Preview
Electronically Filed
10/21/2022 1:26 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
CAUSE NO. C-4049-22-A
CITY OF PENITAS and § IN THE DISTRICT COURT
RAMIRO LOYY A, in both his §
Official capacity as Mayor of the City §
Of Penitas and individual capacity §
§
vs. §
§
COUNTY OF HIDALGO, § 92 ND JUDICIAL DISTRICT
HIDALGO COUNTY ELECTIONS §
DEPARTMENT, HILDA A. §
SALINAS, INTERIM ELECTIONS §
ADMINISTRATOR AND §
EVERARDO VILLARREAL, §
in both his official capacity as §
HIDALGO COUNTY PRECINCT §
3 COUNTY COMMISSIONER §
And individual capacity § HIDALGO COUNTY, TEXAS
DEFENDANTS' ORIGINAL ANSWER AND PLEA TO THE JURISDICTION
NOW COME Defendants, County of Hidalgo, Texas, Hidalgo County Elections Department,
Hilda A. Salinas, Interim Elections Administrator and Everardo Villarreal in both his official
capacity as Hidalgo County Precinct 3 Commissioner and Individual capacity and files this
their Original Answer and Plea to the Jurisdiction and would show unto the court as follows:
I.
General Denial
1. Pursuant to Texas Rule of Civil Procedure 92, Defendants generally deny each and every
allegation and claim made by Plaintiffs in their Original Petition and Emergency Application for
Temporary Restraining Order and demands strict proof thereof.
Electronically Filed
10/21/2022 1:26 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
II.
Verified Pleas
2. Plaintiffs ' claims and causes of action are barred in whole or in part because there is a
defect of the parties plaintiff.
3. Plaintiffs ' claims and causes of action against Defendant Everardo Villarreal in his
individual capacity are barred in whole or in part because Defendant Everardo Villarreal is not
liable in his individual capacity as asserted by Plaintiffs.
III.
Affirmative Defenses
4. Plaintiffs ' claims and cause s of action are barred in whole or in part as a result of waiver.
Hidalgo County Texas specifically reque sted the use of polling locations within the city limits of
the City of Penitas and said pollin g location s were rejected. See correspondence attached hereto
as Exhibit 1 and adopted and incorporated herein by reference.
5. Plaintiffs ' claim s and causes of action are barred in whole or in part based upon quasi
estoppel and estoppel.
6. Alternatively, Plaintiffs' claims and causes of action are barred in whole or in part as a
result of illegality . The requests for relief that Plaintiffs have asserted would require Hidalgo
County to violate various provi sions of law. See Advisory 2022-25 issued by the Texas Secretary
of State attached hereto as Exh ibit 2 and adopted and incorporated herein by reference.
7. Plaintiffs' claims and causes of action are barred in whole or in part based upon sovereign
immunity , governmental immunity , absolute immunity , official immunity and qualified immunity.
Electronically Filed
10/21/2022 1:26 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
IV.
Plea to the Jurisdiction
8. This action should be dismissed for want of subject matter jurisdiction because (a)
Plaintiffs have no standing to assert their claims and causes of action and (b) Plaintiffs' claims are
moot.
9. Standing may by challenged through a plea to the jurisdiction. City of Dallas, v. K. Homan ,
2022 WL 969631. at *3 (Tex. App.- Dallas Mar. 31. 2022, no pet. h.). The issue of standing
focuses on whether a party has a sufficient relationship with the lawsuit so as to have a 'j usticiable
interest ' in its outcome. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005).
The general test for standing requires ( 1) that there be a real controversy between the parties, and
(2) that the controversy will actually be determined by the judicial declaration sought. Sneed v.
Webre, 465 S.W.3d 169, 180 (Tex. 2015). Further, a court has no jurisdiction to render an
advisory opinion on a controversy that is not yet ripe. Public Util. Comm'n v. Houston Lighting &
Power Co., 748 S.W.2d 439 (Tex.1987); Coalson v. City Council of Victoria, 610 S.W.2d 744,
74 7 (Tex.1980)(Texas Constitution precludes district courts from giving advisory opinions in
prematurely filed actions).
10. In the case at bar, the entire basis for Plaintiffs claims are predicated upon alleged injuries
to La Joya ISD ("LJISD") and Agua Special Utility District ("Ag ua SUD"). See Plaintiffs '
Original Petition on file with the Court. LJISD has three (3) school District Trustees on the ballot
for the November 8, 2022 election and Agua SUD has four (4) Directors on the ballot. However,
there are no races on the ballot for any of the City of Penitas positions in the November 8, 2022
election. As a result , Plaintiffs lack standing to assert any claims against Defend ants because they
are not aggrieved partie s. Plaintiffs' claims present no real controversy between the parties, and
Electronically Filed
10/21/2022 1:26 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
any such controversy will not actually be determined by the judicial declaration sought. Id. As a
resu lt, this court should dismiss this action for want of subject matter jurisdiction.
