Preview
FILED
4/13/2023 9:56 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rosa Delacerda DEPUTY
CAUSE NO. DC-23-03562
JRMAR “JJ” JEFFERSON, § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 14th JUDICIAL DISTRICT
§
CITY OF DALLAS et a1. §
Defendants. § DALLAS COUNTY, TEXAS
DEFENDANTS’ MOTION TO DISMISS AND ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
Come now Defendants City of Dallas (the “City”) and Bilierae Johnson, in her official
capacity as City Secretary for the City of Dallas (the “Secretary,” and collectively with the City,
“Defendants”), and file their motion to dismiss and original answer.
I. Motion to Dismiss (Plea to the Jurisdiction)
l. Defendants file this plea to the jurisdiction as to the claims brought by Plaintiff in
the above-styled and numbered cause. Defendants request that this Court dismiss Plaintiff’ s claims
in their entirety for want of subject-matter jurisdiction. In support of their plea, Defendants would
show that the Court lacks jurisdiction for two reasons.
A. This suit for injunctive relief under the Election Code is moot because the deadline to
begin absentee voting has passed.
2. First, this Court lacks jurisdiction because Plaintiff’s claims for injunctive relief are
moot because the statutory deadline to begin absentee voting passed on March 22, 2023, and the
election is now underway. Tex. Elec. Code § 86.004(b) (deadline for mailing overseas ballots is
45 days before election day); see also Exs. 1-3 (affidavits from election administrators for Denton,
Collin, and Dallas Counties reflecting absentee ballots have been mailed). In other words, Whether
Mr. Jefferson’s application was valid or invalid is now a moot point, and the case is no longer
justiciable through any procedural vehicle. See Skelton v. Yates, 119 S.W.2d 91, 92 (Tex. 1938)
CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 1
(orig. proceeding) (“Under the various statutes of this state it is evident that this case is moot.
Under the law absentee balloting has begun. The election therefore is already in progress, and no
order which this court might enter could be effective at this late date to govern such election.”
(citation omitted));1n re Crenshaw, No. 05-17-00330-CV, 2017 WL 1292013, at *1 (Tex. App.—
Dallas Apr. 7, 2017, no pet.) (mem. op.) (“Once absentee balloting begins, issues regarding the
validity or invalidity of a candidate’s application become moot and are no longer justiciable
because any judgment by the reviewing court on those issues would not be rendered in time for
election officials to print absentee ballots and make the ballots available to voters by the statutory
deadline”); In re Meyer, No. 05-16-00063-CV, 2016 WL 375033, at *4 (Tex. App—Dallas Feb.
1, 2016, no pet.) (“The constraints on our action are detennined by the election schedule. Based
on separation of powers concerns, no order by this Court may interfere with the orderly process of
the election. For that reason, in the past, both this Court and other courts have concluded that the
beginning of early voting by mail is fatal to the ability to provide relief with respect to all types of
voting in the same election.” (citations omitted)); Moore v. Barr, 718 S.W.2d 925, 926 (Tex.
App—Houston [14th Dist.] 1986, no pet.) (noting absentee balloting had begun and stating that
“[i]t has long been the law that an election contest becomes moot, and the issues no longer
justiciable, 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 comply with the statutory deadlines
for preparing for and conducting the general election”).
3. Plaintiff’s redundant claims for declaratory relief are also moot. In his second
amended petition, filed on March 29, 2023, and in his live, third amended petition, filed on March
30, 2023, Plaintiff first sought and continues to seek a declaratory judgment that the Secretary
failed to perform certain ministerial acts when she refused to place Plaintiff on the ballot for mayor
CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 2
of Dallas as allegedly required by the Election Code, along with attorney fees and costs underCivil
Practice and Remedies Code section 37.009. Because the case was already moot when those
petitions were filed, however, the requests for declaratory relief and fees and costs are also moot.
