Texas Democratic Party et al v. Abbott, Governor of Texas et al

Filing 1

COMPLAINT ( Filing fee $ 400 receipt number 0542-13432334). No Summons requested at this time, filed by Joseph Daniel Cascino, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party, Brenda Li Garcia. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B)(Dunn, Chad)

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EXHIBIT A

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No. D-1-GN-20-001610
TEXAS DEMOCRATIC PARTY AND
GILBERTO HINOJOSA, IN HIS
CAPACITY AS CHAIRMAN OF THE
TEXAS DEMOCRATIC PARTY,
JOSEPH DANIEL CASCINO AND
SHANDA MARIE SANSING,
Plaintiffs,
v.
DANA DEBEAUVOIR,
IN HER CAPACITY AS TRAVIS
COUNTY CLERK,
Defendant.
STATE OF TEXAS,
Intervenor.

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3/27/2020 2:54 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-20-001610
Nancy Rodriguez

IN THE DISTRICT COURT

TRAVIS COUNTY, TEXAS

201st JUDICIAL DISTRICT

STATE OF TEXAS’S PLEA IN INTERVENTION
The State of Texas, by and through the Attorney General of Texas, respectfully
intervenes in this case under Rule 60 of the Texas Rules of Civil Procedure to protect
its interest in the uniform, consistent application of its laws in the State’s upcoming
elections. The State has a strong and unique interest in ensuring that its elections
are conducted in a fair and consistent manner. Plaintiffs here seek an advisory
opinion that they hope would result in different and potentially unfair applications
of the Texas Election Code across multiple elections for various State-level positions.
Texas intervenes in this case to avoid that outcome.

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BACKGROUND
The State of Texas allows early voting by mail, provided the person seeking to
vote by mail meets the qualifications stated in the Election Code. See TEX. ELEC. CODE
Ch. 82. Qualifications to vote early by mail are:
•

Declaring an anticipated absence from the county of residence on election
day;

•

Declaring a disability;

•

Demonstrating that the person seeking to vote by mail is over the age of 65;
or,

•

The person seeking to vote by mail anticipates being jailed during the
voting period.

TEX. ELEC. CODE §§ 82.001-.004.
With respect to “disability,” the Texas Election Code provides that a “qualified
voter is eligible for early voting by mail if the voter has a sickness or physical
condition that prevents the voter from appearing at the polling place on election day
without a likelihood of needing personal assistance or of injuring the voter’s health.”
Id. § 82.002(a).
The early voting clerk in each county is responsible for conducting early voting
and thus is the official who would review an application from a voter to vote by mail.
See id. § 86.001(a) (“The early voting clerk shall review each application for a ballot
to be voted by mail.”). For most state- and county-wide elections, the county clerk or

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elections administrator serves as the early voting clerk, 1 whereas “[t]he city secretary
is the early voting clerk for an election ordered by an authority of a city.” Id. § 83.005.
Each locality’s early voting clerk is responsible for determining whether an
application to vote by mail complies with all statutory requirements, providing notice
and instructions to cure to a voter who submits a noncompliant application, and
“provid[ing] an official ballot envelope and carrier envelope with each ballot provided
to a voter” who properly completes an application. Id. §§ 86.001(a), .008, .009, .002(a).
After a voter marks their mail-in ballot, they must return it to the early voting clerk
in the official carrier envelope. Id. § 86.006(a). These requirements, though handled
by local election officials, apply uniformly throughout Texas.
On March 20, 2020, Plaintiffs filed their Original Petition and Application for
Temporary Injunction, Permanent Injunction, and Declaratory Judgment (“Pet.”),
asserting jurisdiction under the UDJA (Texas Civil Practice and Remedies Code
§ 37.003) and Texas Election Code § 271.081. Plaintiffs request a declaration that
Texas Election Code § 82.002 “allows any eligible voter, regardless of age and physical
condition, to request, receive and have counted, a mail-in ballot, if they believe they
should practice social distancing in order to hinder the known or unknown spread of
a virus or disease.” Pet. ¶ 22(a). Plaintiffs further seek to permanently enjoin the
Travis County Clerk, in her official capacity, 2 “to accept and tabulate any mail-in
TEX. ELEC. CODE § 83.002; but see id. §§ 83.003 (clerk in less-than-countywide elections held at county
expense); 83.004 (clerk in elections ordered by county not held at county expense); 31.043 (county
elections administrator performs, among other things, duties of county clerk. See also Election Duties,
TEXAS SECRETARY OF STATE, available at https://www.sos.state.tx.us/elections/voter/county.shtml
(listing early voting clerks).
2 Plaintiffs initially named Ruth R. Hughs, in her official capacity as Texas Secretary of State, as a
defendant in this lawsuit, but nonsuited their claims against her two days after filing suit.
1

