Case 4:21-cv-03577 Document 1 Filed on 10/29/21 in TXSD Page 1 of 13

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

A & R ENGINEERING AND TESTING, INC., Case No.

Plaintiff, VERIFIED COMPLAINT

vs.

CITY OF HOUSTON; and

KEN PAXTON, in his official capacity as

Attorney General of Texas,

Defendants.

Plaintiff A & R Engineering and Testing, Inc. (“A&R”), by and through its

undersigned counsel, CAIR LEGAL DEFENSE FUND (“CAIR”), files this Verified

Complaint against the City of Houston (the “City”) and Ken Paxton (collectively

“Defendants”). The Complaint alleges violations of the First and Fourteenth Amendments

to the United States Constitution pursuant to 42 U.S.C. § 1983.

INTRODUCTION

1. The First Amendment protects the rights of all speakers to advocate for all

viewpoints on issues of public concern. “If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion or force citizens to confess by word

or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

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2. The conflict between Israel and Palestine is a longstanding issue of

considerable public concern, both in the United States and internationally, to which

politicians, professionals, and the press dedicate considerable energy and resources.

3. In 2017, the State of Texas chose to categorically take Israel’s side in this

international conflict by adopting Tex. Gov’t Code § 2271.001 et. seq. This Anti-BDS Law

bars the State of Texas from entering into government contracts with companies which

boycott Israel.

4. On October 13, 2021, the City of Houston sent A&R a renewal contract to

provide engineering services for the City. A&R had been contracting with the City for about

17 years. Section 2.19.1 of the renewal contract required A&R to certify that it “is not

currently engaging in, and agrees for the duration of this Agreement not to engage in, the

boycott of Israel as defined by Section 808.001 of the Texas Government Code.”

5. That same day, A&R refused to sign the contract, stating, “It is my right and

duty to boycott Israel and any products of Israel. This policy is against my constitutional right

and against International Law.”

6. A&R demanded that the City take Section 2.19.1 out of the contract and

declined to sign.

7. The City refused and told A&R, “Because this is state law, the refusal to sign

the agreement because of the Israel issue means that the City cannot move forward with an

agreement with this contractor.”

8. Texas’s ban on contracting with any boycotter of Israel constitutes viewpoint

discrimination that chills constitutionally-protected political advocacy in support of Palestine.

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9. This Court should enjoin the City of Houston from offering and/or executing

the contract with another company to preserve the status quo of the parties.

10. This Court should also enjoin enforcement of Tex. Gov. Code § 2271.001 et.

seq. and the “No Boycott of Israel” clause under the First Amendment, thereby permitting

Plaintiff to renew its engineering contract with the City.

PARTIES

11. Plaintiff A&R Engineering and Testing, Inc., is a for-profit corporation

providing engineering services. It is incorporated in the state of Texas with its principal place

of business in Houston, Texas.

12. Defendant City of Houston is a Texas municipality with a physical address of

901 Bagby, Houston, TX, 77002, and a mailing address of P.O. Box 1562, Houston. TX,

77251.

13. Defendant Ken Paxton is the Attorney General of Texas. The Attorney

General’s principal office is located at 300 W. 15th Street, Austin, TX 78701. He is responsible

for enforcing and defending the constitutionality of Texas law. Defendant Paxton is sued in

his official capacity, only.

JURISDICTION & VENUE

14. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because this

action arises under federal law, namely the First and Fourteenth Amendments to the U.S.

Constitution, and 42 U.S.C. § 1983.

15. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202.

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16. This Court has personal jurisdiction over the Defendants because they reside in

this district.

17. A substantial part of the events or omissions giving rise to the claims alleged in

this Complaint occurred in this Judicial District. Venue therefore lies in the United States

District Court for the Western District of Texas pursuant to 28 U.S.C. § 1391(b)(2).

FACTUAL BACKGROUND

The Israel – Palestine Conflict is a Fraught Issue of International Importance

18. The relationship between Israel and Palestine is a significant international

political conflict. One of the core disputes within that conflict concerns Israel’s continuing

occupation and settlement of Palestinian territories, including the West Bank and Golan

Heights.

