper in Travis County, Texas, pursuant to Section 15.002
of the Texas Civil Practices and Remedies Code.
IV.
RELEVANT FACTS
Plaintiff is a licensed pilot, and he was employed as a crop duster by L&W Flying
Service, Inc., from 1997 to 2003. During this relevant period, L&W Flying Service had a
contract with Defendant (Boll Weevil Foundation) for participation in the Texas Boll
Weevil Eradication program. Subject to this aforementioned contract, Plaintiff obtained
a license as a commercial pesticide applicator in 1997. On February 28, 2003, Plaintiff’s
license became subject to renewal, and Plaintiff submitted his renewal application to
Defendant Texas Department of Agriculture. Plaintiff did not receive any response to his
renewal application from the Defendant Texas Department of Agriculture. After making
several inquiries, Plaintiff learned that Defendant Texas Department of Agriculture had
“closed” his renewal application because Plaintiff did not supply a Social Security
number.
Plaintiff repeatedly asserted to the Texas Department of Agriculture that compelling
him to provide a Social Security Number for licensure violates federal law and his
religious rights as protected by the Constitutions of the United States and Texas, and
under the Federal Religious Freedom Restoration Act (42 U.S.C. § 2000bb) and the
Texas Religious Freedom Act (TEX. CIV. PRAC. & REM. CODE § 110 et seq.). These
protests were to no avail.
Pursuant to 4 Tex. Admin. Code § 7.25(c), Plaintiff was compelled to file an
application for licensure as opposed to application for renewal because his application
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had been on file for one year.
On May 1, 2007, Plaintiff filed an application for
licensure, a copy of which is attached as Exhibit 1. On November 29, 2007, Plaintiff
supplemented this application to reflect a change in his physical address, in an effort to
comply with 4 Tex. Admin. Code § 2.4, a copy of which is attached as Exhibit 2.
Coincident with the filing of this application, Plaintiff reasserted his rights as
demonstrated by the attached correspondences with the Texas Department of Agriculture
(Exhibit 2) On August 2, 2007, Plaintiff’s attorney requested a religious accommodation,
given that Plaintiff’s religious beliefs preclude his having a Social Security number.
(Exhibit 3)
Throughout this time period of submitting his application and supplementing his
physical address information. Plaintiff received numerous correspondences from the
Texas Department of Agriculture in response to his application indicating that his
application for licensure would not be processed until he provided a Social Security
number. (Exhibit 4) Further, these correspondences stated that if Plaintiff did not submit
a Social Security number, his application would be denied; however, the Texas
Department of Agriculture repeatedly postponed the effective date that his application for
licensure would expire. (Exhibit 4) Effectively, the Texas Department of Agriculture
refused to act to either accept or deny his application for licensure. In an effort to protect
his rights, Plaintiff timely filed a notice of protest on January 7, 2008, pursuant to 2 Tex.
Admin. Code § 2.1(b)(3), based on the Texas Department of Agriculture’s decision
refusing to either accept or deny his application for licensure. (Exhibit 5)
In response to Plaintiff’s notice of protest, Deputy General Counsel for Enforcement
at the Texas Department of Agriculture informed attorney for Plaintiff on January 10,
2008, that Plaintiff’s application was incomplete and therefore remained pending.
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(Exhibit 6) Further, his application had neither been denied nor accepted, and the Texas
Department of Agriculture does not have a rule or policy that automatically renders an
incomplete application denied after a certain period of time. Thus, Plaintiff did not have a
basis for appeal. Additionally, Deputy General Counsel recognized that the validity of
test results required for acceptance of his license application would expire after a certain
period of time passed.
Despite its position that Plaintiff was not entitled to appeal rights, Defendant Texas
Department of Agriculture did request the Child Support Division of the Office of the
Attorney General resolve the issue and received an answer that a valid Texas Driver’s
License would be an acceptable alternative. (Exhibit 6) On or about February 18, 2008,
Plaintiff offered his pilot’s license number, an offer which was rejected on the basis that
the Office of the Attorney General has stated that Plaintiff must have either a Social
Security number or a Texas Drivers License number and date of birth. (Exhibit 7)
On March 20, 2008, Plaintiff reasserted his religious rights and notice of protest in
correspondence with the Texas Department of Agriculture, in an effort to exhaust all
available administrative procedures. (Exhibit 8) However, Plaintiff has not received a
response from Defendant Texas Department of Agriculture.
V.
DEFENDANTS VIOLATED PLATINIFF’S RELIGIOUS FREEDOM RIGHTS
Plaintiff asserts that Defendants’ conduct denying his application for a renewal
license and application for a new license as a commercial pesticide applicator violated
Plaintiff’s religious freedom rights, as recognized by federal and state law. Plaintiff’s
sincerely held religious beliefs prevent him from being identified by a Social Security
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Number. Based on these sincerely held religious beliefs, Plaintiff revoked and rescinded
his Social Security number in 1995. (Exhibit: 9) Throughout his numerous attempts to
obtain a commercial pesticide applicator license, Plaintiff repeatedly requested a religious
accommodation with regard to his applications for licensure based on the provision of the
Texas Religious Freedom Act (TEX. CIV. REM. CODE, Chapter 110) and the Federal
Religious Freedom Restoration Act (42 U.S.C. § 2000bb).
