City manager: Denton’s abortion rights resolution can’t be fully enforced

In a July 18 letter to the City Council, Denton City Manager Sara Hensley argues that she will not be able to implement a majority of the recommendations from the reproductive rights resolution council members passed 4-3 in late June, including telling police how and when to investigate crimes.

Hensley also won’t be changing city policies and procedures related to implementing the new resolution because the Denton Police Department already has “an extensive manual of general orders addressing the response to and the investigation of crime, and revisions to those general orders will be made, if necessary, once the operational issues are resolved.”

According to the June 28 resolution, the council recommended that, except to the extent otherwise required by state or federal law, city funds would not be used to:

1. Store or catalog any report of abortion, miscarriage or any other event that could be prosecuted as a violation of state law criminalizing pregnancy outcomes.
2. Provide information to any other governmental body or agency about pregnancy outcomes, unless such information is provided to defend the patient’s right to reproductive care, including abortion care, or the health care provider’s right to provide such care.
3. Conduct surveillance or collect data or other information related to any individual, organization, location, vehicle, action, financial record or internet activity for the purpose of determining whether an abortion has occurred, except for the collection of aggregated data without personally identifying information or personal health information for purposes unrelated to criminal investigation, enforcement or prosecution. It is the intention of the city of Denton that this does not apply in cases of conduct that is criminally negligent to the health of the pregnant person seeking care or where coercion or force is used against the pregnant person.
4. Investigation of or support for the prosecution of any allegation, charge, or information relating to a pregnancy outcome or any party thereto will be the lowest priority for enforcement and the use or assignment of resources and personnel, except in cases of conduct that is criminally negligent to the health of the pregnant person seeking care, where coercion or force is used against the pregnant person, or where the pregnancy outcome is not the crime being investigated but evidence of another crime, such as sexual assault.

Hensley wrote in her July 18 letter: “City Council lacks authority under the City Charter to instruct the Chief of Police how to perform his duties, including which laws to enforce and priority of that enforcement. I have similar constraints when it comes to the implementation of the approved resolution. While the Chief of Police is my direct report, the enforcement of criminal laws is the purview of the Chief of Police, not the city manager.

“Consequently, there are recommendations that I will not be able to implement such as provisions that allow our police to refuse to accept calls, investigate or make arrests regarding an alleged illegal abortion.”

Hensley’s move came shortly before the Austin City Council voted unanimously to pass the GRACE Act, which is also intended to limit enforcement of Texas’ abortion ban and which Denton’s resolution was modeled after. The acronym stands for Guarding the Right to Abortion Care for Everyone.

Adal Ivan Rivas, an Austin city spokesperson, said that to his knowledge, the city hasn’t received any pushback from Austin City Manager Spencer Cronk on the implementation of the GRACE Act.

“Though we don’t have a record of the city manager’s stance on the subject, we are confident all city executives will faithfully execute the recommendations of this resolution,” Rivas said.

Cronk hadn’t responded to requests for comment by Monday afternoon.

In her July 18 letter, Hensley detailed other recommendations she would not be able to implement from the June 28 resolution. Those recommendations include the provision that directs the municipal judge on how to perform duties related to a report, arrest or warrant related to abortions, nor can she tell police not to “store or catalogue a report of an abortion, miscarriage or any other event that could be prosecuted as a violation of a state law criminalizing pregnancy outcomes as that would conflict with the city’s legal requirement under the Public Information Act, the Code of Criminal Procedure and Local and State Records Retention Schedules.”

Hensley may have a point since Denton City Council’s authority, like Austin’s, is bound by “Dillon’s Rule,” as the Houston Chronicle pointed out in a report Friday. A late 19th-century legal precedent, Dillion’s Rule established that state law supersedes municipal law, Cal Jillson, a Southern Methodist University political science professor, told the Chronicle.

Jillson claimed these resolutions are part of an ongoing battle between blue cities and a red state. “This is performative politics, which are important,” she said, according to the Chronicle report.

As for recommendations Hensley will be able to include, city spokesperson Stuart Birdseye pointed to this portion of Hensley’s July 18 letter: “Denton police officers will not proactively engage in the unsolicited investigation, surveillance, or collection of data related to persons, organizations, or medical providers involving abortions or other reproductive related services.”

