CAUSE NO by MSeYaSwI

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									                                CAUSE NO. D-1-GN-08-001133

GENE McARTHUR, III,                                §         IN THE DISTRICT COURT
                                                   §
            Plaintiff,                             §
                                                   §
v.                                                 §
                                                   §
GREG ABBOTT, in his official capacity as           §           53rd JUDICIAL DISTRICT
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                    §         TRAVIS COUNTY, TEXAS
BOLL WEEVIL ERADICATION                            §
FOUNDATION, INC.,                                  §
                                                   §
            Defendants.                            §

                   PLAINTIFF‟S RESPONSE TO PATTON‟S
                MOTION FOR PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE COURT:

       Gene McArthur, III, Plaintiff, timely files this Response to the Motion for Partial Summary

Judgment of Co-Defendant, Lindy Patton, in his Official Capacity as Executive Director (re-

designated as CEO and President in 2008 per Patton‘s affidavit) of the Texas Boll Weevil

Eradication Foundation, Inc. (―TBWEF‖ or ―Foundation‖) and shows the Court that Summary

Judgment is precluded in this case on the following grounds:

     1. Co-Defendant has failed as a matter of law, to present competent summary judgment
        evidence to establish that Plaintiff‘s cause of action under Federal Religious Freedom
        Restoration Act (―FRFRA‖) is unconstitutional.

     2. Co-Defendant has failed to present competent summary judgment evidence to negate, as
        a matter of law, an essential element Plaintiff‘s cause of action under Texas Religious
        Freedom Act (―TRFA‖). In fact, Plaintiff will show that the TBWEF is a ‗state agency‖
        or in the alternative, that a fact issue remains regarding the classification of the
        Foundation as am agency of the government.



                                                                      Plaintiff’s Response to Patton’s MSJ
                                                                                               Page 1 of 22
   3. Co-Defendant has failed to present competent summary judgment evidence to negate, as
      a matter of law, an essential element Plaintiff‘s cause of action under the Texas
      Constitution (Tex. Const. Art. 1, § 6).

   4. Co-Defendant has failed to present competent summary judgment evidence to negate, as
      a matter of law, an essential element Plaintiff‘s cause of action under Chapter 106 of the
      Texas Civil Practices and Remedies Code. The Foundation has denied McArthur the right
      to participate in its program unless he forsakes the obligations of his religion.

   5. Co-Defendant has failed to present competent summary judgment evidence to negate, as
      a matter of law, an essential element Plaintiff‘s due process cause of action.


                                          I.     FACTS

   a. McArthur‘s Record of Service

       Gene McArthur, III (―McArthur‖), Plaintiff, is a licensed commercial pilot previously

employed as a crop duster with L&W Flying Service, Inc. from 1997 to 2003. During this

relevant period, L&W Flying Service had a contract with the TBWEF to participate in the Texas

Boll Weevil Eradication program to ―conduct aerial application of ULV Malathion for boll

weevil eradication‖ (tab 4). As an employee of L & W Flying, Plaintiff worked as an aerial

applicator for the Texas boll weevil eradication program applying ULV Malathion (Affidavit of

McArthur). The ―pesticide Malathion, which is primarily used in the Boll Weevil Eradication

Program is considered a ‗general-use‘ pesticide and does not normally require a license to apply‖

(tab 32 and affidavit of Plaintiff). As stated by the Deputy General Counsel for the TDA in his

correspondence to Plaintiff, ―under TDA laws a commercial applicator license is not required to

apply currently available Malathion products, a general-use pesticide and the product the

Foundation primarily uses...‖

       Still, the Foundation required all pilots flying under their contactors to be individually

licensed at commercial applicators in order to participate in the program (tab 32). Plaintiff

obtained a commercial pesticide applicator‘s certificate/license in 1997 and on February 28,


                                                                        Plaintiff’s Response to Patton’s MSJ
                                                                                                 Page 2 of 22
2003, Plaintiff‘s license became subject to renewal. In a good faith effort to renew his pesticide

applicator‘s license, McArthur submitted renewal applications, applications fees, and passing

exam scores. To date, the Foundation has never disputed that Plaintiff maintained the training,

experience, and qualifications necessary to work in the program.

    b. McArthur‘s deeply held religious conviction

         Throughout the mid-1990s, McArthur, a devout Christian, earnestly sought through

prayer and Bible study to understand the teachings in the Book of the Revelation of the Holy

Bible about the "Number of the Beast" (Chapter 13) and about God‘s command that Christian

believers cannot be identified by that number (Chapter 14). After this study, McArthur came to

the religious conviction that the Social Security Number (SSN) was the forbidden "Number of

the Beast," and that, as a believing Christian, he could no longer be identified by that number.