4. Even though the deadline to send the absentee ballots had not yet passed when this
case commenced, the claim for injunctive relief was already moot because there was not sufficient
time to finally dispose of the case on its merits before the statutory deadline to being absentee
voting. See Polk v. Davidson, 196 S.W.2d 632, 634 (Tex. 1946) (“[W]hen the time comes that the
issues cannot be heard and a final judgment entered adjudging the validity or invalidity of the
nominee’s certificate so that absentee ballots can be printed and available to voters as and when
required by statute, the contest is moot and must be dismissed”) (citing Sterling v. Ferguson, 53
S.W.2d 753, 761 (Tex. 1932)); see also Smith v. Crawford, 747 S.W.2d 938, 940 (Tex. App.—
Dallas 1988, no writ) (same).
5. “In the context of an election dispute, interlocutory injunctive relief is not
‘appropriate injunctive relief’ permitted under section 273.081 if it is ordered at a time when the
parties cannot obtain a final decision in time for election officials to comply with the final order
or to permit meaningful appellate review.” In re Jones, Nos. 05-18-00065-CV, 05-18-00067-CV,
05-18-00068—CV, 2018 WL 549531, at *3 (Tex. App—Dallas Jan. 24, 2018, orig. proceeding)
(mem. op. per curiam). Moreover, granting temporary relief before a case becomes moot when
there is not enough time to reach final judgment or permit meaningful appeal “would be to finally
determine rights without a trial.” Id. (“[A] trial court should not grant a temporary restraining order
or temporary injunction when the effect of doing so would be to finally detennine rights without
a trial.” (internal citations omitted)). Simply put, even at the time of filing, the case was moot
CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 3
because there was not sufficient time “to practically permit continuing judicial scrutiny (including
any attendant appellate review).” Id.
6. Here, even if Plaintiff had diligently pursued his claims for injunctive and
declaratory relief and attorney fees after filing this lawsuit on March 16, 2023, there would not
have been sufficient time to hold a final trial on the merits and allow for expedited appellate review
in advance of the statutory deadline to send the overseas absentee ballots on March 22, 2023.
Regardless, however, that deadline has now passed, and this case is no longer justiciable and
should be dismissed as moot.
B. Plaintiff does not and cannot plead a valid claim within the waivers in the Election
Code and the Uniform Declaratory Judgments Act or the scope of the ultra vires
exception to immunity.
7. In addition, the City, as a home-rule municipality, is a governmental unit protected
by the doctrine of governmental immunity. See MJR ’s Fare ofDallas, Inc. v. City ofDallas, 792
S.W.2d 569, 573 (Tex. App—Dallas 1990, writ denied). Governmental immunity also applies to
claims against city officials and employees, and unless an official or employee has acted ultra
vires, governmental immunity applies equally to claims against city officials and employees in
their official capacities as to claims against a city itself. See City of El Paso v. Heinrich, 284
S.W.3d 366, 370, 380 (Tex. 2009). As a threshold matter, a plaintiff suing a city or its officials or
employees must affirmatively demonstrate that the state legislature consented to the lawsuit, as
“sovereign [or governmental] immunity deprives a trial court of subject matter jurisdiction for
lawsuits in which the state or certain governmental units have been sued unless the state consents
to suit.” Tex. Dep ’t 0f Parks & Wildlife v. Mranda, 133 S.W.3d 217, 224 (Tex. 2004). In addition,
to invoke the court’s jurisdiction, the plaintiff must plead a valid claim. Kaufinan County v. Combs,
393 S.W.3d 336, 345 (Tex. App—Dallas 2012, pet. denied); City ofDallas v. Saucedo-Falls, 268
S.W.3d 653, 657-58 (Tex. App—Dallas 2008, pet. denied).
CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 4
8. Here, no valid claim has been pled under a waiver of Defendants’ governmental
immunity from Plaintiff’s Election Code claims for injunctive relief. Election Code section
273.081 provides: “A person who is being harmed or is in danger of being harmed by a violation
or threatened Violation of this code is entitled to appropriate injunctive relief to prevent the
Violation from continuing or occurring.” Yet nowhere does this section or any other part of the
Election Code waive sovereign or governmental immunity for the authorized injunctive relief.
Defendants retain governmental immunity from suit unless Plaintiff has pleaded a Viable claim to
remedy Violations of the Texas Constitution,Andrade v. NAACP ofAustin, 345 S.W.3d 1, 11 (Tex.
