United States District Court, W.D. Texas, El Paso Division
ORDER DENYING MOTION TO DISMISS
R. MARTINEZ, UNITED STATES DISTRICT JUDGE
day, the Court considered Defendants Ysleta del Sur Pueblo,
the Tribal Council, and the Tribal Governor Carlos Hisa's
[hereinafter collectively referred to as
"Defendants"] "Motion to Dismiss First Amended
Complaint" (ECF No. 13) [hereinafter
"Motion"], filed on August 29, 2017, the State of
Texas's [hereinafter "Plaintiff] "Response to
Defendants' Motion to Dismiss First Amended
Complaint" (ECF No. 15) [hereinafter
"Response"], filed on September 11, 2017, and
Defendants' "Reply in Support of Motion to Dismiss
First Amended Complaint" (ECF No. 19) [hereinafter
"Reply"], filed on September 25, 2017, in the
above-captioned cause. After due consideration, the Court
will deny Defendants' Motion for the reasons that follow.
case is the latest iteration of a long-running dispute
between Plaintiff and Defendants regarding enforcement of
Texas gaming law on the Ysleta del Sur Pueblo [hereinafter
"Pueblo" or "the Tribe"] reservation.
While it is unnecessary to delve into a comprehensive history
of the litigation and factual background, the Court will
recite the facts relevant to determining this Motion.
1987, the United States enacted the Restoration Act
("the Act"), which "restored trust
responsibility for the Pueblo to the federal government"
from the State of Texas. Mot. 4. The Act delineates the
nature of the federal trust relationship and contains
provisions regarding, inter alia, federal recognition of the
Tribe, the rights and privileges of the Tribe (including
eligibility for federal services and assistance), the
relationship between federal, state, and tribal authority,
and permanent physical improvements to the reservation.
See generally Ysleta del Sur Pueblo and Alabama and
Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No.
100-89, 101 Stat 666 (1987). Most importantly for purposes of
this case, the Act governs "Gaming Activities"
conducted on the reservation [hereinafter "Pueblo
gaming"]. Id. at § 107.
107 of the Act contains two provisions relevant to deciding
the Motion. Section 107(a), in pertinent part, provides that:
All gaming activities which are prohibited by the laws of the
State of Texas are hereby prohibited on the reservation and
on lands of the tribe. Any violation of the prohibition
provided in this subsection shall be subject to the same
civil and criminal penalties that are provided by the laws of
the State of Texas.
Section 107(c) provides that "the courts of the United
States shall have exclusive jurisdiction over any offense in
violation of subsection (a) [i.e., the section prohibiting
all gaming activities prohibited by the State of Texas]"
effect of subsections (a) and (c) of the Act is to federalize
Texas gaming law, which currently operates "as surrogate
federal law on the Tribe's reservation in Texas."
Ysleta del Sur Pueblo v. State of Tex., 36 F.3d
1325, 1334 (5th Cir. 1994). Essentially, any activity
prohibited pursuant to Texas law is prohibited pursuant to
federal law. While Texas has many laws prohibiting gambling,
the State does not consider all gaming activity to constitute
unlawful gambling. Thus, "[n]ot all gaming activities
are prohibited to the Tribe, only those gaming activities
that are prohibited by Texas law to private citizens and
other organizations. As such, the Tribe may participate in
legal gaming activities." Texas v. del Sur
Pueblo, 220 F.Supp.2d 668, 707 (W.D. Tex. 2001),
modified (May 17, 2002), aff'd, 31
Fed.Appx. 835 (5th Cir. 2002), and aff'd sub nom.
State of Texas v. Pueblo, 69 Fed.Appx. 659 (5th Cir.
2003), and order clarified sub nom. Texas v. Ysleta del
Sur Pueblo, No. EP-99-CA-320-H, 2009 WL
10679419 (W.D. Tex. Aug. 4, 2009) [hereinafter "Judge
Eisele Order"]. The current dispute involves whether
Defendants' operation of "electronic bingo"
machines violates Texas gaming law and, thus, whether it
violates federal law pursuant to the Act. Original Compl. for
Decl. and Inj. Relief 1, June 7, 2017, ECF No. 1.
Defendants make multiple arguments throughout their many
filings in this case in favor of ultimately dismissing the
cause, their Motion specifically concerns the Texas attorney
general's ["AG"] capacity to sue Defendants in
federal court for injunctive relief from their gaming
activities. This issue has been thoroughly litigated in
previous lawsuits involving the same parties. See
Judge Eisele Order 691-95 (accepting and adopting two
previous orders issued by Judge Hudspeth discussing the
AG's capacity to sue to enforce the Restoration Act). In
summary, both Judge Eisele and Judge Hudspeth concluded that
the Texas AG lacks capacity to bring suit on behalf of the
State unless an affirmative grant of statutory authority
empowers him or her to bring that specific type of suit.
See Judge Eisele Order 693 (citing Texas v.
Ysleta del Sur Pueblo, 79 F.Supp.2d 708, 712 (W.D. Tex.
1999), affd sub nom. State v. Ysleta del Sur, 237
F.3d 631 (5th Cir. 2000)) ("The burden of proof rests
with the AG to identify a source of power authorizing him to
[bring suit] on behalf of the state.").
both judges agreed that a suit to abate a common nuisance
pursuant to Texas Civil Practice & Remedies Code §
125.002 provides a source of affirmative authority for the
attorney general to sue on behalf of Texas. Id.
Texas nuisance law provides that: "A suit to enjoin and
abate a common nuisance .. . may be brought by an individual,
by the attorney general, or by a district, county, or city
attorney." Tex. Civ. Prac. & Rem. Code §
125.002. The nuisance statute provides that:
A person who maintains a place to which persons habitually go
for the following purposes and who knowingly tolerates the
activity and furthermore fails to make reasonable attempts to
abate the activity maintains a common nuisance:
(5) gambling, gambling promotion, or communicating gambling
information as prohibited by the Penal Code[.]
Id. at § 125.0015. Thus, both judges ultimately
held that the AG retained capacity to sue provided that he or
she sought relief pursuant to Texas's nuisance statute.