Based on these sincerely held beliefs, Plaintiff revoked and rescinded his Social Security number

in 1995 (affidavit).

    c. Co-Defendant‘s Delayed and Discriminatory Response

         In compliance with the Foundation‘s certification requirement, Plaintiff submitted his

renewal application to Texas Department of Agriculture (co-defendant) and wrote ―religious

prohibition‖ in the blank designated for one‘s social security number. Plaintiff did not receive

any response from the TDA, and after making several inquiries, Plaintiff learned that the TDA

had ―closed‖ his renewal application because Plaintiff did not supply a Social Security number.1

Without this applicator‘s license, the TBWEF would not accommodate Plaintiff or otherwise

    1
       Plaintiff repeatedly asserted to the Texas Department of Agriculture that compelling him to provide a Social
Security Number for licensure violates his deeply held religious convictions, 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. 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. (POP Exhibit 7)


                                                                                    Plaintiff’s Response to Patton’s MSJ
                                                                                                             Page 3 of 22
permit him to participate in its program. As a result of his inability to participate in the program,

Plaintiff was fired from L & W Flying.

      II.   OBJECTIONS & MOTION TO STRIKE CO-DEFENDANT‟S „FACTS‟ & EVIDENCE

      Plaintiff denies Co-Defendant‘s claimed ―undisputed facts‖ as well as Co-Defendant‘s

factual and legal conclusions about the elements and constitutionality of Plaintiff‘s causes of

action against the Foundation, particularly those set out on pages 4 – 8.

      In Paragraph 3.01 Co-Defendant contends that ―McArthur has also refused, as an

alternative, to provide TDA with an affidavit stating that McArthur does not have a social

security number.‖ This is incorrect as McArthur provided the TDA with a signed affidavit stating

he ―does not have a social security account number‖ and has ―never had a valid Social Security

account number‖ (see affidavit of Gene McArthur, III). It appears that the TDA ―requires that

[McArthur] use the affidavit form [they] provide...‖ and will not accept Plaintiff‘s properly

executed sworn affidavit (May 19, 2004 letter from TDA to P). By crafting this exception and

creating its own affidavit, the TDA has shown a willingness to except others (weakening any

argument of compelling state interest) and should likewise extend this treatment to Plaintiff.

Nonetheless, the fact that the TDA failed to accept McArthur‘s affidavit or otherwise

accommodate Plaintiff is separate and distinct from and does not alter that the TBWEF had the

ability and duty to accommodate Plaintiff’s religious conviction by waiving or otherwise altering

its licensure requirement. At minimum, the allegedly undisputed ‗fact‘ of whether McArthur has

refused ―to provide TDA with an affidavit that McArthur does not have a social security

number‖ remains a fact issue and must be resolved in favor of the non-movant, Plaintiff.

      In Paragraph 3.02, Co-Defendant contends that the ―Foundation is a private entity...‖

However, the classification of the Foundation as a government agency remains a fact issue and



                                                                         Plaintiff’s Response to Patton’s MSJ
                                                                                                  Page 4 of 22
must be resolved in favor of the non-movant, Plaintiff. As detailed in this Response, the

Foundation possesses many characteristics of a government agency. The TBWEF is a "nominally

a private corporation" that "must be regarded as a Government entity for First Amendment

purposes." Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 383 (1995).

      Finally, movant contends that McArthur‘s claims again Patton fail as a matter of law

―[b]ecause the Foundation does not issue or renew licenses...‖ However, Plaintiff‘s claims

against Patton are based on the Foundation‘s rule requiring licensure (the catalyst for the

consequent application/renewal), not the TDA‘s failure to issue or renew his license. To date,

the Foundation has not demonstrated that its requirement for licensure is in furtherance of a

compelling governmental interest and is the least restrictive means of furthering that compelling

governmental interest as to Gene McArthur. The Foundation should not be permitted to skirt

responsibility for the substantial encumbrance which its licensure requirement placed upon

Plaintiff without establishing that it meets the burden of the compelling state interest test.

Despite creating a regulation (licensure requirement) which substantially burdens Mr. McArthur,

the Foundation has refused to make any reasonable accommodations to permit McArthur to

maintain his livelihood or follow his deeply held religious convictions. In other words, the

Foundation has denied McArthur the right to participate in its program unless he forsakes the

obligations of his religion.

          a. The Foundation failed to make readily available accommodations for Plaintiff-- The

TBWEF elected to require a license for applicators to participate in its program even though a

license was not otherwise required by state law, yet the Foundation refused to accommodate an

experienced, trained pilot‘s religious convictions, even when such accommodations were readily

available and posed no hardship to the TBWEF. Firstly, the Foundation could have



                                                                         Plaintiff’s Response to Patton’s MSJ
                                                                                                  Page 5 of 22
accommodated McArthur by simply ‗grandfathering‘ him into the program and waiving the

renewal requirement on this basis of Plaintiff‘s religious conviction. Texas Plaintiff worked for

the program since 1997. By meeting all of the other requirements for participation, including

testing, experience, and training, Plaintiff satisfied the presumed underlying rationale of the

licensure requirement –to ensure competent applicators. This accommodation would pose no

hardship to the Foundation and fulfill the likely objective of TBWEF’s requirement. Secondly,

the Foundation could have permitted Plaintiff to participate in the program by and through the

license of another applicator (Sec. 76.105). The Texas Agriculture Code states, in relevant part,

that a person may not ―use a restricted-use or state-limited-use pesticide...unless... an individual

is acting under the direct supervision of a licensed applicator.‖ In other words, the Foundation

could have accommodated Plaintiff by permitting him to participate under the direct supervision

of a colleague, as stated in the Texas Agriculture Code—―An individual is under the direct

supervision of a licensed applicator if the individual is acting under the instructions and control

of a licensed applicator who is responsible for the actions of the individual and who is available

if and when needed.‖ The Foundation refused to grandfather Plaintiff into the program, permit

him to work under the direct supervision of a colleague, or otherwise accommodate Plaintiff‘s

deeply held religious convictions. Thus, like the TDA, the TBWEF violated McArthur‘s

religious freedom. At a minimum, the authority and responsibility of the Foundation to create

requirements and make religious accommodations remains a genuine issue of material fact.