2011), and Plaintiff has pleaded no such claim.
9. In addition, Plaintiff’s request for “injunctive relief against Dallas and the Secretary
to change the date of the election for mayor” (3d Am. Pet. at 8) does not state a valid ultra vires
claim, because “[a]n injunction that delays [an] election would be improper,” Blum v. Lam'er, 997
S.W.2d 259, 263 (Tex. 1999). Furthermore, as to the other request for injunctive relief “to ensure
that Jefferson’s name appears on the ballot for mayor of Dallas in the upcoming election,” that
request does not state a valid ultra vires claim because it is not a request for prospective relief. See,
e.g., Heinrich, 284 S.W.3d at 376 (Tex. 2009) (in ultra vires claim, claimant may only obtain
prospective injunctive relief); Combs, 410 S.W.3d at 537 (“[I]njunctive relief is not available to
prevent commission of wrongs not imminently threatened or to require general compliance with
the law.”). As set out above, the absentee ballots had already been mailed and the election was
already underway when the Secretary and the ultra vires claim against her were added to this
litigation. At that point, a request for Jefferson’s name to be added to ballots already printed and
mailed for an election that was already underway was not a request for prospective relief and,
therefore, not a valid ultra vires claim.
CITY’S MOTION TO DISMISS AND ORIGlNAL ANSWER Page 5
10. Furthetmore, Plaintiff’s requests for declaratory relief and attorney fees against the
City under the Uniform Declaratory Judgments Act (“UDJA”) (3d Am. Pet. at 8, 1 1) do not invoke
a waiver of immunity because Plaintiff does not challenge the validity of an ordinance or a
franchise and the UDJA waives a municipality’s immunity only for such challenges. See Tex. Civ.
Prac. & Rem. Code§ 37.006(b); Cernosek Enters, Inc. v. City ofMont Belvieu, 338 S.W.3d 655,
663 (Tex. App—Houston [1st Dist.] 2011, no pet.) (holding immunity was not waived under the
UDJA, because “no one challenges the validity of Mont Belvieu’s ordinances, but rather the City’s
actions under the ordinances”) (citing Heinrich, 284 S.W.3d at 373 n.6) (noting the UDJA waives
immunity from “claims challenging the validity of ordinances or statutes” but not from claims
challenging governmental entities’ actions under them».
11. For these reasons, Plaintiff’s claims, in whole or alternatively in part, are barred by
immunity from suit and should be dismissed for want of subject-matter jurisdiction.
II. Answer
A. General Denial
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants deny each and
every, all and singular, the material allegations contained in Plaintist Third Amended Petition
and demand strict proof thereof by a preponderance of all the credible evidence.
B. Affirmative Defenses
1. In the alternative, and to the extent further answer is necessary, Plaintiff’s claims
are barred by Defendants’ governmental immunity from liability.
2. In the alternative, and to the extent further answer is necessary, Plaintiff’s claims
are moot because the statutory deadline to send absentee ballots for the May 6, 2023 joint election
has passed and the election is underway.
CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 6
3. In the alternative, and to the extent further answer is necessary, Defendants assert
that to the extent that Plaintiff seeks to recover damages, interest, and/or attorney’s fees, such relief
is not authorized by law, statute, or contract and are barred by immunity from liability.
4. In the alternative, and to the extent further answer is necessary, Plaintiff’s claims
are barred by laches.
III. Prayer
WHEREFORE, Defendants City of Dallas and Bilierae Johnson, in her official capacity
as City Secretary of the City of Dallas, request that their plea to the jurisdiction be sustained, in
whole or in part; that Plaintiff take nothing by this suit; and for such other and furtherrelief, general
or special, at law or in equity, as to which they may be justly entitled.
