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Texas Governor Dodges Challenge to State Contact Tracing System

July 26, 2021, 10:27 PM

Texas Gov. Greg Abbott won his bid to toss a lawsuit over the state’s contact tracing system because the challengers failed to allege he had the power to enforce it, according to a federal district court opinion.

The plaintiffs, which consisted of 1,300 Texas residents and businesses, lacked standing to sue because Abbott (R) was neither a party to the contract that set up the program, nor responsible for its enforcement, Judge Vanessa D. Gilmore of the U.S. District Court for the Southern District of Texas ruled July 23.

The lawsuit alleged that the state contracted with MTX Group Inc. during the pandemic to initiate the contact tracing program. They claimed that MTX data-mines the collected information and that the contact tracers acquire contacts of Texans infected with Covid-19. The plaintiffs alleged the program violates their First Amendment rights and amounts to an “unlawful seizure of information” in violation of the Fourth Amendment.

The court rejected the claims because the contact tracing agreement is between MTX and the Texas Department of State Health Services.

“A plaintiff may not sue a state official who is without any power to enforce the complained-of-statute or policy,” the court said. “Since Defendant was not a party to the contract nor involved in the questioning of Texans infected with Covid-19, and Plaintiffs do not allege otherwise, Defendant is without power to enforce the contact tracing program.”

The court also tossed claims challenging several of Abbott’s executive orders that restricted businesses’ capacities because it found that the governor doesn’t have the power to enforce those executive orders.

Woodfill Law Firm PC, counsel for the plaintiffs, didn’t immediately respond to a request for comment.

The case is Hotze v. Abbott, S.D. Tex., No. 4:20-cv-02918, 7/23/21.

To contact the reporter on this story: Lesley Torres in California at ltorres@bloombergindustry.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Alexis Kramer at akramer@bloomberglaw.com

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