   III.    PLAINTIFF‟S EVIDENCE IN SUPPORT OF ITS RESPONSE TO CO-DEFENDANT‟S

           PARTIAL MSJ

      The evidence will raise an issue on all the elements the movant is attempting to negate and

present evidence contrary to the movant's contentions. Plaintiff, Gene McArthur, III, relies on



                                                                         Plaintiff’s Response to Patton’s MSJ
                                                                                                  Page 6 of 22
and attached the following evidence to this Response and incorporates this evidence by reference

as though fully set forth herein, along with all other documents and pleadings on file with the

Court:

           a) Affidavit of Gene McArthur, III, with attached exhibits, as follows:

                     1) PREPARING LIST NOW!

                                      IV.     LEGAL STANDARD

      Plaintiff, Gene McArthur, the non-movant in this summary judgment proceeding, is not

required to produce summary judgment evidence until after Co-Defendant (movant) can

establish there are no genuine issues of material fact disputed and the Plaintiff is otherwise

entitled to summary judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.

1989). In deciding whether there is a disputed issue of material fact that precludes summary

judgment the court takes as true all evidence favorable to Plaintiff, Gene McArthur, II. See, e.g.,

Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). It is

incumbent upon Co-Defendant, movant, to show there are no material fact issues and that it us

entitled to judgments as a matter of law. Id. Any evidence that favors Co-Defendant‘s position is

not considered unless it is uncontradicted. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223

(Tex. 1999). This Court must view the evidence in the light most favorable to Plaintiff and must

indulge every reasonable inference and resolve all doubts in favor of McArthur. Limestone

Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002).

                                 V.      ARGUMENT & AUTHORITIES

         Defendant‘s, TBWEF, Motion for Partial Summary Judgment should be in all things

denied because there are genuine issues of material fact which remain in dispute and co-

defendant has not otherwise shown itself entitled to judgment as a matter of law.



                                                                        Plaintiff’s Response to Patton’s MSJ
                                                                                                 Page 7 of 22
          Patton states five (5) grounds for its proposed dismissal of Plaintiff‘s action and

Plaintiff will address each of these claims in the order they are asserted by co-defendant:

       McArthur‘s cause of action against Co-Defendant under the Federal Religious Freedom
        Restoration Act (―FRFRA‖) is constitutional.

       McArthur‘s cause of action against Co-Defendant under the Texas Religious Freedom
        Act (―TRFA‖) is proper because the TBWEF is a ‗state agency.‘

       McArthur‘s cause of action against Co-Defendant under the Texas Constitution (Tex.
        Const. Art. 1, § 6) is proper and should be maintained.

       McArthur‘s cause of action against Co-Defendant under Chapter 106 of the Texas Civil
        Practices and Remedies Code is proper and should be maintained.

       McArthur‘s cause of action against Co-Defendant for its violation of Plaintiff‘s due
        process rights is proper and should be maintained.

The government shall not force one to violate his sincerely held religious beliefs, especially

when making a reasonable accommodation poses no hardship to the government. The action of

Co-Defendant substantially burdened Plaintiff‘s free exercise of religion in direct violation of

FRFRA, TFRA, Texas Constitution ART. 1, § 6), and Tex CIV. PRAC. & REM. CODE §

106.001(a)(1).

        The Foundation claims that this licensure requirement is based upon directives from the

Federal USDA and the State TDA while the TDA claims that it ―defers to TBWEF‖ for

determining qualifications. (exhibits; see also e-mail from Records Manager at TDA (2/4/04)).

This alone creates a fact issue prohibiting summary judgment as a matter of law.

       1. McArthur‟s cause of action under the Federal Religious Freedom Restoration Act
          (“FRFRA”) is constitutional.




                                                                       Plaintiff’s Response to Patton’s MSJ
                                                                                                Page 8 of 22
         Movant contends that 42 U.S.C. § 2000bb2 (―FRFRA‖) fails as a matter of law because

the FRFRA is unconstitutional per City of Boerne v. Flores.‖ However, the Supreme Court

unanimously upheld the FRFRA as constitutional last year in Gonzales v. O Centro Espirita

Beneficente UDV. Moreover, the FRFRA applies to the instant case to the extent federal law

forms the basis of this action. The TBWEF‘s contract contends that its requirement for pesticide

certification is based on ―FAA and State clearances‖3 (contract). Like the Foundation, The TDA,

also contends that its requirement is based on federal law, specifically, 42 U.S.C. Sec. 666.

