Yesterday, Senator Cornyn released a press statement about the amicus brief he submitted in the City of Dallas v. Abbott case being argued before the Texas Supreme Court today.

The brief is now available online.

I had suggested that perhaps Cornyn would be offering advice about the Texas statute based on his own prior experience as AG. It turns out that the brief instead did emphasize a federal angle.

Cornyn’s brief argues that the statutory deadlines in the Texas open records law (the Public Information Act or PIA) should not be relaxed because they have recently been used as a model for an amendment to the federal Freedom of Information Act. In the end, the brief urges that (1) any relaxation of the Texas statute would impair Texas’s status as a national leader in this area and (2) any relaxation of the statute might nonetheless be followed by federal courts trying to make sense of those new federal amendments that were modeled on the Texas statute. (( There is of course some tension between saying “If you do X, people will not follow you” and saying “If you do X, people will blindly follow you.” The brief could be read, I suppose, as presenting alternative evils to the Court — an argument that either outcome should be bad, so you shouldn’t do X in the first place. Or there could be a more nuanced reading of Cornyn’s argument. ))

The brief takes no position on how to square the attorney-client privilege with the statute or how to evaluate whether there is a “compelling reason” not to disclose information protected by that privilege.

But, as an amicus brief, it doesn’t have to take an explicit position on the outcome. Instead, this amicus brief merely pointed out to the Court one possible implication of its decision that might otherwise have escaped its deliberations — how the Court’s interpretation of Texas law might bear on the interpretation of the federal FOIA. The Justices will be more informed about those concerns as they determine how broadly or narrowly to write any opinion in this case.