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ballots received from voters in an upcoming election who believe that they should
practice social distancing in order to hinder the known or unknown spread of a virus
or disease.” Pet. ¶ 22(b).
The State now files this timely plea in intervention. See TEX. R. CIV. P. 60; TEX.
CIV. PRAC. & REM. CODE § 37.006(b).
STANDARD FOR INTERVENTION
“Any party may intervene [in a case] by filing a pleading, subject to being
stricken out by the court for sufficient cause on the motion of any party.” TEX. R. CIV.
P. 60. An intervenor is not required to secure a court’s permission to intervene in a
cause of action. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,
657 (Tex. 1990). Rather, an intervenor need only show a “justiciable interest in a
pending suit to intervene in the suit as a matter of right.” In re Union Carbide Corp.,
273 S.W.3d 152, 154 (Tex. 2008). “A party has a justiciable interest in a lawsuit, and
thus a right to intervene, when his interests will be affected by the litigation.” Jabri
v. Alsayyed, 145 S.W.3d 660, 672 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(citing Law Offices of Windle Turley v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.—
Fort Worth 2003, no pet.)). “The interest asserted by the intervenor may be legal or
equitable.” Guar. Fed. Sav. Bank, 793 S.W.2d at 657 (citation omitted).
With respect to the timing of an intervention, there is no pre-judgment
deadline for intervention. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex.
2008) (citing TEX. R. CIV. P. 60; Citizens State Bank of Sealy v. Caney Invs., 746
S.W.2d 477, 478 (Tex. 1988)). Texas courts recognize an “expansive” intervention

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doctrine in which a plea in intervention may be untimely only if it is “filed after
judgment,” Texas v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (quoting First Alief Bank
v. White, 682 S.W.2d 251, 252 (Tex. 1984)), though even post-judgment interventions
are permissible under certain circumstances. Ledbetter, 251 S.W.3d at 36 (citing In
re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 725–26 (Tex. 2006)).
There is no final judgment in this case, and this intervention was brought
within a week of the lawsuit being filed. Texas’s intervention is timely.
THE STATE’S INTERESTS
Plaintiffs seek a preemptive advisory opinion interpreting the Election Code’s
definition of “disability” for purposes of early voting. Texas has a justiciable interest
in this lawsuit because that advisory opinion would at minimum cause tremendous
confusion and could lead to unequal and inequitable application of the Election Code
across the State. Moreover, providing that advisory opinion may require the Court to
opine on the constitutionality of Texas’s rules for mail-in ballots—a question on which
the Attorney General has a statutory right to opine.
Texas has a strong interest in the efficient administration of its elections and
in consistent application of its election laws across its 254 counties. Cf. Maryland v.
King, 567 U.S. 1301, 1303 (2012) (“[A]ny time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers a form of
irreparable injury.” (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434
U.S. 1345 (1977) (citations omitted)); True the Vote v. Hosemann, 43 F. Supp. 3d 693,
742 (S.D. Miss. 2014) (“The State . . . has a significant interest in enforcing its enacted
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laws.”). And the UDJA provides that, “[w]hen declaratory relief is sought, all persons
who have or claim any interest that would be affected by the declaration must be
made parties.” TEX. CIV. PRAC. & REM. CODE § 37.006(b). Plaintiffs seek declaratory
relief that would alter the Election Code’s standard for voting a ballot by mail—and
would do so in Travis County only. Because this undermines Texas’s interest in
uniform election administration, the State must be made a party to this case under
§ 37.006(b). Id.
This interest is particularly acute because Plaintiffs’ requested relief is not
limited to county officials, but instead extends to state-level legislative officials—for
example, members of the Senate. Counties have been delegated certain authority to
administer local- and state-level elections. E.g., TEX. ELEC. CODE § 83.002,
Nevertheless, the State retains a strong interest in maintaining control over the
qualifications and method of selection for members of its Legislature lest “‘render[]
too dependent on the [local] governments that branch . . . which ought to be
dependent on the people alone.’” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,
808 (1995) (quoting The Federalist No. 52, p. 326 (C. Rossiter ed. 1961) (Madison)).
To put it more concretely, Texas State Senate District 21 represents not Travis
County but the people of Travis and multiple other counties. The State has a strong
interest in the consistent application of its election laws across counties so that all of
those Texans have the opportunity to elect their representative in the State Senate
on equal terms. Cf. id.

