The Pittman Appeal: Reasonable Diligence

I have a good many emails asking about the Pittman case and why it’s being appealed. Also, there has been a good deal of discussion  about the state of Texas’ (really, DPS’) intentions and I want to take a moment to lend some insight to the entire process.

After the state filed a notice of intent to appeal a final ruling from U.S. District Judge Mark Pittman, who declared that Texas’ prohibition on legal handgun carry by those under the age of 21 was unconstitutional, some chose to go on the warpath, vilifying  Texas Attorney General Ken Paxton, Department of Public Safety Director Steve McCraw, and Texas Governor Greg Abbott.

There’s just one problem: None of the accusations are justified.

All that was filed was a notice of intent to appeal. Here are the actual words of the notice:

Notice is hereby given that Defendant Steven McCraw, in his official capacity as Director of the Texas Department of Public Safety, hereby appeals to the United States Court of Appeals for the Fifth Circuit from the Court’s Amended Final Judgment, (Doc. 76), entered August 29, 2022.”

That’s it. 

There is no mention of what is being appealed, whether it is the entire ruling or just part of it. There is no mention of any grounds that might be used to support the appeal.

It is simply a notice of intent that was filed before the expiration of the 30-day stay that Judge Pittman allowed precisely for the purpose of allowing time to file an appeal.

The notice was filed by the Texas Attorney General’s office. Does this mean Ken Paxton has suddenly abandoned his long-held support for gun rights? Not at all.

An official agency of the state of Texas was sued. Ken Paxton is the state’s top attorney, so it is part of his job to defend the state. Paxton’s personal feelings about Judge Pittman’s ruling play no part in this; he is an attorney doing the job he was elected to do.

McCraw’s actions are also understandable. As the head of the DPS, he is the primary defendant in the case because he is the person most in charge of enforcing the laws the legislature passed. Personal opinions aren’t involved; McCraw is legally required to defend his department because the legislature is not in session to consider new legislation based on Judge Pittman’s ruling. The Texas Department of Public Safety does not have the authority to change the law.

Much is being made about the lack of official comment but only those unfamiliar with the judicial process would be surprised. The final amended judgment was filed on August 29; the notice of appeal was filed on September 20. Since Judge Pittman rejected the arguments advanced by the state after the Bruen decision, Paxton’s office is researching to find support that the district court might accept. It’s called “reasonable diligence” and it is what attorneys are required to do: And it takes time.

Anyone saying otherwise has not done their own reasonable  diligence and risks angering our allies and steadfast friends in state government and the legislature. No matter what the courts and legislature decide, the DPS will enforce those laws, too. 

The Texas State Rifle Association Political Action Committee stands by the US Constitution. We understand the DPS’ position but Judge Pittman’s decision is constitutionally sound.