In her letter, Hensley assured everyone that at this time, Denton police doesn’t have a way to enforce Texas’ “trigger law” or the “fetal heartbeat law” since they haven’t received guidance from the state and don’t have medical expertise to investigate abortion cases. They’re not really sure who would be the lead investigator on such cases. It could be the Texas Attorney General’s Office, the local district attorney or the State Board of Medical Examiners.

Hensley said she had confirmed with Denton Police Chief Frank Dixon, who is leaving the position to become the assistant city manager, that Denton police won’t “proactively engage in the unsolicited investigation, surveillance, or collection of data” related to reproductive services.

Dixon couldn’t be reached for comment by Monday evening. In late June, Dixon told the Record-Chronicle it was too early to tell how the enforcement of Texas’ abortion laws will unfold in light of the Supreme Court issuing an opinion to overturn Roe v. Wade.

“Right now, there are more questions than answers. … It’s really uncharted territory,” he said.

Denton City Council member Chris Watts, who didn’t support Denton’s resolution, said Hensley’s letter was a result of rushing a resolution to passage without first discussing it with the city attorney, the police chief or other council members. He compared it to a false hope for community members. He also pointed out that council member Alison Maguire and others who supported the resolution were still changing it on the night of the vote.

“It is important not to take a resolution from an outside third party and put it to the vote [without vetting it first],” Watts said Monday. “These are kind of unintended consequences, and these kinds of resolutions aren’t enforceable.”

After Hensley’s letter was released in a report to city staff Friday, Deb Armintor, a former Denton council member and one of the thousands who supported the resolution, emailed her own letter to the four council members who had voted in support of the resolution and mentioned that the council recently had ousted a Denton County Transportation Authority city representative for not heeding a council resolution.

Those council members who supported the reproductive rights resolution are Brian Beck, Vicki Byrd, Maguire and Brandon Chase McGee.

Armintor claimed the resolution had built-in flexibility in the form of various exceptions Austin attorneys had crafted so it would be legally viable. She argued that neighbors will be reporting neighbors to police for their private health care decisions and claimed the trauma of being investigated or arrested will simply breed more distrust in city government and law, regardless of whether they’re exonerated.

“The explanation given in CM Hensley’s letter is too vague to justify such inaction on a resolution that was the will of a council majority to protect vulnerable residents who might be targeted by vigilante reports on their real or imagined private health care decisions,” Armintor wrote in her Sunday email.

Armintor urged Beck, Byrd, Maguire and McGee to call for a public hearing so that Hensley could explain publicly why she refuses to implement the resolution and respond to public questions about it.

“Council should have the opportunity in that public hearing to publicly respond to the city manager’s position, and to decide collectively and publicly on the consequences for a city manager’s refusal to heed the resolution of a Council majority vote,” Armintor wrote.

Reached Monday, Maguire, who had introduced the ordinance, said she did not wish to comment about Hensley’s decision at this time. Follow-up questions as to why had not been answered by Monday afternoon. Neither Byrd nor McGee had responded to requests for comment by Monday afternoon.

In a follow-up email Monday afternoon to the Record-Chronicle, Beck wrote that Hensley has issued public statements about wanting to follow council’s directives but worries about city risk and liability when it comes to the resolution.

As for Watts’ claim of rushing it through the process, Beck said he voted in support of the resolution and assumed it could be implemented as written. But he said he doesn’t want to discount Hensley’s concerns, whether he agreed with them or not.

“As a team, we need to work with her to acknowledge those concerns, but also identify that the perceived harms to the city are perhaps a false binary of women vs. the city, and rather are more a continuum of hypothetical city risks, some of which may be overblown, while others will be real but solved already by other Texas municipalities or through our own unique solutions.

“Together I believe we can work with Sara to continue to implement council directives, as she has indicated a desire to do, in a way that acknowledges risk, but which also maximizes the greatest good for the greatest number of folks truly at risk,” Beck added.

“I believe there remains opportunities to implement a more comprehensive version of our adopted policies that includes feedback from the public, and that feedback can take many forms, but I don’t believe a component of that feedback needs to be threats to job security for the city manager.”