TARRANT COUNTY CLERK’S RESPONSE TO JOINT DISCOVERY PLAN CIVIL NO. 1:13-CV-631-SS (McNOSKY) PAGE 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CHRISTOPHER DANIEL MCNOSKY § AND SVEN STRICKER, §

Plaintiffs, § §

VS. § CIVIL ACTION NO. 1:13-CV-631-SS §

TEXAS GOVERNOR § RICK PERRY, ET AL., § Defendants. § DEFENDANT MARY LOUISE GARCIA’S RESPONSE TO JOINT DISCOVERY PLAN TO THE HONORABLE SAM SPARKS, UNITED STATES DISTRICT JUDGE:

Defendant Mary Louise Garcia, County Clerk for Tarrant County, Texas, submits this

Response to the Joint Discovery Plan (Doc. #31) filed on December 9, 2013 and would state the

following:

Defendant Garcia concurs with the scheduling deadlines proposed by the Texas Attorney

General in this case and otherwise agrees with the stipulations of the other parties, except that

Defendant Garcia contends that rather than advancing and/or consolidating1

1 See Motion to Consolidate (Doc. #17) of the Attorney General in this case (#1:13-CV-631-SS). Plaintiffs in #5:13-CV-982-OLG, DeLeon, et al. v. Perry, et al. seek to intervene (Doc. #21, Motion to Intervene) in this case to oppose consolidation.

this case with

USDC#5:13-CV-982-OLG, DeLeon, et al. v. Perry, et al., filed against the Attorney General and

Bexar County Clerk, and USDC#1:13-CV-955-SS, Zahrn, et al. v. Perry, et al., filed against the

Attorney General and Travis County Clerk, the Court should stay this case and expedite final

hearing on the injunctive relief and trial on declaratory judgment action in USDC#1:13-CV-955-

SS, Zahrn, et al. v. Perry, et al. for the following reasons:

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TARRANT COUNTY CLERK’S RESPONSE TO JOINT DISCOVERY PLAN CIVIL NO. 1:13-CV-631-SS (McNOSKY) PAGE 2

(1) Plaintiffs in USDC#1:13-CV-955-SS, Zahrn, et al. v. Perry, et al. are represented by counsel who can properly and effectively present the matters necessary to resolution of the constitutionality of Family Code Secs. 2.001 and 6.204 and Texas Constitution Art. I, Sec. 32 by way of declaratory judgment. The Complaint (¶ 105) in Zahrn states: “The Named Plaintiffs … are represented by counsel experienced in complex class action litigation – and in litigation involving constitutional clams and same-sex marriage rights in Texas.”)

(2) Declaratory judgment in USDC#1:13-CV-955-SS, Zahrn, et al. v. Perry, et al., in which the parties and attorneys for the parties are located in Travis County would:

(1) effectively dispose of all three (3) pending cases; (2) expeditiously decide the constitutionality of Family Code Secs. 2.001 and 6.204 and Texas Constitution Art. I, Sec. 32 at the district court level; and (3) minimize the expenditure of resources of the Courts and litigants.

Plaintiffs in USDC#1:13CV955-SS, Zahrn, et al. v. Perry, et al. seek only declaratory and injunctive relief (Complaint, ¶¶ 10, 66, 97) and have requested plaintiff class certification (Complaint, ¶¶ 98 - 107) under Rule 23(b), FED.R.CIV.P. See also Texas Medical Providers Performing Abortion Services v. Lakey, 806 F.Supp.2d 942, 952-955 (W.D. Tex. 2011) (certifying Travis County official as the representative of the defendant class).2

Respectfully submitted, s/ Russell A. Friemel RUSSELL A. FRIEMEL Assistant District Attorney State Bar No. 07473500 Tarrant County Criminal District Attorney’s Office Civil Division 401 West Belknap Street, 9th Floor Fort Worth, Texas 76196-0401 Tel. No.: 817/884-1233; FAX: (817) 884-1675 ATTORNEY FOR DEFENDANT TARRANT COUNTY CLERK MARY LOUISE GARCIA

2 Defendant Garcia has filed a Rule 12(b)(6) motion to dismiss (Doc. #32) contending that injunctive relief as to her is unnecessary and unwarranted for the reason that, as a county clerk, her compliance with Sec. 2.001 does not constitute enforcement or government action required by 42 U. S. Code Sec. 1983 and failure to comply with Sec. 2.001 subjects her to potential criminal prosecution under Sec.2.012. The Texas Attorney General is seeking to enforce Family Code Sec. 6.204 (prohibiting political subdivisions from giving effect to any right or claim asserted as a result of same-sex marriage) by attempting to intervene and appeal issuance of a divorce decree by a Texas court in a same-sex marriage case. See State of Texas v. Naylor, 330 S.W.3d 434 (Tex. App. - Austin, pet. filed 2011); Texas Supreme Court #11-0114, State of Texas, Petitioner v. Naylor and Daly, Respondents; oral argument: 11/05/2013 http://www.search.txcourts.gov/Case.aspx?cn=11-0114 ; accessed 12/17/2013.

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TARRANT COUNTY CLERK’S RESPONSE TO JOINT DISCOVERY PLAN CIVIL NO. 1:13-CV-631-SS (McNOSKY) PAGE 3

CERTIFICATE OF SERVICE

I hereby certify that on December 17, 2013, I electronically filed the foregoing document with the Clerk of the Court for the U. S. District Court, Western District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to the following attorneys of record who have consented in writing to accept this Notice as service of this document by electric means:

Mr. Christopher Daniel McNosky 5108 Pleasant Run Colleyville, Texas 76034 Email: cmcnosky@gmail.com PLAINTIFF PRO SE Mr. Sven Stricker 3047 Bent Tree Court Bedford, Texas 76021 Email: ststravis@gmail.com PLAINTIFF PRO SE Mr. William T. Deane Office of the Attorney General General Litigation Division-019 P.O. Box 12548 Austin, Texas 78711-2548 Email: Bill.Deane@texasattorneygeneral.gov ATTORNEY FOR DEFENDANTS HONORABLE RICK PERRY & GENERAL GREG ABBOTT s/ Russell A. Friemel_____

RUSSELL A. FRIEMEL

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