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Original Petition
Original Petition
_____________________
The State of Texas, by and through Ken Paxton, the Attorney General of Texas,
files this Original Verified Petition and Application for Temporary Restraining Order,
Temporary Injunction, and Permanent Injunction against Defendant Chris Hollins, in
his official capacity as Harris County Clerk. The State seeks an injunction against
Hollins to prevent him from sending over two million applications for mail ballots to
every registered voter in Harris County, irrespective of whether any given voter
requested an application or even qualifies to vote by mail. Hollins’ actions will create
confusion, facilitate fraud, and is an illegal ultra vires act because it exceeds his
statutory authority.
2. Plaintiff seeks injunctive relief. Therefore, this suit is not governed by the
expedited actions process in Tex. R. Civ. P. 169.
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 1
The State of Texas v. Chris Hollins
Venue
Parties
6. The plaintiff is the State of Texas, by and through its Attorney General,
Ken Paxton. Yett v. Cook, 115 Tex. 205, 221, 281 S.W. 837, 842 (1926) (“That the state
has a justiciable ‘interest’ in its sovereign capacity in the maintenance and operation of
its municipal corporations in accordance with law does not admit of serious doubt.”);
see also State v. Naylor, 466 S.W.3d 783, 790 (Tex. 2015) (“As a sovereign entity, the
State has an intrinsic right to enact, interpret, and enforce its own laws.”); Tex. Elec.
Code § 31.005(b) (providing that “the secretary may seek enforcement of [an] order
[under section 31.005] by a temporary restraining order or a writ of injunction or
mandamus obtained through the attorney general”).
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 2
The State of Texas v. Chris Hollins
quotation marks omitted); Tex. Elec. Code § 31.005 (proper defendant is “a person
performing official functions in the administration of any part of the electoral
processes” who “fails to comply” with an order from the Secretary of State).
Legal Background
10. It is also well-established law that Texas has a strong presumption that
voters will cast their ballots in person. “The history of absentee voting legislation in
Texas shows that the Legislature has been both engaged and cautious in allowing
voting by mail.” In re State, 602 S.W.3d 549, 558 (Tex. 2020). A qualified voter may
vote by mail only (a) “if the voter expects to be absent from the county of the voter’s
residence on election day,” Tex. Elec. Code § 82.001; (b) if the voter has a sickness or
physical condition that prevents the voter from appearing at the polling place on
election day, id. §82.002; (c) “if the voter is 65 years of age or older on election day,” id.
§ 82.003; or (d) if “at the time the voter’s early voting ballot application is submitted,
the voter is confined in jail,” id. § 82.004.
11. “To be entitled to vote an early voting ballot by mail, a person who is
eligible for early voting must make an application for an early voting ballot to be voted
by mail as provided by this title.” Id. § 84.001(a). “An application must be submitted by
mail to the early voting clerk.” Id. § 84.001(c). Hollins is the early voting clerk for
Harris County. See id. § 83.002.
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 3
The State of Texas v. Chris Hollins
12. “The early voting clerk shall conduct the early voting in each election.” Id.
§ 83.001(a). “The clerk is an officer of the election in which the clerk serves.” Id.
§ 83.001(b). “The clerk has the same duties and authority with respect to early voting
as a presiding election judge has with respect to regular voting, except as otherwise
provided by this title.” Id. § 83.001(c). “The presiding judge is in charge of and
responsible for the management and conduct of the election at the polling place of the
election precinct that the judge serves.” Id. § 32.071.
Factual Background
14. On August 25, 2020, the Harris County Clerk announced on Twitter,
“Update: our office will be mailing every registered voter an application to vote by mail.
To learn more about voting by mail in Harris County, Please visit
http://HarrisVotes.com/votebymail.” The tweet also stated, “Check your mail! Every
Harris County registered voter will be sent an application to vote by mail next month.”
https://twitter.com/HarrisVotes/status/1298372637912072193.
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 4
The State of Texas v. Chris Hollins
As of July 1, 2019, only 10.9% of the Harris County population is 65 years or older. See
U.S. Census Bureau, QuickFacts, Harris County, Texas, available at
https://www.census.gov/quickfacts/fact/table/harriscountytexas/PST045219. And from
2014-2018, only 6.4% of the Harris County population under 65 had a disability based
on ACS survey data. Id. In addition, the number of voters eligible but confined or
absent from the county on election day is necessarily limited. Thus, one can safely
conclude the vast majority of registered Harris County voters to whom Hollins intends
to send applications to vote by mail are not legally eligible to cast mail-in ballots.
