Is it a crime for a county clerk to refuse a marriage license to same sex couples?

Now that gays are guaranteed the right to marry and protected by the US Constitution, would it be illegal for a county clerk to refuse to offer a gay couple a marriage license? Has Ken Paxton (our admitted felon AG) opened up county clerks across the State to criminal liability with his letter advising them they can not provide marriage licenses to same-sex couples?

Let’s look at the Official Oppression statute for a minute. It’s TPC 39.03 (so no rule of lenity here). I’m going to add some emphasis.

Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor, except that an offense is a felony of the third degree if the public servant acted with the intent to impair the accuracy of data reported to the Texas Education Agency through the Public Education Information Management System (PEIMS) described by Section 42.006, Education Code, under a law requiring that reporting.

Well, that seems pretty clear. But, mark my words, NO ONE WILL BE PROSECUTED for these violations. Why? DA’s are elected in Texas, and if a county clerk is an ultra-conservative who wants to deny gays their Constitutional rights, they are elected in the same primary as the DA who would have to prosecute them. No elected DA is going to risk their next election going to bat for gay marriage, or prosecuting a county clerk. Which as a defense lawyer I’m torn, because I’m usually for less prosecutions, but I’m for the Constitutional rights of minorities. There is inverse relationship between political capital and criminal prosecutions, so this issue is going to be theoretical at best. Kenny P should ask his criminal defense lawyer to advise him before he sends out his next letter though, before he gets someone arrested.


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