11. Further, the mootness doctrine prevents courts from rendering advisory opinions , which
are outside the jurisdiction conferred by article II, section 1 of the Texas Constitution. Valley
Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). A controversy must exist between
the parties at every stage of the legal proceeding , including the appeal. Bd. of Adjustment of City
of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex. 2002); McClure v. JPMorgan Chase Bank,
147 S.W.3d 648, 651 (Tex. App.-Fort Worth 2004, pet. denied) . An issue may become moot when
a party seeks a ruling on some matter that, when rendered , would not have any practical legal effect
on a then-existing controversy. In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex.
App.-Houston [14th Dist.] 2008, orig. proceeding) .
12. As it concerns election litigation , Texas case law holds that once the process of the election
begins, litigation concerning the election becomes moot. Salazar v. Gonza les, 931 S. W.2d 59, 60
(Tex. App.-Corpus Christi-Edinburg 1996, no writ).
13. For examp le, in Salazar v. Gonzales, this court held, "An election contest become s moot ,
and the issues no longer ju sticiable, when a final judgment adjudging the validity or invalidity of
a candidate's certificate of nomination is not entered in time for election officials to comp ly with
the statutory deadlines for preparing and conducting the general election, or when absentee
balloting has begun during the pendency of the appea l. Moore v. Barr , 718 S.W.2d 925 (Tex.
App.- Houston [14th Dist.] 1986, no writ) ; Price v. Dawson, 608 S.W.2d 339, 340 (Tex. Civ.
App.- Dallas 1980, no writ)" Id. An election contest is moot if it would , with certainty, interfere
with the printing of the official ballot and a contest also is moot if absentee balloting has begun
Electronically Filed
10/21/2022 1:26 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
during the pendency of the appeal. Price v. Dawson , 608 S.W.2d 339, 340 (Tex. Civ. App.-
Dallas 1980, no writ).
14. Although this action is not an election contest, this action is moot becau se absentee
balloting has begun and early voting starts on Monday, October 24, 2022. More importantl y,
Hidalgo County cannot comply with the applicable statutory and regulatory deadlines to place a
polling location at Plaintiffs requested locations in the City of Penitas because said deadlines have
long since passed. See Advisory 2022-25 Exhibit 2. Moreover, no final judgment in this action
can be obtained in time for election officials to comply with the statutory deadlines for preparing
and conducting the general election, or when absentee balloting has begun. Id. See Orders for
Election attached hereto as Exhibit 3 and adopted and incorporated herein by reference. Thus, this
action is moot and the comt should dismiss this action for want of jurisdiction.
WHEREFORE PREMISES CONSIDERED, Defendants pray that Plaintiffs take nothing
by this lawsuit and that the Court dismiss this action with prejudice and for all such further and
other relief to which Defendants may be justly entitled.
arlos scobar
ESCOBAR LAW FIRM, PLLC
State Bar No. 24025351
100 S. Bicentennial Blvd.
McAllen, Texas 78501
956- 631-3384 - Telephone
carlos@escobarlawfir m.com
OFFICE OF CRIMINAL DISTRICT ATTORN EY,
Ricardo Rodriguez, Jr.,
HIDALGO COUNTY, TEXAS
Isl Jos ephine Ramirez-Solis
Electronically Filed
10/21/2022 1:26 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
Josephine Ramirez-Solis
Assistant District Attorney
Texas Bar No. 24007894
josephine.ramir ez@da.co.hidalgo.tx.us
Victor M. Garza
Assistant District Attorney
Texas Bar No.24029568
victor.garza @da.co.hidalgo. tx. us
Leigh Ann Tognetti
Assistant District Attorney
Texas Bar No. 24083975
leigh.tognetti@da.co .hidalgo. tx. us
100 E. Cano, First Floor
Hidalgo County Courthouse Annex III
Edinburg, Texas 78539
Tel: (956) 292-7609
Fax: (956) 318-2301
ATTORNEYS FOR HIDALGO COUNTY
DEFENDANTS
VERIFICATION
My name is Carlos Escobar. My date of birth 9-20-72 and my address is 100 South
Bicentennial Blvd., McAllen, Texas 78501. I am authorized by Hidalgo County Texas and
Everardo Villarreal to make this verification. I have read the verified pleas contained in this
Original Answer and the facts stated therein are within my personal knowledge and are true and
correct.