16. Harris County has already sent vote-by-mail applications to every eligible
voter over the age of 65, all of whom are eligible to vote by mail. “Nearly 400K vote-by-
mail applications sent to Harris Co. seniors ahead of election,” Shelley Childers,
Thursday, June 11, 2020 (https://abc13.com/texas-mail-in-ballot-voting-coronavirus-
during/6243587/) (“[Hollins] said the county clerk’s office sent out nearly 400,000 mail-
in-ballot applications to Harris County voters who are 65 and older.”).
17. On August 27, 2020, Keith Ingram, Director of Elections for the Texas
Secretary of State, sent a letter to Hollins, stating, “It has come to our office’s attention
that Harris County intends to send an application to vote by mail to every registered
voter in the county. Such action would be contrary to our office’s guidance on this issue
and an abuse of voters’ rights under Texas Election Code Section 31.005.” Exhibit 1.
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 5
The State of Texas v. Chris Hollins
19. The letter concluded, “[Y]ou must immediately halt any plan to send an
application for ballot by mail to all registered voters and announce its retraction. If you
have not done so by noon on Monday, August 31, 2020, I will request that the Texas
Attorney General take appropriate steps under Texas Election Code 31.005.” Id.
20. On August 28, 2020, Hollins responded that he disagreed with Ingram
and would not halt his plans to distribute applications to vote by mail to all registered
voters of Harris County regardless of whether such applications were requested or
whether the voter is eligible to vote by mail. Exhibit 2. Rather, Hollins indicated that
he would include literature with the mailings that would explain the criteria for voting
mail ballots. Id.
21. As of noon, August 31, 2020, Hollins had not complied with Ingram’s
demand.
22. The Court should issue such an injunction because Hollins lacks the
authority to send vote-by-mail applications to every registered voter in Harris County.
His decision to do so is therefore ultra vires. That is particularly true here, where
Hollins plans to send millions of applications regardless of whether those recipients
request such applications and regardless of whether they even qualify to vote a mail
ballot.
23. In an ultra vires case, a plaintiff must allege, and ultimately prove, that
an officer acted without legal authority or failed to perform a purely ministerial act.
City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
24. Counties in Texas are limited to exercising those powers that are
specifically conferred on them by statute or the constitution. Guynes v. Galveston Cty.,
861 S.W.2d 861, 863 (Tex. 1993). The County has no sovereign power of its own: It “is a
subordinate and derivative branch of state government.” Avery v. Midland Cty., 406
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 6
The State of Texas v. Chris Hollins
S.W.2d 422, 426 (Tex. 1966), rev’d on other grounds, 390 U.S. 474 (1968); see TEX.
CONST. art. IX, § 1 (“The Legislature shall have power to create counties for the
convenience of the people”); id. art. XI, § 1 (“The several counties of this State are
hereby recognized as legal subdivisions of the State.”). As a political subdivision, the
County “represent[s] no sovereignty distinct from the state and possess[es] only such
powers and privileges” as the State confers upon it. Wasson Interests, Ltd. v. City of
Jacksonville, 489 S.W.3d 427, 430 (Tex. 2016) (quotation omitted); accord Quincy Lee
Co. v. Lodal & Bain Engineers, Inc., 602 S.W.2d 262, 264 (Tex. 1980).
25. A commissioners court also has power “necessarily implied to perform its
duties.” City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003). Such
powers must, however, be “indispensable” to perform such an express grant of
authority, Foster v. City of Waco, 255 S.W. 1104, 1105–06 (Tex. 1923). “Any fair,
reasonable, substantial doubt concerning the existence of power is resolved by the
courts against the corporation, and the power is denied.” Id.
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 7
The State of Texas v. Chris Hollins
29. The first step in that process is sending applications to vote by mail to
voters who first ask for them. Voters who take the step of requesting a vote-by-mail
application have presumably reviewed the eligibility criteria in good faith.
31. Even if the voter rolls in Harris County were perfect, however, sending
out applications to vote by mail undermines the function of the system. Voting by mail
is a cumbersome process with many steps to limit fraud. Most voters do not qualify for
voting by mail. Flooding Harris County with millions of unrequested applications on
the eve of an election may thus prevent the timely processing of those who are eligible
to vote by mail. This is especially true since, as noted above, Harris County has
already sent applications to every voter over the age of 65, who are eligible to vote by
mail.