19. On December 23, 2016, the United Nations Security Council unanimously

(with the United States abstaining) adopted Resolution 2334. The Resolution condemned

Israeli settlements in the Occupied Palestinian Territories and reaffirmed that continuing

settlements “constitute[e] a flagrant violation under international law and a major obstacle to

the achievement of the two-State solution and a just, lasting and comprehensive peace.” The

Resolution additionally condemned Israeli violence and human rights abuses against

Palestinians.

20. A robust international movement seeks to impose economic pressure on Israel

to cease its settlement activity in Palestinian Territory. Calling itself “Boycott, Divestment,

and Sanctions” or “BDS,” the movement seeks the peaceful end of Israeli discrimination

against and maltreatment of Palestinians. The BDS movement specifically encourages

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economic divestment from institutions that are not in compliance with established

international law related to the Israeli occupation of Palestine.

21. The United States has historically discouraged Israeli settlements as

“inconsistent with international law.” Overall, however, U.S. policy strongly supports Israel,

and the U.S. and Israel enjoy close political and economic relationships. These friendly

relations have tended to soften or mute the United States’ criticism of Israeli settlements. The

United States abstained from Resolution 2334 due to its political support of Israel, and

previously vetoed a similar U.N. Resolution in February 2011.

22. The merits of all perspectives in the Israel-Palestinian conflict and the U.S.’s

respective political positions are robustly and publicly debated by leading politicians,

academics, universities, non-profit organizations, businesses, and media organizations in the

United States and around the world.

Texas Passes Anti-Boycott, Divestment, and Sanctions Legislation

23. Because the prevailing political sentiment in the United States favors Israel,

many U.S. states, private organizations, and public officials view the Palestinian-led Boycott,

Divestment, and Sanctions movement as a threat to U.S.-Israel economic relations and Israel’s

sovereignty.

24. This political climate has, in recent years, prompted local and state legislatures

to consider more than a hundred bills and resolutions aimed at hindering the Boycott,

Divestment, and Sanctions movement. At least twenty-four states have enacted “anti-BDS”

legislation.

25. Texas is one state to have enacted measures opposed to the Boycott,

Divestment, and Sanctions movement. On May 2, 2017, Texas enacted House Bill 89,

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codified at Tex. Gov. Code § 2271.001 et. seq. The bill’s author, State Representative Phil

King, informed the legislature, “the intent of the bill, speaking a little more broadly, is to

prohibit someone trying to cause economic harm to the nation of Israel or to the Jews or

anyone within the nation of Israel by boycotting, by not doing business with them, by

punishing others who do business with them.”

26. The Anti-BDS Law was amended, effective May 17, 2019, by House Bill 793,

which excluded certain entities from the prohibitions of the Anti-BDS Law.

27. Texas law now prohibits all government entities from contracting with any

company that boycotts Israel.

28. Specifically, Tex. Gov. Code § 2271.002 et. seq. provides:

A. “A governmental entity may not enter into a contract with a company

for goods or services unless the contract contains a written verification
from the company that it:

i. does not boycott Israel; and

ii. will not boycott Israel during the term of the contract.”

29. The Anti-BDS Law defines “boycott Israel” to include, “refusing to deal with,

terminating business activities with, or otherwise taking any action that is intended to

penalize, inflict harm on, or limit commercial relations specifically with Israel, or with a

person or entity doing business in Israel or in an Israeli-controlled territory.” Tex. Gov. Code

§ 808.001 et. seq.

30. The Anti-BDS Law initially defined “company” to include, “a for-profit sole

proprietorship, organization, association, corporation, partnership, joint venture, limited

partnership, limited liability partnership, or any limited liability company, including a wholly

owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or

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business associations that exist to make a profit.” Tex. Gov. Code § 808.001(2). After House

Bill 793, the law now “does not include a sole proprietorship. Tex. Gov. Code § 2271.001(2).

31. To comply with this statutory provision, Texas agencies and public entities

including school districts have started including language in their boilerplate contracts which

bars boycotts of Israel.

A&R Engineering refuses to sign renewal contract

32. On October 13, 2021, the City of Houston sent A&R a renewal contract to

provide engineering services for the City.

33. A&R had been contracting with the City for approximately 17 years.

34. Section 2.19.1 of the renewal contract required A&R to certify that it “is not

currently engaging in, and agrees for the duration of this Agreement not to engage in, the

boycott of Israel as defined by Section 808.001 of the Texas Government Code.”

35. Under Section 4.1 of the renewal contract, the renewal contract was to last

three years with up to two additional one-year agreements.