With regard to the Texas Religious Freedom Act, Plaintiff has complied with Section
110.006(a) by providing appropriate written notice on numerous occasions including
May 1, 2007, May 7, 2007, August 2, 2007, November 29, 2007, January 7, 2008, and
March 20, 2008. (Exhibits 1-3, 5, & 8) However, Defendants have repeatedly denied such
requests for a religious accommodation from Plaintiff. In the alternative, Plaintiff asserts
that he is excused from this notice requirement because he satisfies the conditions
provided for by Section 110.006(b). More specifically, the Defendants’ actions
threatening to substantially burden his free exercise of religion are imminent as certain
testing requirements for acquiring a commercial applicator license will expire in the
immediate future. Additionally, Defendants’ actions effectively denying Plaintiffs’
license application without providing Plaintiff due process rights, as discussed in more
detail below, prevented Plaintiff from providing such reasonable notice. Finally,
Defendants, within the 60 day period, proposed to give Plaintiff a religious
accommodation which ended up being unreasonable and not calculated to remove the
substantive burden upon Plaintiffs religious exercise.
Thus, by requiring the Plaintiff to provide a Social Security number, which he does
not have, in order to obtain a commercial pesticide applicator license, Defendants have
substantially burdened Plaintiff’s free exercise of religion, in violation of the Texas
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Religious Freedom Act (TEX. CIV. REM. CODE, Chapter 110) and the Federal Religious
Freedom Restoration Act (42 U.S.C. § 2000bb). Furthermore, Defendants have violated
Plaintiffs rights under the Texas Constitution (TEX. CONST. ART. 1, § 6) by interfering
with his rights of conscience regarding matters of his religious beliefs. Finally,
Defendants’ actions, performed in their official capacities as officers and/or employees of
the State, in refusing to issue Plaintiff a commercial pesticide applicator license and /or
waive this requirement on the basis of Plaintiff’s religious beliefs, violates TEX. CIV.
PRAC. & REM. CODE § 106.001 et.seq.
VI.
DEFENDANTS DENIED PLAINTIFF PROCEEDURAL DUE PROCESS RIGHTS
When the administrative action complained of violates a constitutional provision,
the party has a right to an appeal. Cont’l Cas. Ins. Co. v. Functional Restoration Assocs.,
19 S.W.3d 393, 397 (Tex. 2000); Amarillo v. Hancock, 239 S.W.2d 788, 790 (Tex.
1951). Plaintiff asserts that the Defendants actions in effectively denying his application
for licensure as a commercial pesticide applicator without recognizing his right to a
contested case hearing, as provided by Defendant’s own regulations and Texas statutory
laws, violates his procedural due process rights.
First, Plaintiff was entitled to an administrative hearing conducted by the State
Office of Administrative Hearings, pursuant to Tex. Agric. Code § 12.0202, when the
Texas Department of Agriculture refused his application for renewal of his commercial
pesticide applicator license. Despite this mandatory statutory language, Defendants did
not provide such opportunity for hearing even though the Texas Department of
Agriculture denied or refused his application for renewal of his license. (Exhibit: 10)
Second, Plaintiff was entitled to a contested case hearing, as provided for under 4 Tex.
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Admin. Code § 2.1(b)(3), because Defendant Texas Department of Agriculture
effectively denied his application for new licensure, and Plaintiff timely filed a notice of
protest.
Given Defendants’ denials of Plaintiffs clear rights to contested or administrative
hearings, as guaranteed by state law, Plaintiff has established that Defendants have
deprived Plaintiff of a personal interest sufficient to warrant due process protection.
Pickell v. Brooks, 846 S.W.2d 421, 426 (Tex. App. – Austin, 1992). Further, Plaintiff
asserts that he is entitled to the due process, as provided for in these aforementioned state
statues and regulations, namely the right to a contested and/or administrative hearing. Id.
VII.
PRAYER FOR RELIEF
For these reasons, Plaintiff requests that Defendants be cited to appear and answer
herein, and that Plaintiff have judgment as follows:
1.
A declaration that:
(a) The actions of the Defendants substantially burdened Plaintiff’s free
exercise of religion in violation of the Texas Religious Freedom Act (TEX. CIV. REM.
CODE, Chapter 110);
(b) The actions of the Defendants substantially burdened Plaintiff’s free
exercise of religion in violation of the Federal Religious Freedom Restoration Act (42
U.S.C. § 2000bb);
(c) The actions of the Defendants interfered with the Plaintiff’s rights of
conscience regarding matters of his religious beliefs in violation of the Texas
Constitution (TEX. CONST. ART. 1, § 6);
(d) The actions of the Defendants in refusing to issue Plaintiff a
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commercial pesticide applicator license on the basis of Plaintiff’s religious beliefs
violated TEX. CIV. PRAC. & REM. CODE § 106.001 et.seq.
(e) The actions of the Defendants denying Plaintiff his right to an
administrative hearing, pursuant to TEX. AGRIC. CODE § 12.0202, and a contested case
hearing pursuant to 4 TEX. ADMIN. CODE § 2.1(b)(3), establish that Defendants deprived
Plaintiff of his due process rights.
2.
Costs of suit.
3.
Such other and further relief to which Plaintiff may be justly entitled,
including but not limited to damages within the jurisdictional limits of this court, together
with pre-judgment and post-judgment interest as allowed by law.
Dated: March 24, 2009
Respectfully submitted,
Attorneys for Plaintiff
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