32. But sending vote-by-mail applications to every voter, without any attempt
at all to tailor such a mass-mailing to persons who definitively are eligible to vote by
mail, is certain to result in large numbers of vote-by-mail applications from voters who
are ineligible to vote by mail. Regardless of whether Hollins includes literature in his
mailing attempting to explain vote-by-mail criteria, it is inevitable that voters who
receive applications from a public official with the imprimatur of state authority will
wrongly assume they are eligible to vote a mail ballot. This confusion is especially
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 8
The State of Texas v. Chris Hollins
likely to occur given the large amounts of misinformation provided over the last
several months regarding who is and is not eligible to vote by mail in light of the
COVID-19 epidemic. See In re State, 602 S.W.3d 549, 557-560 (Tex. 2020) (rejecting
argument by Harris County Clerk that lack of immunity to COVID-19 constitutes a
“disability” qualifying voters to cast mail ballots); Letter to County Officials from
Attorney General Ken Paxton, May 1, 2020, at 1 (providing guidance on qualifications
to vote by mail based on disability in light of “misreporting and public confusion”
surrounding that issue).
33. The court must thus infer that some of those ineligible voters will submit
the applications and be incorrectly approved to vote. Even if Hollins’ office is perfect in
screening out ineligible voters, this could itself lead to disenfranchisement because
voters who submit deficient applications to vote by mail after a certain date may not
receive notice that they must attend the polls in person. Tex. Elec. Code. § 86.008(c).
The Election Code cannot give the Harris County Clerk the implied power to cause
such confusion and disenfranchisement.
35. The Secretary’s office also observed that “by sending an application to
every registered voter, you could impede the ability of persons who need to vote by
mail to do so. Clogging up the vote by mail infrastructure with potentially millions of
applications from persons who do not qualify to vote by mail will make it more difficult
for eligible mail voters to receive their balloting materials in a timely manner and will
hamper efforts to qualify and count these ballots when received by your office.” Id.
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 9
The State of Texas v. Chris Hollins
36. Hollins has rejected that guidance and declared his intent to proceed with
his plan to send a vote-by-mail application to every registered voter in Harris County,
regardless of whether that application was requested or whether the recipient
qualifies to vote by mail.
38. “The purpose of a TRO is to preserve the status quo, which we have
defined as the last, actual, peaceable, non-contested status which preceded the
pending controversy.” In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (footnote and
internal quotation marks omitted).
39. If the Court does not issue the requested temporary restraining order, the
status quo will be irrevocably broken. Hollins’ public statements and communications
with the Secretary’s office indicate that he intends to carry out his plan soon. Once
that happens, there will be no way to recall more than two million pieces of mail.
40. The State will suffer irreparable injury in that event. As a sovereign
entity, Texas has an inherent right to enforce its own law. Naylor, 466 S.W.3d at 790.
And the State “indisputably has a compelling interest in preserving the integrity of its
election process.” Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989).
That right will be fundamentally undermined the moment that mail goes out. And no
other way exists to make Plaintiff whole. The State’s sovereign interest cannot be
remedied with monetary damages. State officers will be required to combat the
confusion that will inevitably result from Hollins’s action. Even if they were able to
divert their full attention to that task, it likely will not repair the resulting damage.
Moreover, time they spend on this issue will distract them from their other critical
duties just weeks before an election.
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 10
The State of Texas v. Chris Hollins
41. Therefore, the State is entitled to a temporary restraining order
preserving the status quo by enjoining Hollins from sending unsolicited vote-by-mail
applications until the temporary injunction hearing.
43. Plaintiff must prove three elements to obtain a temporary injunction: (1)
a cause of action against the defendant; (2) a probable right to the relief sought; and
(3) a probable, imminent, and irreparable injury in the interim. Id.
44. Plaintiff describes its probable right to recovery above. Plaintiff is not
required to establish that it will prevail at trial to obtain a temporary injunction.
Butnaru at 211.
47. Plaintiff requests trial on the merits, where it will seek a permanent
injunction enjoining Hollins from committing the ultra vires act of sending unsolicited
vote-by-mail applications to every registered voter.
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 11
The State of Texas v. Chris Hollins
Prayer
49. Plaintiff requests that Defendant disclose, within 50 days of the service of
this request, the information or material described in Texas Rules of Civil Procedure
194.2.
Notice of Hearing
Respectfully submitted,
KEN PAXTON
Attorney General
JEFFERY C. MATEER
First Assistant Attorney General
RYAN L. BANGERT
Deputy First Assistant Attorney General
DARREN L. MCCARTY
Deputy Attorney General for Civil Litigation
CHARLES K. ELDRED
Assistant Attorney General
KATHLEEN HUNKER
Assistant Attorney General
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 12
The State of Texas v. Chris Hollins
/S/ Charles K. Eldred ___
CHARLES K. ELDRED
State Bar No. 00793681
Plaintiff’s Original Verified Petition and Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction Page 13
The State of Texas v. Chris Hollins