LULAC Texas v. Hughes, No. 22-50435 (5th Cir. 2023)Annotate this Case
After the Texas Legislature amended the Election Code in 2021, the United States and others sued, alleging the changes were racially discriminatory. When Plaintiffs sought discovery from individual, nonparty state legislators, those legislators withheld some documents, citing legislative privilege. The district court largely rejected the legislators’ privilege claims, and they filed this interlocutory appeal.
The Fifth Circuit reversed. The court explained that for their part, the legislators rely on the privilege for each of the disputed documents. Plaintiffs, too, do not argue that the documents are non-legislative. Instead, they argue only that the privilege either “was waived” or “must yield.” The court wrote that the legislators did not waive the legislative privilege when they “communicated with parties outside the legislature, such as party leaders and lobbyists.” The district court’s contrary holding flouts the rule that the privilege covers “legislators’ actions in the proposal, formulation, and passage of legislation.” Finally, the court reasoned that Plaintiffs’ reliance on Jefferson Community Health Care Centers, Inc. v. Jefferson Parish Government is misplaced. That decision stated that “while the common-law legislative immunity for state legislators is absolute, the legislative privilege for state lawmakers is, at best, one which is qualified.” But that case provides no support for the idea that state legislators can be compelled to produce documents concerning the legislative process and a legislator’s subjective thoughts and motives.