Respectfully submitted,
CITY ATTORNEY OF THE CITY OF DALLAS
Tammy L. Palomino
Interim City Attorney
/s/ Kathleen M. F ones
Kathleen M. Fones
Assistant City Attorney
Texas Bar No. 2405061 1
kathleen.fones@dallas.gov
Stacy Jordan Rodriguez
Assistant City Attorney
Texas Bar No. 11016750
stacy.rodriguez@dallas. gov
7DN Dallas City Hall
1500 Marilla Street
Dallas, Texas 75201
Telephone - (214) 670-3519
Telecopier - (214) 670-0622
ATTORNEYS FOR DEFENDANTS CITY OF
DALLAS AND BILIERAE JOHNSON
CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 7
CERTIFICATE OF SERVICE
I hereby certify that on April 13, 2023, a true and correct copy of the above and foregoing
was served via electronic service to the following:
Jrmar “JJ” Jefferson
3700 Reese Drive
Dallas, Texas 75210
jrmarjefferson@gmail.com
/s/ Kathleen M F ones
Kathleen M. Fones
CITY’S MOTION TO DISMISS AND ORlGlNAL ANSWER Page 8
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Lilia Villegas on behalf of Kathleen Fones
Bar No. 24050611
lilia.villegas@dallas.gov
Envelope ID: 74602509
Filing Code Description: Motion - Dismiss
Filing Description:
Status as of 4/13/2023 12:44 PM CST
Associated Case Party: JRMARJJEFFERSON
Name BarNumber Email TimestampSubmitted Status
Paul Davis paul@fireduptxlawyer.com 4/13/2023 9:56:53 AM SENT
Jrmar Jefferson jrmarjefferson@gmail.com 4/13/2023 9:56:53 AM SENT
Associated Case Party: CITY OF DALLAS
Name BarNumber Email TimestampSubmitted Status
Lilia Villegas |i|ia.villegas@dallas.gov 4/13/2023 9:56:53 AM SENT
Lori Plaster lori.plaster@dallas.gov 4/13/2023 9:56:53 AM SENT
Stacy Rodriguez stacy.rodriguez@dallas.gov 4/13/2023 9:56:53 AM SENT
Associated Case Party: BILIERAE JOHNSON
Name BarNumber Email TimestampSubmitted Status
Andrew Spaniol andrew.spaniol@dallas.gov 4/13/2023 9:56:53 AM SENT
Kathleen Fones kathleen.fones@dallas.gov 4/13/2023 9:56:53 AM SENT
Preview
FILED 4/13/2023 9:56 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Rosa Delacerda DEPUTY CAUSE NO. DC-23-03562 JRMAR “JJ” JEFFERSON, § IN THE DISTRICT COURT Plaintiff, § § V. § 14th JUDICIAL DISTRICT § CITY OF DALLAS et a1. § Defendants. § DALLAS COUNTY, TEXAS DEFENDANTS’ MOTION TO DISMISS AND ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: Come now Defendants City of Dallas (the “City”) and Bilierae Johnson, in her official capacity as City Secretary for the City of Dallas (the “Secretary,” and collectively with the City, “Defendants”), and file their motion to dismiss and original answer. I. Motion to Dismiss (Plea to the Jurisdiction) l. Defendants file this plea to the jurisdiction as to the claims brought by Plaintiff in the above-styled and numbered cause. Defendants request that this Court dismiss Plaintiff’ s claims in their entirety for want of subject-matter jurisdiction. In support of their plea, Defendants would show that the Court lacks jurisdiction for two reasons. A. This suit for injunctive relief under the Election Code is moot because the deadline to begin absentee voting has passed. 2. First, this Court lacks jurisdiction because Plaintiff’s claims for injunctive relief are moot because the statutory deadline to begin absentee voting passed on March 22, 2023, and the election is now underway. Tex. Elec. Code § 86.004(b) (deadline for mailing overseas ballots is 45 days before election day); see also Exs. 1-3 (affidavits from election administrators for Denton, Collin, and Dallas Counties reflecting absentee ballots have been mailed). In other words, Whether Mr. Jefferson’s application was valid or invalid is now a moot point, and the case is no longer justiciable through any procedural vehicle. See Skelton v. Yates, 119 S.W.2d 91, 92 (Tex. 1938) CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 1 (orig. proceeding) (“Under the various statutes of this state it is evident that this case is moot. Under the law absentee balloting has begun. The election therefore is already in progress, and no order which this court might enter could be effective at this late date to govern such election.” (citation omitted));1n re Crenshaw, No. 05-17-00330-CV, 2017 WL 1292013, at *1 (Tex. App.