         The TBWEF required program applicants to obtain a license and the state of Texas

required license applicants to disclose their social security numbers in order to obtain this license

required by the TBWEF. The state‘s identifier based on Federal law, 42 U.S.C. 666(a)(13). This

section requires states, as a condition to receiving federal funds, to "establish procedures

requiring that the social security number of any applicant for a professional

license...occupational license, or marriage license be recorded on the application." The TBWEF

receives financial support from the federal government in fact; in 2008 the TBWEF received

approximately $14 million in federal funding.4 The federal mandate of 42 U.S.C. §666 represents

the underlying basis for the SSN constraint that is a direct result of the TBWEF‘s license

obligation which forms the basis of this action. Accordingly, co-defendant has failed to establish,

as a matter of law, that Plaintiff‘s cause of action under the FRFRA is unconstitutional.


2
  Government shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of
general applicability (b) Exception Government may substantially burden a person‘s exercise of religion only if it
demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The free exercise
of religion is an unalienable right and its protection is secured in the First Amendment to the Constitution. The
FRFRA was intended to guarantee its application in all cases where free exercise of religion is substantially
burdened and to provide a claim or defense to persons whose religious exercise is substantially burdened by
government.
3
  Applicators ―will obtain FAA and State clearances, including certification as an applicator of restricted use
pesticides (certified pesticide applicator) for all pilots...‖
4
  Sunset Report to Legislature

                                                                                      Plaintiff’s Response to Patton’s MSJ
                                                                                                               Page 9 of 22
        Last year, more than 10 years after Boerne, the US Supreme Court revisited the FRFRA.

O Centro,5 involved a small religious community from Brazil and their ritualized, but illegal, use

of a hallucinogenic tea called ‗‗hoasca.‘‘6 In this case, the Court held that the FRFRA outlaws

the imposition by officials of substantial burdens on religious exercise—even through generally

applicable laws—unless it is the ‗‗least restrictive means‖ of furthering a ‗‗compelling

governmental interest.‘‘ The Supreme Court agreed with the lower courts that the RFRA

required the government to demonstrate, in a particularized, more-than-conclusory way, that its

refusal to exempt Plaintiff from the scope of the neutral law was justified by a compelling state

interest. Instead the government only proffered non-particularized contentions that as a schedule

I controlled substance the government has a compelling interest.7 After considering the

government‘s arguments, the lower court concluded that the government had ―failed to carry its

heavy burden‖ of proving that its refusal to accommodate plaintiff‘s religiously motivated beliefs

and use cleared the high standard set by the RFRA.8 The Tenth Circuit affirmed this holding and

upon review the US Supreme Court did the same. The Supreme Court unanimously held that the

government is bound by the RFRA enacted by Congress—rejecting that the character of

schedule I substances and the government‘s strong interest in uniform application of the

Controlled Substances Act precluded individualized religious exemptions and that the


5
 O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236 (D.N.M. 2002); O Centro
Espirita Beneficente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003); O Centro Espirita Beneficente
Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (en banc); Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 126 S. Ct. 1211 (2006). ―The Government’s argument echoes the classic rejoinder of
bureaucrats throughout history: If I make an exception for you, I’ll have to make one for every-body, so no
exceptions.‖ But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to
―rule[s] of general applicability.‖
6
  O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236 (D.N.M. 2002); O Centro
Espirita Beneficente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003); O Centro Espirita Beneficente
Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (en banc); Gozales v. O Centro Espirita Beneficente
Uniao do Vegetal, 126 S. Ct. 1211 (2006).
7
  Id. at 1252-53 (D.N.M. 2002).
8
  Id.

                                                                                 Plaintiff’s Response to Patton’s MSJ
                                                                                                        Page 10 of 22
obligations under the 1971 Convention on Psychotropic Substances supply the particularized

compelling interests required by the RFRA.9 Likewise, this holding should also apply to state

governments seeking to comply with federal obligations posed by allegedly posed by the FAA,

USDA, 42 USC § 666, and/or other federal laws. Here, the TBWEF has not demonstrated that

its licensure requirement as applied to the person, Gene McArthur, is in furtherance of a

compelling governmental interest or the least restrictive means of furthering that interest.10

       2. McArthur‟s Cause of action under the Texas Religious Freedom Act (“TRFA”) is
          proper because the TBWEF is a government agency subject to this act.

       The Texas Legislature enacted the Tex. CIV. REM. CODE, Ch 110 (―Texas Religious

Freedom Act‖ or ―TRFA‖) in response to the Court‘s ruling in Boerne.11 The TRFA states that a

―government agency may not substantially burden a person's free exercise of religion unless the

agency demonstrates that the application of the burden to person is (1) in furtherance of a

compelling governmental interest & (2) the least restrictive means of furthering that interest.”

This plain language demonstrates the state‘s intent to provide broad protection for the free

exercise of religion.

     a. TBWEF cannot negate an essential element of this action because it has failed to establish
         that it is not a government agency.

