For the second time since June, a federal judge has refused to dismiss East Plano Islamic Center's religious-bias suit against the Texas Funeral Services Commission. The September 9 order, Dkt. #67, runs 30-plus pages per the docket and denies the commission's motion to dismiss. The case now heads into discovery.
Senior U.S. District Judge David Alan Ezra of the Western District of Texas rejected all three agency arguments. The agency defendants removed the case from Travis County state court, moved to dismiss (Dkt. #55, filed April 30, 2026), and argued sovereign immunity, which generally shields state agencies from federal suits. The order states that "by voluntarily removing this case," the "Agency Defendants knowingly waived their ability to assert an Eleventh Amendment defense or any permutation of sovereign immunity." The opinion: "Federal jurisdiction is not a game of whack-a-mole."
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The waiver, the order holds, also covers the ultra vires claims; ultra vires means an official acted beyond lawful authority. The case is ripe because the cease-and-desist letter was a completed act, and the eve-of-TRO "clarification" letter does not moot it. "Agency Defendants can change their minds," the order says, citing *Speech First v. McCall*.
The order applies Madison's warning about governments that "employ Religion as an engine of Civil policy" to those who "employ religion as an engine of civil regulatory and criminal enforcement."
By the Numbers
EPIC, a Plano mosque, filed suit July 11, 2025. The complaint describes washing, shrouding, and the Janaza prayer performed with licensed funeral providers, free of charge. Islamic law calls for prompt burial. The March 26, 2025 cease-and-desist letter accused EPIC of operating "as a funeral home without an establishment license" (Tex. Occ. Code section 651.351), sent a criminal referral to the Collin County District Attorney, and identified no specific violation. The complaint alleges "at least eleven congregants" were "buried without receiving the Janaza prayer at their mosque." A July 2025 commission letter said the Janaza prayer and a hotline do not violate the cease-and-desist (Dkt. #67).
The second amended complaint (Dkt. #46) pleads seven counts: ultra vires against the executive director; two Texas constitutional claims; First Amendment free exercise via 42 U.S.C. 1983 against the executive director; Texas RFRA against the commission; free exercise via 1983 against Tips individually; and an equal-protection claim the court construed from a mislabeled plea. EPIC seeks a permanent injunction, declaratory judgment, compensatory and punitive damages from Tips, commission damages up to the RFRA cap, and attorney fees.
The June 24 order (Dkt. #58) denied her dismissal motion (Dkt. #47, filed January 5, 2026), which invoked qualified immunity; that doctrine protects officials unless they violated a clearly established right. Ezra found "it can be reasonably inferred that the C&D Letter and Tips's role therein was the result of religious discrimination." Tips, he held, violated the clearly established right "that our laws be applied in a manner that is neutral toward religion." The holding: prohibiting a faith's funeral rites while allowing similar rites by others, and departing from longstanding TFSC practice, violates free exercise and equal protection rights.
Footnote 6 finds no evidence that Islamic burial rites are the "Sharia law" that threatens Texas law. Complaint paragraphs 57-70 allege Tips gave near-daily direction to then-executive director Scott Bingaman. She forwarded the Texas attorney general's EPIC press release at 4:32 PM the day before the letter and wrote "hold tight ... coordinating with the Governor's office" that morning. She shared material saying Muslims are "taught hate," a video saying EPIC City would breed "terrorists," and a photo of a Muslim legislator sworn in on a Qur'an "as if that were improper or disloyal."
KERA reported April 14, 2026 that Tips "is no longer serving as presiding officer"; the governor's office "did not clarify whether Tips resigned or was removed." The commission's site now lists Eric Opiela as presiding officer. KERA describes the agency turmoil: Bingaman's firing, six-plus staff fired, anti-Muslim texts, and Mission Park's $8 million and $1 million-plus verdicts. Bingaman claims Tips used agency resources to benefit Mission Park Funeral Chapels and lobbied for damage-cap bills; commissioners counter-claim that "Bingaman misappropriated funds." His Open Meetings Act and Whistleblower suit is ongoing.
The commission met October 8. Agenda item XV, "Pending or contemplated litigation," lists "Bingaman v. TFSC" and "East Plano Islamic Center v. TFSC," under a notice allowing closed session "if authorized by the Texas Open Meetings Act." The same agenda carries a personnel item on Executive Director Maria Haynes.
What comes next is evidence. The court's docket shows EPIC's Dkt. #70 motion to compel set for hearing October 29, 2026 at 10:00 a.m. before U.S. Magistrate Judge Mark Lane in Austin. A motion to compel asks the court to order production of materials; the docket entry names requests for production No. 7 and a set of interrogatories as the items in dispute. Judge Lane's October 6 text order directs the parties to meet and confer and file a joint notice by October 26 identifying what they resolved and what remains. Dismissal rulings assume the complaint's facts are true.
What This Means for You
Two dismissal motions, two denials. The commission lost its sovereign-immunity defense September 9; Tips lost qualified immunity at the pleading stage June 24. The docket's next event is an October 29 hearing on a motion to compel.
The second amended complaint puts its demand in plain terms: "Plaintiffs demand a jury trial."
*Sources: Dkt. #67 memorandum opinion and order, September 9, 2026; Dkt. #58 order, June 24, 2026; Dkt. #46 second amended complaint, December 22, 2025; Dkt. #47 and Dkt. #55 motions; Dkt. #70 and the October 6, 2026 text order via the CourtListener docket; filings via CourtListener/PACER, Case 1:25-cv-01085, U.S. District Court for the Western District of Texas, Austin Division; Justia docket snapshot, January 6, 2026; Texas Funeral Services Commission October 8, 2026 meeting agenda and commissioners page, tfsc.texas.gov; KERA, April 14, 2026 and June 29, 2026; CAIR press release, June 26, 2026.*
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