— Dallas Apr. 7, 2017, no pet.) (mem. op.) (“Once absentee balloting begins, issues regarding the validity or invalidity of a candidate’s application become moot and are no longer justiciable because any judgment by the reviewing court on those issues would not be rendered in time for election officials to print absentee ballots and make the ballots available to voters by the statutory deadline”); In re Meyer, No. 05-16-00063-CV, 2016 WL 375033, at *4 (Tex. App—Dallas Feb. 1, 2016, no pet.) (“The constraints on our action are detennined by the election schedule. Based on separation of powers concerns, no order by this Court may interfere with the orderly process of the election. For that reason, in the past, both this Court and other courts have concluded that the beginning of early voting by mail is fatal to the ability to provide relief with respect to all types of voting in the same election.” (citations omitted)); Moore v. Barr, 718 S.W.2d 925, 926 (Tex. App—Houston [14th Dist.] 1986, no pet.) (noting absentee balloting had begun and stating that “[i]t has long been the law that an election contest becomes moot, and the issues no longer justiciable, 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 comply with the statutory deadlines for preparing for and conducting the general election”). 3. Plaintiff’s redundant claims for declaratory relief are also moot. In his second amended petition, filed on March 29, 2023, and in his live, third amended petition, filed on March 30, 2023, Plaintiff first sought and continues to seek a declaratory judgment that the Secretary failed to perform certain ministerial acts when she refused to place Plaintiff on the ballot for mayor CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 2 of Dallas as allegedly required by the Election Code, along with attorney fees and costs underCivil Practice and Remedies Code section 37.009. Because the case was already moot when those petitions were filed, however, the requests for declaratory relief and fees and costs are also moot. 4. Even though the deadline to send the absentee ballots had not yet passed when this case commenced, the claim for injunctive relief was already moot because there was not sufficient time to finally dispose of the case on its merits before the statutory deadline to being absentee voting. See Polk v. Davidson, 196 S.W.2d 632, 634 (Tex. 1946) (“[W]hen the time comes that the issues cannot be heard and a final judgment entered adjudging the validity or invalidity of the nominee’s certificate so that absentee ballots can be printed and available to voters as and when required by statute, the contest is moot and must be dismissed”) (citing Sterling v. Ferguson, 53 S.W.2d 753, 761 (Tex. 1932)); see also Smith v. Crawford, 747 S.W.2d 938, 940 (Tex. App.— Dallas 1988, no writ) (same). 5. “In the context of an election dispute, interlocutory injunctive relief is not ‘appropriate injunctive relief’ permitted under section 273.081 if it is ordered at a time when the parties cannot obtain a final decision in time for election officials to comply with the final order or to permit meaningful appellate review.” In re Jones, Nos. 05-18-00065-CV, 05-18-00067-CV, 05-18-00068—CV, 2018 WL 549531, at *3 (Tex. App—Dallas Jan. 24, 2018, orig. proceeding) (mem. op. per curiam). Moreover, granting temporary relief before a case becomes moot when there is not enough time to reach final judgment or permit meaningful appeal “would be to finally determine rights without a trial.” Id. (“[A] trial court should not grant a temporary restraining order or temporary injunction when the effect of doing so would be to finally detennine rights without a trial.” (internal citations omitted)). Simply put, even at the time of filing, the case was moot CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 3 because there was not sufficient time “to practically permit continuing judicial scrutiny (including any attendant appellate review).” Id. 6. Here, even if Plaintiff had diligently pursued his claims for injunctive and declaratory relief and attorney fees after filing this lawsuit on March 16, 2023, there would not have been sufficient time to hold a final trial on the merits and allow for expedited appellate review in advance of the statutory deadline to send the overseas absentee ballots on March 22, 2023. Regardless, however, that deadline has now passed, and this case is no longer justiciable and should be dismissed as moot. B. Plaintiff does not and cannot plead a valid claim within the waivers in the Election Code and the Uniform Declaratory Judgments Act or the scope of the ultra vires exception to immunity. 