       The TBWEF is a government Defendant, Lindy Patton, in his Official Capacity as

Executive Director (or in his new designation as CEO and President) of the TBWEF, contends

that the cause of action under the TRFA is not maintainable because the movant's proof

conclusively negates the element of ―government agency.‖ On the contrary, as this response will


9
  Id. At 1224.
10
   Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of
general applicability, except ... if it demonstrates that application of the burden to the person--(1) is in furtherance of
a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental
interest.. 42 U.S.C. § 2000bb-1(a)-(b).
11
   The Texas RFRA was enacted ―to provide the rights and protections that the federal [RFRA]‖ to the state. Barr v.
City of Sinton, No. 13-03-727-CV, 2005 Tex. App. LEXIS 9847, at *16 n.9 (Ct. App. Nov. 23, 2005

                                                                                        Plaintiff’s Response to Patton’s MSJ
                                                                                                               Page 11 of 22
demonstrate, the evidence presents a genuine issue of material fact regarding the TBWEF‘s

status as a governmental or at the very least a quasi-governmental agency bound by TRFA. To

demonstrate that there is evidence raising an issue of fact on the element of government agency,

Plaintiff, Gene McArthur, III, refers the Court to the express language of the TRFA, the

TBWEF‘s admissions, and          the Texas Agriculture Code. Under the terms of the TRFA a

government agency means ―this state or a municipality or other political subdivision of this state;

and any agency of this state or a municipality or other political subdivision of this state,

including a department, bureau, board, commission, office, agency, council, or public institution

of higher education.‖

         Texas law and the pleadings in this cause offer evidence which, at minimum, present

genuine issues of material fact regarding the Foundation‘s governmental status. Co-Defendant

admits that the Foundation has characteristics of a government agency (see MSJ 4.06). For

instance, the TBWEF was created by the Texas state Legislature and given authority through the

Texas Department of Agriculture (TDA) (see MSJ 4.06). In addition to gaining its authority

through the TDA, the Texas Agriculture Code states that the TBWEF is under the under the

supervision and oversight of the Texas Department of Agriculture.12 These express terms of the

Texas Agriculture Code, which created the TBWEF, support that it satisfies the definition of a

government agency provided in the TRFA. Similarly, in its correspondence to Plaintiff the TDA

states that the licensure requirement of the TBWEF is ―within the TBWEF‘s statutory authority.‖

Needless to say, government, not private, entities are given ―statutory authority.‖ This admission

by the supervisory department of the TBWEF also supports that it is a government agency as

defined by the TRFA.



12
     Tex. Agric. Code § 74.101

                                                                       Plaintiff’s Response to Patton’s MSJ
                                                                                              Page 12 of 22
        Moreover, the Foundation is partially funded with tax payer dollars that “pass [ ] through

the TDA,‖ an undisputed government agency.13 The ―state and federal cost-share funds‖ which

provide funding and financial support to the TWBEF support its status as a government agency

under the TRFA. In fact, in calendar year 2008, the Foundation received about $13 million

dollars in funding from the State of Texas.14 Similarly, as of 2008, the Foundation was indebted

to the Farm Service Agency, a part of the US Department of Agriculture in the amount of $99

million in loans. Additionally, the official website of the TBWEF maintains a page devoted to

open records requests through the Public Information Act and publicly characterizes itself as a

―governmental body.‖ As such, the Foundation has held itself out as a governmental body

subject to the PIA.

        Defendant asserts that the Foundation shares some characteristics with private entities,

including its designation as a non-profit, and therefore is not subject to the TRFA. However, this

alleged mix of characteristics establishes that the TBWEF, in the alternative, should be classified

a quasi-governmental agency—as it states on its own website. Likewise, the Texas Agriculture

Code describes that TBWEF as ―a quasi-governmental entity acting under the supervision and

control of the commissioner...‖15 At minimum, there remains a genuine issue of fact regarding

the whether this government created, government sponsored, government funded, and

government regulated Foundation is subject to the Texas Religious Freedom Act. Co-

Defendant‘s claim centers on only one factor, its non-profit status, without any discussion of the

overwhelming factors which demonstrate its governmental status.

        The Supreme Court considered the governmental status of another allegedly private

entity in Lebron. Applying the rationale of the Supreme Court in Lebron, the Foundation should

13
   8/20/08 – Administrator Statement
14
   Sunset Report to state legislature
15
   § 74.101 (emphasis added)

                                                                       Plaintiff’s Response to Patton’s MSJ
                                                                                              Page 13 of 22
be considered a government agency.16 The TBWEF is a "Government entity" under Lebron. The

Lebron case concerned Amtrak, which was created explicitly as a "for profit corporation,‖

incorporated as a private business under the D.C. Business Corporation Act, and statutorily

declared ―not [to] be an agency or establishment of the United States Government.‖ 513 U.S. at

391 (quoting 84 Stat. 1330). Nonetheless, the Supreme Court - with only one Justice dissenting -

held that Amtrak is "an agency or instrumentality of the United States for the purpose of

individual rights guaranteed against the Government by the Constitution." 513 U.S. at 394. The

Court rested its conclusion on an analysis of the (1) reasons for Amtrak's creation, (2) objectives

it was designed to further, and (3) appointment of its directors. 513 U.S. at 394-400. Applying

the factors outlined above and the reasoning of the Supreme Court to the facts before this court,

the Foundation should be held to be an agency government for purposes of individual rights,

such as religious freedom.