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Moreover, the Attorney General has a statutory interest sufficient to intervene
because, though Plaintiff purports to seek an advisory opinion regarding the meaning
of State law, their allegations implicate the constitutionality of that law. The
Attorney

General

has

intervened

in

numerous

instances

to

defend

the

constitutionality of State laws. See, e.g., Wilson v. Andrews, 10 S.W.3d 663, 666 (Tex.
1999) (“The Attorney General intervened to defend [Texas Local Government Code §
143.057(d)]’s constitutionality.”); Corpus Christi People’s Baptist Church, Inc. v.
Nueces County Appraisal Dist., 904 S.W.2d 621, 624 (Tex. 1995) (“The Attorney
General intervened for the limited purpose of defending the constitutionality of
section 11.433 [of the Texas Tax Code].”). And Texas Civil Practice and Remedies Code
§ 37.006(b) requires that the Attorney General be notified about, and is “entitled to
be heard” in, “any proceeding” in which a “statute, ordinance, or franchise is alleged
to be unconstitutional.” TEX. CIV. PRAC. & REM. CODE § 37.006(b). The Texas Supreme
Court and courts of appeal have recognized that the Attorney General can intervene
to defend State statutes against constitutional attack. See, e.g., Motor Vehicle Bd. of
the Tex. Dep’t of Transp. v. El Paso Indep. Auto Dealers Ass’n, Inc., 1 S.W.3d 108, 110
(Tex. 1999); Mercer v. Phillips Natural Gas Co., 746 S.W.2d 933, 940 (Tex. App.—
Austin 1988, writ denied) (under § 37.006(b), “[t]he Attorney General is specifically
authorized to be made a party to any litigation involving the constitutionality of a
statute.”).
Though Plaintiffs appear to disclaim, at least for the moment, a constitutional
challenge, the Election Code is “alleged to be unconstitutional.” TEX. CIV. PRAC. &

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REM. CODE § 37.006(b) (emphasis added). As a result, if the Court were to resolve
their Petition on the merits, it may have to address the validity or constitutionality
of § 82.002(a) as written and enforced in Travis County. See, e.g., Pet. ¶ 14 (Arguing
that “the Right of Association granted by the First Amendment to the U.S.
Constitution provides that political parties are free to select their party nominees
without undue government influence” and that “[a]n immediate decision interpreting
state law is required so that election preparations can continue in compliance
therewith.”). Accordingly, the Attorney General is permitted to intervene and be
heard in this case pursuant to Civil Practice and Remedies Code § 7.006(b). See Clint
Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 547 (Tex. 2016).
CONCLUSION
For these reasons, the State of Texas intervenes in this action for the limited
purpose of opposing Plaintiffs’ request for declaratory and injunctive relief.

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Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
DARREN L. MCCARTY
Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT
Chief for General Litigation Division
/s/Anne Marie Mackin
ANNE MARIE MACKIN
Texas Bar No. 24078898
MICHAEL R. ABRAMS
Texas Bar No. 24087072
Assistant Attorneys General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
[phone] | FAX: [phone]
[e-mail]
[e-mail]
ATTORNEYS FOR INTERVENOR
STATE OF TEXAS

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CERTIFICATE OF SERVICE
I certify that on March 27, 2020, the foregoing instrument was served
electronically through the electronic-filing manager in compliance with TRCP 21a to:
Chad W. Dunn
State Bar No. 24036507
Brazil & Dunn, LLP
4407 Bee Caves Road, Suite 111
Austin, Texas 78746
[phone] Tel.
[phone] Fax
[e-mail]
K. Scott Brazil
State Bar. No. 02934050
Brazil & Dunn, LLP
13231 Champion Forest Drive, Suite 406
Houston, Texas 77069
[phone] Tel.
[phone] Fax
[e-mail]
Dicky Grigg
State Bar No. 08487500
Law Office of Dicky Gregg, P.C.
4407 Bee Caves Road, Suite 111
Austin, Texas 78746
[phone] Tel.
[phone]
[e-mail]
Martin Golando
The Law Office of Martin Golando, PLLC
State Bar No. 24059153
N. Saint Mary’s, Suite 700
San Antonio, Texas 78205
[phone]
[e-mail]
ATTORNEYS FOR PLAINTIFFS

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I further certify that on March 27, 2020, the foregoing instrument was served
via email upon:
Sherine Thomas
[e-mail]
Leslie Dippel
[e-mail]
ATTORNEYS FOR DANA DEBAEUVOIR
IN HER CAPACITY AS TRAVIS COUNTY CLERK
/s/Anne Marie Mackin
ANNE MARIE MACKIN
Assistant Attorney General

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