7. In addition, the City, as a home-rule municipality, is a governmental unit protected by the doctrine of governmental immunity. See MJR ’s Fare ofDallas, Inc. v. City ofDallas, 792 S.W.2d 569, 573 (Tex. App—Dallas 1990, writ denied). Governmental immunity also applies to claims against city officials and employees, and unless an official or employee has acted ultra vires, governmental immunity applies equally to claims against city officials and employees in their official capacities as to claims against a city itself. See City of El Paso v. Heinrich, 284 S.W.3d 366, 370, 380 (Tex. 2009). As a threshold matter, a plaintiff suing a city or its officials or employees must affirmatively demonstrate that the state legislature consented to the lawsuit, as “sovereign [or governmental] immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit.” Tex. Dep ’t 0f Parks & Wildlife v. Mranda, 133 S.W.3d 217, 224 (Tex. 2004). In addition, to invoke the court’s jurisdiction, the plaintiff must plead a valid claim. Kaufinan County v. Combs, 393 S.W.3d 336, 345 (Tex. App—Dallas 2012, pet. denied); City ofDallas v. Saucedo-Falls, 268 S.W.3d 653, 657-58 (Tex. App—Dallas 2008, pet. denied). CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 4 8. Here, no valid claim has been pled under a waiver of Defendants’ governmental immunity from Plaintiff’s Election Code claims for injunctive relief. Election Code section 273.081 provides: “A person who is being harmed or is in danger of being harmed by a violation or threatened Violation of this code is entitled to appropriate injunctive relief to prevent the Violation from continuing or occurring.” Yet nowhere does this section or any other part of the Election Code waive sovereign or governmental immunity for the authorized injunctive relief. Defendants retain governmental immunity from suit unless Plaintiff has pleaded a Viable claim to remedy Violations of the Texas Constitution,Andrade v. NAACP ofAustin, 345 S.W.3d 1, 11 (Tex. 2011), and Plaintiff has pleaded no such claim. 9. In addition, Plaintiff’s request for “injunctive relief against Dallas and the Secretary to change the date of the election for mayor” (3d Am. Pet. at 8) does not state a valid ultra vires claim, because “[a]n injunction that delays [an] election would be improper,” Blum v. Lam'er, 997 S.W.2d 259, 263 (Tex. 1999). Furthermore, as to the other request for injunctive relief “to ensure that Jefferson’s name appears on the ballot for mayor of Dallas in the upcoming election,” that request does not state a valid ultra vires claim because it is not a request for prospective relief. See, e.g., Heinrich, 284 S.W.3d at 376 (Tex. 2009) (in ultra vires claim, claimant may only obtain prospective injunctive relief); Combs, 410 S.W.3d at 537 (“[I]njunctive relief is not available to prevent commission of wrongs not imminently threatened or to require general compliance with the law.”). As set out above, the absentee ballots had already been mailed and the election was already underway when the Secretary and the ultra vires claim against her were added to this litigation. At that point, a request for Jefferson’s name to be added to ballots already printed and mailed for an election that was already underway was not a request for prospective relief and, therefore, not a valid ultra vires claim. CITY’S MOTION TO DISMISS AND ORIGlNAL ANSWER Page 5 10. Furthetmore, Plaintiff’s requests for declaratory relief and attorney fees against the City under the Uniform Declaratory Judgments Act (“UDJA”) (3d Am. Pet. at 8, 1 1) do not invoke a waiver of immunity because Plaintiff does not challenge the validity of an ordinance or a franchise and the UDJA waives a municipality’s immunity only for such challenges. See Tex. Civ. Prac. & Rem. Code§ 37.006(b); Cernosek Enters, Inc. v. City ofMont Belvieu, 338 S.W.3d 655, 663 (Tex. App—Houston [1st Dist.] 2011, no pet.) (holding immunity was not waived under the UDJA, because “no one challenges the validity of Mont Belvieu’s ordinances, but rather the City’s actions under the ordinances”) (citing Heinrich, 284 S.W.3d at 373 n.6) (noting the UDJA waives immunity from “claims challenging the validity of ordinances or statutes” but not from claims challenging governmental entities’ actions under them». 