         (1) Creation & Authority of TBWEF – Per its 2007 Self-Evaluation Report—―The

Foundation is a single purpose, quasi-governmental entity created by the Texas Legislature in

Chapter 74 D of the Texas Agriculture Code that exists to eradicate the cotton boll weevil in the

State...‖(See 2007 Sunset Report pg 1). The Texas Legislature has devoted an entire chapter of

the Title 4 of the Texas Administrative Code to the Texas Boll Weevil Eradication program.

Section 3.70 of this Chapter endows the Foundation with the authority to collect assessments,

require participation, place liens on cotton productions, assess administrative penalties for failure


16
  There is no "unitary test" for determining whether an institution that calls itself private is a "state actor" for
constitutional purposes; rather, the "facts of each case determine the test." Imperiale v. Hahnemann University, 776
F. Supp. 189, 195 (E.D. Pa. 1991). "The Supreme Court demands that that each case stand solely on its facts . . . .
The cases on state action suggest principles not rules." Guillory v. Administrators of Tulane Univ., 212 F. Supp.
674, 683 (E.D. La. 1962). There will rarely be a "bright line" separating conduct governed by the Bill of Rights from
conduct that is not. As the Supreme Court observed in Moose Lodge v. Irvis, 407 U.S. 163, 172 (1972), "[T]he
question of whether particular discriminatory conduct is private, on the one hand, or amounts to 'State action,' on the
other hand, frequently admits of no easy answer."


                                                                                     Plaintiff’s Response to Patton’s MSJ
                                                                                                            Page 14 of 22
to pay assessments, assess penalties for failure to comply with ‗department rules,‘ and create

―exemptions from penalties assessed under the Code, § 74.115.‖ Accordingly, the Texas

Legislature expressly bestowed the Foundation with distinctly governmental authorities and

powers. Additionally, the fact that the TBWEF is ―the only agency authorized to carry out boll

weevil and pink bollworm eradication in Texas‖ evidences its non-private nature (Sunset 2007

pg 4). The creation and authority of the Foundation support that it is an agency of the state

government.

       (2) Objectives of TBWEF – In 1993, the Legislature created the Foundation in furtherance

of a governmental goal—the eradication of boll weevils from Texas cotton. The state created the

TWBEF to provide a public service – ―to plan, carry out, and operate eradication ... programs to

eliminate the boll weevil and the pink bollworm from cotton in the state...‖ (quoting D‘s Partial

MSJ 3.02). As the TBWEF stated in its ‗Self Evaluation Report,‘ it‘s ―essential the Foundation

complete the job of eradicating the boll weevil from Texas cotton and that adequate control and

monitoring measures be in place to protect that investment‖ (2007 sunset pg 2). The public

governmental function served by the Foundation has been perpetuated by the great degree of

financial and other assistance that the state of Texas, as well as the federal government, provide

to the Foundation. As of 2007, ―the State of Texas has invested $193 million in costs share funds

and the Federal government has invested $212 million in cost share funds and $617 million in

loan funds‖ (2007 Sunset pg 2). ―[A] cessation of the program activities would put the

investment of the...state of Texas and United States at risk‖ (2007 sunset pg 2). The Foundation

is heavily subsidized by government funds to achieve its public purpose, this supports that it is

an agency or instrumentality of the government.




                                                                       Plaintiff’s Response to Patton’s MSJ
                                                                                              Page 15 of 22
        (3) TBWEF's government appointed directors – Five members of the Foundation‘s board

are appointed directly by the Commissioner of Agriculture while the remaining board members

are selected by cotton growers from their respective zones.17 Interestingly, in Lebron, the Court

cited the fact that a government agent appointed five members of the Amtrak board to support its

holding that Amtrak was a governmental entity. Additionally, the ―board of directors of the

official cotton growers' boll weevil eradication Foundation is subject to Chapter 325,

Government Code (Texas Sunset Act).‖ The appointment of five members of the Foundation‘s

Board by the Commissioner supports that the Foundation is an instrumentality of the

government.

        In summary, the three factors relied on in Lebron are indisputably present in this case—

supporting that the TBWEF is a creature of the State of Texas, formed to advance public

objectives, with several government appointed board members. The Court made it clear in

Lebron that it was not imposing a rigid test and that a corporation need not look exactly like

Amtrak to be a government actor for individual-rights purposes. 513 U.S. at 386-391. Instead,

the Court "place[d] Amtrak within its proper context." 513 U.S. at 386. Throughout the

Twentieth Century, the Court noted, the government has often resorted to the corporate form,

sometimes purporting to create "private" entities that were controlled by government officials,

other times not. 513 U.S. at 390-391. Thus, the TBWEF, like Amtrak, may not violate an

individual‘s rights. Based upon the foregoing, the TBWEF is a proper party for Plaintiff‘s cause

of action under the Texas Religious Freedom Act.