36. On October 13, 2021, A&R refused to sign the contract. Russ Hassouna, the

Owner and Executive Vice President of A&R, wrote: “Israel is an occupier of my homeland

and it is an Apartheid State. It is my right and duty to boycott Israel and any products of

Israel. This policy is against my constitutional right and against International Law. I demand

that you take the paragraph about Israel off from the contract. I will send the contract

document to my Attorney to advice [sic] me on what legal actions to be pursued.”

37. Mike Pezeshki of the City of Houston responded on October 13, 2021, by

telling A&R: “I just talked to our attorney, Mr. Arnold Colunga at the City Legal Department,

and he advised me that the Section 2.21.1 [sic] ‘Anti-Boycott of Israel’ is state law and cannot

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be removed from your contract. Please let me know if you wish to withdraw A&R

Engineering from acquiring a CMT contract from the City by the Close of Business on

Wednesday, October 20, 2021.”

38. Mr. Hassouna, wrote back on October 13, 2021: “I declined to sign and I stated

the reasons.”

39. Mr. Hassouna boycotts Israel in his personal capacity.

40. A&R boycotts Israel in its capacity as a corporation. Although A&R’s boycott

has not materially affected any of its business decisions through the present, A&R would

refuse to buy an Israeli-sourced product were the opportunity to otherwise arise.

41. Moreover, even were A&R not boycotting Israel, it would refuse to certify that

it would not boycott Israel for the duration of the renewal contract because, by signing, A&R

would be compelled to speak in furtherance of a foreign government’s interests.

42. But for the renewal contract’s certification requirement, based on the Anti-BDS

Law, A&R is ready, willing, and able to enter into the contract and perform the agreed-upon

engineering services for the City.

CAUSE OF ACTION

Violation of
First and Fourteenth Amendments to the U.S Constitution
(42 U.S.C. § 1983)

43. Plaintiff incorporates all of the above paragraphs as though fully set forth

herein.

44. The First Amendment provides: “Congress shall make no law … abridging the

freedom of speech, or of the press.” U.S. CONST. Amend. I.

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45. The First Amendment binds the State of Texas pursuant to the incorporation

doctrine of the Fourteenth Amendment.

46. Political speech on issues of great national and international importance is

central to the purposes of the First Amendment. Speech and advocacy related to the Israel –

Palestine conflict is core political speech on a matter of public concern entitled to the highest

levels of constitutional protection.

47. Economic boycotts for the purposes of bringing about political change are

entrenched in American history, beginning with colonial boycotts on British tea. Later, the

Civil Rights Movement relied heavily on boycotts to combat racism and spur societal change.

The Supreme Court has recognized that non-violent boycotts intended to advance civil rights

constitute “form[s] of speech or conduct that [are] ordinarily entitled to protection under the

First and Fourteenth Amendments.” NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).

48. The First Amendment protects the rights of speakers to call for and participate

in economic boycotts as a means of amplifying their message. Joining voices together to

participate in and call for political boycotts is protected association under the First

Amendment.

49. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause each

constitute viewpoint discrimination because they only bar speech and expression against

Israel, and not speech or expression in favor of Israel or against Palestine.

50. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause each

constitute content-specific restrictions on speech because they single out boycotts of Israel for

disfavored treatment.

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51. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause each

constitute speaker-specific restrictions on speech because they single out government

contractors who advocate for Palestine and against Israel as specific speakers who warrant

disfavored treatment.

52. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause each

impose a prior restraint on speech, by requiring speakers to certify in advance that they do not

and will not engage in a boycott of Israel.

53. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause each

constitute impermissible State attempts to impose conditions on an independent contractor

on a basis that infringes constitutionally protected freedom of speech.

54. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause each

constitute impermissible State attempts to impose an ideological litmus test or compel speech

related to government contractors’ political beliefs, associations, and expressions.

55. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause are

each substantially overbroad.

56. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause are

each void for vagueness.

57. Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of Israel” clause operate

to chill the exercise of constitutionally protected speech and associations.

58. The Texas Attorney General and the City each lack a compelling or legitimate

governmental interest in the enforcement of Tex. Gov. Code § 2271.001 et. seq. and the “No

Boycott of Israel” clause.