11. For these reasons, Plaintiff’s claims, in whole or alternatively in part, are barred by immunity from suit and should be dismissed for want of subject-matter jurisdiction. II. Answer A. General Denial Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants deny each and every, all and singular, the material allegations contained in Plaintist Third Amended Petition and demand strict proof thereof by a preponderance of all the credible evidence. B. Affirmative Defenses 1. In the alternative, and to the extent further answer is necessary, Plaintiff’s claims are barred by Defendants’ governmental immunity from liability. 2. In the alternative, and to the extent further answer is necessary, Plaintiff’s claims are moot because the statutory deadline to send absentee ballots for the May 6, 2023 joint election has passed and the election is underway. CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 6 3. In the alternative, and to the extent further answer is necessary, Defendants assert that to the extent that Plaintiff seeks to recover damages, interest, and/or attorney’s fees, such relief is not authorized by law, statute, or contract and are barred by immunity from liability. 4. In the alternative, and to the extent further answer is necessary, Plaintiff’s claims are barred by laches. III. Prayer WHEREFORE, Defendants City of Dallas and Bilierae Johnson, in her official capacity as City Secretary of the City of Dallas, request that their plea to the jurisdiction be sustained, in whole or in part; that Plaintiff take nothing by this suit; and for such other and furtherrelief, general or special, at law or in equity, as to which they may be justly entitled. Respectfully submitted, CITY ATTORNEY OF THE CITY OF DALLAS Tammy L. Palomino Interim City Attorney /s/ Kathleen M. F ones Kathleen M. Fones Assistant City Attorney Texas Bar No. 2405061 1 kathleen.fones@dallas.gov Stacy Jordan Rodriguez Assistant City Attorney Texas Bar No. 11016750 stacy.rodriguez@dallas. gov 7DN Dallas City Hall 1500 Marilla Street Dallas, Texas 75201 Telephone - (214) 670-3519 Telecopier - (214) 670-0622 ATTORNEYS FOR DEFENDANTS CITY OF DALLAS AND BILIERAE JOHNSON CITY’S MOTION TO DISMISS AND ORIGINAL ANSWER Page 7 CERTIFICATE OF SERVICE I hereby certify that on April 13, 2023, a true and correct copy of the above and foregoing was served via electronic service to the following: Jrmar “JJ” Jefferson 3700 Reese Drive Dallas, Texas 75210 jrmarjefferson@gmail.com /s/ Kathleen M F ones Kathleen M. Fones CITY’S MOTION TO DISMISS AND ORlGlNAL ANSWER Page 8 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Lilia Villegas on behalf of Kathleen Fones Bar No. 24050611 lilia.villegas@dallas.gov Envelope ID: 74602509 Filing Code Description: Motion - Dismiss Filing Description: Status as of 4/13/2023 12:44 PM CST Associated Case Party: JRMARJJEFFERSON Name BarNumber Email TimestampSubmitted Status Paul Davis paul@fireduptxlawyer.com 4/13/2023 9:56:53 AM SENT Jrmar Jefferson jrmarjefferson@gmail.com 4/13/2023 9:56:53 AM SENT Associated Case Party: CITY OF DALLAS Name BarNumber Email TimestampSubmitted Status Lilia Villegas |i|ia.villegas@dallas.gov 4/13/2023 9:56:53 AM SENT Lori Plaster lori.plaster@dallas.gov 4/13/2023 9:56:53 AM SENT Stacy Rodriguez stacy.rodriguez@dallas.gov 4/13/2023 9:56:53 AM SENT Associated Case Party: BILIERAE JOHNSON Name BarNumber Email TimestampSubmitted Status Andrew Spaniol andrew.spaniol@dallas.gov 4/13/2023 9:56:53 AM SENT Kathleen Fones kathleen.fones@dallas.gov 4/13/2023 9:56:53 AM SENT