17
   Comsat, for example, was controlled by private shareholders, and only 3 of 15 directors were appointed by the
President. Ibid. Amtrak, the Lebron Court noted, was simply "another variation upon the Comsat theme." 513 U.S.
at 391.


                                                                                 Plaintiff’s Response to Patton’s MSJ
                                                                                                        Page 16 of 22
         It would be a miscarriage of justice to permit the TBWEF to characterize itself as a

governmental agency to the public, and then, strategically, when it‘s self-serving to do so, assert

its status as a private, non-profit corporation. The TBWEF should not be able to maintain

benefits of a state agency (receiving millions in federal and state taxpayer funding, access to low

interest loans through the Farm Service Agency of the USDA, creating rules regarding licensure

requirements, assessing administrative penalties, etc) while carrying none of the burdens of non-

discrimination and due process. The court should not permit ‗quasi-governmental‘ status of this

legislatively created entity to be a shield protecting it from accountability and review. 18

     b. TBWEF is a proper party to this action because its participation requirement substantially
        burdened Plaintiff‘s free exercise.

         The second thrust of Co-Defendant‘s motion for summary judgment regarding this cause

of action is based on the assertion that Patton is ―not the head of a state agency which issues or

renews state licenses and permits.‖ However, Plaintiff does not allege that the Foundation issues

or renews licenses. Rather, the TBWEF is party to this suit because it required a license to

participate in its governmental program as an applicator of a pesticide which did not require

license--―under TDA laws a commercial applicator license is not required to apply currently

available Malathion products, a general-use pesticide and the product the Foundation primarily

uses...‖ During his unblemished tenure with the TBWEF, Plaintiff applied a general use

pesticide for which no other rule or statute requires a license. The licensure requirement was put

in place by and through the TBWEF as a prerequisite for participation in its program. ―Failure to

observe program protocols may result in a contract being [given] to another applicator. All


18
  Where a private party acts under color of state law, however, it can be held liable under § 1983. See, e.g., Dennis
v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (holding private party acts under color of state
law if it is "willful participant in joint action with State or its agents"); Adickes v. S.H. Kress & Co., 398 U.S. 144,
150-52, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (holding proof of conspiracy between restaurant and police
established restaurant acted under color of law).

                                                                                       Plaintiff’s Response to Patton’s MSJ
                                                                                                              Page 17 of 22
applications are monitored to ensure adherence to program protocols.‖ The Foundation refused

to adapt this ―program protocol‖ to accommodate Plaintiff

       As outlined above, the element of ―government agency.‖ or in the alternative, there

remains an issue of fact regarding this element. Plaintiff requests that the court deny Co-

Defendant‘s Motion for Summary Partial Judgment as to this cause of action.

      3. McArthur‟s cause of action against Co-Defendant under the Texas Constitution
         (Tex. Const. Art. 1, § 6) is proper.

Texas Constitution (TEX. CONST. ART. 1, § 6): Freedom of Worship - All men have a natural and
indefeasible right to worship Almighty God according to the dictates of their own consciences.
No man shall be compelled to attend, erect or support any place of worship, or to maintain any
ministry against his consent. No human authority ought, in any case whatever, to control or
interfere with the rights of conscience in matters of religion, and no preference shall ever be
given by law to any religious society or mode of worship. But it shall be the duty of the
Legislature to pass such laws as may be necessary to protect equally every religious
denomination in the peaceable enjoyment of its own mode of public worship.
      Again, movant contends that the cause of action under the Texas Constitution is not

maintainable because the movant is ―not the head of any agency that issues or renews state

licenses;‖ however, this is not an element to a cause of action under Art 1 Section 6 as detailed

above. Moreover, McArthur has not alleged that the Foundation issues licenses, rather, that the

Foundation requires a license and refused to accommodate Plaintiff regarding this requirement.

Co-Defendant‘s establishment of this requirement is the catalyst for this action and has interfered

with Plaintiff‘s rights of conscience in matters of religion.

      Movant also contends that Plaintiff‘s constitutional case of action cannot survive summary

judgment because ―requiring a social security number as a unique identifier from license

applicants is a rational regulation...‖ Firstly, this is a fact issue and is inappropriate for summary

judgment. Secondly, and more importantly, the Foundation is required to prove that its decision

was the least restrictive means of achieving a compelling state interest; thus, the Foundation

asserts the wrong standard. In support of the application of the rational basis test movant relies


                                                                         Plaintiff’s Response to Patton’s MSJ
                                                                                                Page 18 of 22
on Smith a case which did not involve the interpretation of the Texas Constitution has been

distinguished, if not overturned, by the more recent Supreme Court case of O Centro where the

court unanimously applied the compelling state interest test to a neutral law of general

applicability. Additionally, even in its own correspondence to Plaintiff, the TBWEF never

alleges that its requirement for a pesticide certification rises to a compelling state interest—

rather it contends that its necessary to ―defend its practices and meet the high standards required

of it‖ (3/23/05 TBWEF letter). As outlined in this Response, the State of Texas has so

significantly involved itself in the affairs of the Texas Boll Weevil Eradication Foundation that

its activities satisfy the requirements of 'state action' and action 'under color of' state law. As

such, the Foundation has failed to negate an element of Plaintiff‘s cause of action under the

Texas Constitution.