Pursuant to Chapter 132 of the Texas Civil Practice
Preview
Electronically Filed 10/21/2022 1:26 PM Hidalgo County District Clerks Reviewed By: Valerie Garza CAUSE NO. C-4049-22-A CITY OF PENITAS and § IN THE DISTRICT COURT RAMIRO LOYY A, in both his § Official capacity as Mayor of the City § Of Penitas and individual capacity § § vs. § § COUNTY OF HIDALGO, § 92 ND JUDICIAL DISTRICT HIDALGO COUNTY ELECTIONS § DEPARTMENT, HILDA A. § SALINAS, INTERIM ELECTIONS § ADMINISTRATOR AND § EVERARDO VILLARREAL, § in both his official capacity as § HIDALGO COUNTY PRECINCT § 3 COUNTY COMMISSIONER § And individual capacity § HIDALGO COUNTY, TEXAS DEFENDANTS' ORIGINAL ANSWER AND PLEA TO THE JURISDICTION NOW COME Defendants, County of Hidalgo, Texas, Hidalgo County Elections Department, Hilda A. Salinas, Interim Elections Administrator and Everardo Villarreal in both his official capacity as Hidalgo County Precinct 3 Commissioner and Individual capacity and files this their Original Answer and Plea to the Jurisdiction and would show unto the court as follows: I. General Denial 1. Pursuant to Texas Rule of Civil Procedure 92, Defendants generally deny each and every allegation and claim made by Plaintiffs in their Original Petition and Emergency Application for Temporary Restraining Order and demands strict proof thereof. Electronically Filed 10/21/2022 1:26 PM Hidalgo County District Clerks Reviewed By: Valerie Garza II. Verified Pleas 2. Plaintiffs ' claims and causes of action are barred in whole or in part because there is a defect of the parties plaintiff. 3. Plaintiffs ' claims and causes of action against Defendant Everardo Villarreal in his individual capacity are barred in whole or in part because Defendant Everardo Villarreal is not liable in his individual capacity as asserted by Plaintiffs. III. Affirmative Defenses 4. Plaintiffs ' claims and cause s of action are barred in whole or in part as a result of waiver. Hidalgo County Texas specifically reque sted the use of polling locations within the city limits of the City of Penitas and said pollin g location s were rejected. See correspondence attached hereto as Exhibit 1 and adopted and incorporated herein by reference. 5. Plaintiffs ' claim s and causes of action are barred in whole or in part based upon quasi estoppel and estoppel. 6. Alternatively, Plaintiffs' claims and causes of action are barred in whole or in part as a result of illegality . The requests for relief that Plaintiffs have asserted would require Hidalgo County to violate various provi sions of law. See Advisory 2022-25 issued by the Texas Secretary of State attached hereto as Exh ibit 2 and adopted and incorporated herein by reference. 7. Plaintiffs' claims and causes of action are barred in whole or in part based upon sovereign immunity , governmental immunity , absolute immunity , official immunity and qualified immunity. Electronically Filed 10/21/2022 1:26 PM Hidalgo County District Clerks Reviewed By: Valerie Garza IV. Plea to the Jurisdiction 8. This action should be dismissed for want of subject matter jurisdiction because (a) Plaintiffs have no standing to assert their claims and causes of action and (b) Plaintiffs' claims are moot. 9. Standing may by challenged through a plea to the jurisdiction. City of Dallas, v. K. Homan , 2022 WL 969631. at *3 (Tex. App.- Dallas Mar. 31. 2022, no pet. h.). The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a 'j usticiable interest ' in its outcome. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). The general test for standing requires ( 1) that there be a real controversy between the parties, and (2) that the controversy will actually be determined by the judicial declaration sought. Sneed v. Webre, 465 S.W.3d 169, 180 (Tex. 2015). Further, a court has no jurisdiction to render an advisory opinion on a controversy that is not yet ripe. Public Util. Comm'n v. Houston Lighting & Power Co., 748 S.W.2d 439 (Tex.1987); Coalson v. City Council of Victoria, 610 S.W.2d 744, 74 7 (Tex.1980)(Texas Constitution precludes district courts from giving advisory opinions in prematurely filed actions). 10. In the case at bar, the entire basis for Plaintiffs claims are predicated upon alleged injuries to La Joya ISD ("LJISD") and Agua Special Utility District ("Ag ua SUD"). See Plaintiffs ' Original Petition on file with the Court. LJISD has three (3) school District Trustees on the ballot for the November 8, 2022 election and Agua SUD has four (4) Directors on the ballot. However, there are no races on the ballot for any of the City of Penitas positions in the November 8, 2022 election. As a result , Plaintiffs lack standing to assert any claims against Defend ants because they are not aggrieved partie s. Plaintiffs' claims present no real controversy between the parties, and Electronically Filed 10/21/2022 1:26 PM Hidalgo County District Clerks Reviewed By: Valerie Garza any such controversy will not actually be determined by the judicial declaration sought. Id. As a resu lt, this court should dismiss this action for want of subject matter jurisdiction. 