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Texas Cases to Watch in 2021

Bracewell’s Yvonne Ho looked at with Law360 reporter Michelle Casady one of several cases practitioners should keep an eye on in the New Year.

A panel of Fifth Circuit judges are planning to hear oral arguments in a constitutional challenge to the State Bar of Texas’ mandatory dues structure, which alleges bar dues were being used in violation of the First Amendment and the US Supreme Court’s 2018 ruling in Janus v. AFSCME et al.

In June, the US Supreme Court declined to hear a similar challenge to the State Bar of Wisconsin’s mandatory dues scheme, prompting a dissent by Justice Clarence Thomas likening the payments to the union fees the court outlawed in its Janus decision.

Ho noted that Justice Neil Gorsuch joined in that dissent, but Justice Samuel Alito — who authored Janus — did not. Ho said she believes the case could end up before the high court. “Likely, even if the [Fifth Circuit] were to avoid the Janus question … that still wouldn’t fully resolve this case,” she said. “It also hinges on what the pre-Janus precedent means.”

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