        4. McArthur‟s cause of action against Co-Defendant under the Chapter 106 of the
           Texas Civil Practices and Remedies Code is proper.

        Plaintiff‘s cause of action under Chapter 106 of the Texas Civil Practices and Remedies

Code should not be dismissed as Co-Defendant refused to permit Plaintiff to participate in a

program operated and managed by or on behalf of the state and refused to grant a benefit to

Plaintiff because of his religion (see 106.001 et seq.).19 The TBWEF, refused to permit Gene

McArthur to participate in the Boll Weevil Eradication program operated and managed by or on

behalf of the TBWEF, TDA, and/or the Texas state legislature because of McArthur‘s sincerely

held religious beliefs. The TBWEF made a decision to require certification/licensure for

applicators to participate in its governmental program even though a license was not otherwise

required. Mr. McArthur remains unable to obtain this prerequisite to program participation


   19
     Plaintiff has amended its pleadings to include Tex. Civ. Prac. and Rem. Code § 106.001 et seq. in addition to
   Tex. Civ. Prac. and Rem. Code § 106.001(a)(1).


                                                                                  Plaintiff’s Response to Patton’s MSJ
                                                                                                         Page 19 of 22
because of his religious beliefs. The TBWEF‘s rule requiring a license denied Mr. McArthur a

benefit on the basis of his religion. Yet, the Foundation refused to make any reasonable

accommodation. At minimum, there remains a genuine issue of material fact as to whether Co-

Defendant denied McArthur a benefit or denied McArthur participation in a government program

because of his religion.

     5. McArthur‟s cause of action against Co-Defendant for its violation of Plaintiff‟s
        due process rights should be maintained.

      Again, movant contends that its is a private entity and does not issue or renew state

licenses and as a result Plaintiff‘s due process claim fails as a matter of law. However, as

discussed above, Co-Defendant is a government agency (or in the alternative, at least quasi-

government agency) who created a participation requirement in its government created,

government funded, and government supervised program. As the functional equivalent of a

subsidiary of the Texas Department of Agriculture, the Foundation, acts by and through the

TDA. Moreover, the Foundation has statutory authority to assess administrative penalties and

contested cases are conducted in accordance with Rules of Procedure of the State Office of

Administrative Hearings when administrative penalties and the collection of program funds are

at issue, but here, the Foundation afforded no due process rights to Plaintiff when his

fundamental property and religious rights were at issue. Like all persons “who believes they have

been aggrieved in connection with an action of the Texas Boll Weevil Eradication Foundation

(the foundation)” Plaintiff’s claim should be entitled to “administrative review,” including

informal review and appeals to the Commissioner (see Rule 3.205). Still, the TBWEF permitted

no process by which Plaintiff could seek due process review of TBWEF‘s unwillingness to

accommodate Plaintiff‘s sincerely held religious beliefs.     Therefore, Plaintiff‘s due process

claim should be maintained as a matter of law.


                                                                     Plaintiff’s Response to Patton’s MSJ
                                                                                            Page 20 of 22
      The TBWEF should not be able to maintain due process benefits of a state agency, such as

holding administrative hearings to review its assessments of administrative penalties and

maintain no due process obligation regarding its regulations, individual rights, and reasonable

accommodation thereto. The ‗quasi-governmentally‘ status of this legislatively created entity

should not shield it from accountability and review of discriminatory practices and lack of due

process.

                                           VI.      CONCLUSION

     Co-Defendant, TBWEF, has not presented competent summary judgment evidence to

establish as a matter of law, that it is entitled to summary judgment. The Foundation has failed to

negate Plaintiff‘s causes of action under the FRFRA, TRFA, Texas Constitution, Texas Civil

Practices and Remedies Code, and due process.

                                             VII.    PRAYER

      Based on the foregoing, the pleadings of Petitioner state cognizable causes of action and

Plaintiff, Gene McArthur requests that this Court deny Co-Defendant’s motion for partial

summary judgment and maintain all claims against the TBWEF in every respect; in the

alternative, Co-Defendant asks the Court to continue hearing on Co-Defendant’s Motion to grant

additional time to conduct discovery and collect additional affidavits. If the Court grants Co-

Defendant’s Motion for Partial Summary Judgment, Plaintiff asks the Court to overrule

Plaintiff’s objections so they will be preserved for appeal. Plaintiff requests that the court deny

Co-Defendant‘s Motion for Summary Partial Judgment as to this cause of action and grant

Plaintiff declaratory relief under Chapter 37; injunctive relief to prevent the threatened violation

or continued violation; compensatory damages; reasonable attorney's fees, court costs, and other

relief this court deems just and proper.



                                                                       Plaintiff’s Response to Patton’s MSJ
                                                                                              Page 21 of 22
Dated: March 24, 2009   Respectfully submitted,


                              Attorneys for Plaintiff




                                        Plaintiff’s Response to Patton’s MSJ
                                                               Page 22 of 22

								
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