11. Further, the mootness doctrine prevents courts from rendering advisory opinions , which are outside the jurisdiction conferred by article II, section 1 of the Texas Constitution. Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). A controversy must exist between the parties at every stage of the legal proceeding , including the appeal. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex. 2002); McClure v. JPMorgan Chase Bank, 147 S.W.3d 648, 651 (Tex. App.-Fort Worth 2004, pet. denied) . An issue may become moot when a party seeks a ruling on some matter that, when rendered , would not have any practical legal effect on a then-existing controversy. In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex. App.-Houston [14th Dist.] 2008, orig. proceeding) . 12. As it concerns election litigation , Texas case law holds that once the process of the election begins, litigation concerning the election becomes moot. Salazar v. Gonza les, 931 S. W.2d 59, 60 (Tex. App.-Corpus Christi-Edinburg 1996, no writ). 13. For examp le, in Salazar v. Gonzales, this court held, "An election contest become s moot , and the issues no longer ju sticiable, when a final judgment adjudging the validity or invalidity of a candidate's certificate of nomination is not entered in time for election officials to comp ly with the statutory deadlines for preparing and conducting the general election, or when absentee balloting has begun during the pendency of the appea l. Moore v. Barr , 718 S.W.2d 925 (Tex. App.- Houston [14th Dist.] 1986, no writ) ; Price v. Dawson, 608 S.W.2d 339, 340 (Tex. Civ. App.- Dallas 1980, no writ)" Id. An election contest is moot if it would , with certainty, interfere with the printing of the official ballot and a contest also is moot if absentee balloting has begun Electronically Filed 10/21/2022 1:26 PM Hidalgo County District Clerks Reviewed By: Valerie Garza during the pendency of the appeal. Price v. Dawson , 608 S.W.2d 339, 340 (Tex. Civ. App.- Dallas 1980, no writ). 14. Although this action is not an election contest, this action is moot becau se absentee balloting has begun and early voting starts on Monday, October 24, 2022. More importantl y, Hidalgo County cannot comply with the applicable statutory and regulatory deadlines to place a polling location at Plaintiffs requested locations in the City of Penitas because said deadlines have long since passed. See Advisory 2022-25 Exhibit 2. Moreover, no final judgment in this action can be obtained in time for election officials to comply with the statutory deadlines for preparing and conducting the general election, or when absentee balloting has begun. Id. See Orders for Election attached hereto as Exhibit 3 and adopted and incorporated herein by reference. Thus, this action is moot and the comt should dismiss this action for want of jurisdiction. WHEREFORE PREMISES CONSIDERED, Defendants pray that Plaintiffs take nothing by this lawsuit and that the Court dismiss this action with prejudice and for all such further and other relief to which Defendants may be justly entitled. arlos scobar ESCOBAR LAW FIRM, PLLC State Bar No. 24025351 100 S. Bicentennial Blvd. McAllen, Texas 78501 956- 631-3384 - Telephone carlos@escobarlawfir m.com OFFICE OF CRIMINAL DISTRICT ATTORN EY, Ricardo Rodriguez, Jr., HIDALGO COUNTY, TEXAS Isl Jos ephine Ramirez-Solis Electronically Filed 10/21/2022 1:26 PM Hidalgo County District Clerks Reviewed By: Valerie Garza Josephine Ramirez-Solis Assistant District Attorney Texas Bar No. 24007894 josephine.ramir ez@da.co.hidalgo.tx.us Victor M. Garza Assistant District Attorney Texas Bar No.24029568 victor.garza @da.co.hidalgo. tx. us Leigh Ann Tognetti Assistant District Attorney Texas Bar No. 24083975 leigh.tognetti@da.co .hidalgo. tx. us 100 E. Cano, First Floor Hidalgo County Courthouse Annex III Edinburg, Texas 78539 Tel: (956) 292-7609 Fax: (956) 318-2301 ATTORNEYS FOR HIDALGO COUNTY DEFENDANTS VERIFICATION My name is Carlos Escobar. My date of birth 9-20-72 and my address is 100 South Bicentennial Blvd., McAllen, Texas 78501. I am authorized by Hidalgo County Texas and Everardo Villarreal to make this verification. I have read the verified pleas contained in this Original Answer and the facts stated therein are within my personal knowledge and are true and correct. Pursuant to Chapter 132 of the Texas Civil Practice