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59. Enforcement of Tex. Gov. Code § 2271.001 et. seq. and the “No Boycott of

Israel” clause does not constitute the least-restrictive means of fulfilling any state interest.

60. Tex. Gov. Code § 2271.001 et. seq. is facially unconstitutional under the First

Amendment and cannot be enforced against anyone by the Texas Attorney General.

61. Tex. Gov. Code §2271.001 et. seq., as implemented through the “No Boycott of

Israel” clause in the renewal contract promulgated by the City, is unconstitutional facially and

as applied to Plaintiff.

62. The Western District of Texas has already found the Anti-BDS Law

unconstitutional in Amawi v. Pflugerville Independent School District, 373 F. Supp. 3d 717 (W.D.

Tex. 2019). Although the Fifth Circuit dissolved that case’s preliminary injunction upon the

enactment of House Bill 793, finding the case moot because the Anti-BDS Law as amended

excluded the Amawi plaintiffs, Amawi v. Paxton, 956 F.3d 816 (5th Cir. 2020), the Fifth Circuit’s

opinion did not alter or undermine Judge Pittman’s well-reasoned explanation as to why the

Anti-BDS Law is unconstitutional.

63. Unlike the plaintiffs in Amawi, the as-amended Anti-BDS Law applies to A&R,

the Plaintiff in this action.

64. Absent an injunction, Plaintiff will suffer irreparable harm because it will be

barred by state law and contract from engaging in protected First Amendment speech and

association on a matter of public concern.

65. If Defendants are not enjoined from enforcing Tex. Gov. Code §2271.001 et.

seq. and from including the “No Boycott of Israel” clause in state contracts, Plaintiff and all

advocates for Palestine will be effectively prohibited from entering into any agreement with

the State of Texas unless they give up their constitutionally-protected views.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests the Court enter the following relief:

A. Declare Tex. Gov. Code § 2271.001 et. seq. unconstitutional and unenforceable;

B. Issue judgment in Plaintiff ’s favor and against Defendants on all causes of

action alleged under 42 U.S.C. § 1983 and the First and Fourteenth

Amendments to the U.S. Constitution;

C. Grant Plaintiff a preliminary and permanent injunction striking the “No

Boycott of Israel” clause from any contract the City of Houston;

D. Order the City of Houston to offer Plaintiff a new contract without the “No

Boycott of Israel” clause, thereby permitting it to sign and resume providing

the City engineering services;

E. Temporarily Restrain the City of Houston from awarding a contract to perform

the engineering services described in the renewal contract to another

engineering services provider until this Court can determine the

constitutionality of the Anti-BDS Law;

F. Enter a preliminary and permanent injunction against Defendants’ inclusion

of boycott provisions under Tex. Gov. Code § 2271.001 et. seq. in any state

contract, and against Defendant Attorney General’s continuing enforcement of

Tex. Gov. Code § 2271.001 et. seq.;

G. Declare void any “No Boycott of Israel” clause pursuant to Tex. Gov. Code §

2271.001 et. seq. that now exists in any and all contracts between Texas public

entities and private companies or persons;

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H. Award Plaintiff damages against the City of Houston for all economic harm

caused by the City’s requirement of a “No Boycott of Israel” in the renewal

contract and Plaintiff ’s resultant inability to sign the renewal contract;

I. Award Plaintiff its reasonable costs and attorney’s fees pursuant to 42 U.S.C. §

1988; and,

J. Grant such other and further relief as the Court may deem to be just and proper.

Dated: October 29, 2021

Respectfully submitted,

JOHN T. FLOYD LAW FIRM

/s/ John T. Floyd

John T. Floyd (TX Bar No. 00790700)
[email protected]
Chris Choate (TX Bar No. 24045655)
[email protected]
4900 Woodway Dr., Ste. 725
Houston, TX 77056
Phone: (713) 224-0101
Fax: (713) 237-1511

CAIR LEGAL DEFENSE FUND

Lena F. Masri (D.C. Bar No. 1000019) α

[email protected]
Gadeir I. Abbas (VA Bar No. 81161) α *
[email protected]
Justin Sadowsky (D.C. Bar No. 977642) α
[email protected]
453 New Jersey Ave., SE
Washington, DC 20003
Phone: (202) 742-6420
Fax: (202) 488-0833

α SDTX admission application forthcoming

* Licensed in VA, not in D.C.

Practice limited to federal matters

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