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CAUSE NO. 23-DCV-304053
DENETTA R. WILLIAMS, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § FORT BEND COUNTY, TEXAS
§
SONYA JONES, §
§ 400 JUDICIAL DISTRICT
DEFENDANT, JOHN OLDHAM’S, PLEA TO THE JURISDICTION
FIRMATIVE DEFENSES.
AND SPECIAL EXCEPTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, John Oldham, in his official capacity as Elections Administrator of Fort
Bend County, Texas, Defendant in the above-numbered and -referenced action, and files this his
Plea to the Jurisdiction and Alternative Answer, Affirmative Defenses, and Special Exceptions,
and would respectfully show unto the Court as follows:
FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 2020, at the onset of the COVID-19 pandemic, Governor Abbott
authorized political subdivisions to postpone their May 2, 2020, elections to the November 3, 2020,
See The Governor of the State of Tex., Proclamation (Mar. 18,
2020), https://bit.ly/30Zwgst. The proclamation “allow[ed] political subdivisions that would
otherwise hold elections on May 2, 2020, to move their general and special elections for 2020
only to the next uniform election date, occurring on November 3, 2020, without otherwise
adjusting the term of office... . » . (emphasis added). On that same day, the Secretary of
State issued Election Advisory No. 2020-12. Tex. Sec’y of State, Election Advisory No.
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2020-12 (Mar. 18, 2020), https://bit.ly/3 LoISzE. Election Advisory 2020-12 interpreted the
proclamation. Understandably, political subdivisions across the state asked how the Governor’s
proclamation would affect the term lengths for newly-elected officials. The Secretary of
State’s Office responded as follows: “Your newly elected office holders in November will
have a shorter term. Their next election will return back to the May date.” See Email from
Christina Worrell Adkins, Legal Director of the Elections Division for the Office of the
Secretary of State, to Texas Political Subdivisions (Mar. 19, 2020)) at 1, attached as Exhibit
Williams applied for a trustee position on the Fort Bend Independent School District’s
(FBISD) Board. The term was originally intended to run from May 2020 to May 2023. See Fort
Bend Indep. Sch. Dist., Application of Denetta Williams for a Place on the May 2, 2020, General
Election Ballot (Feb. 14, 2020),https://bit.ly/3HsZsOL. However, pursuant to the proclamation,
the position’s term was effectively shortened. The Governor’s proclamation was not self-
executing. The Governor of the State of Tex., supra (stating that it would “ political
(“In
subdivisions” to move the election date) (emphasis added); see also Tex. Sec’y of State,
order to utilize this move, the governing body of the political subdivisions holding the elections
the postponement of their election to the November 3, 2020, uniform election
date.”)(emphasis in original). In accordance with the Governor’s March 18, 2020, proclamation,
FBISD amended its election order and postponed the May 2, 2020, election to November 3, 2020.
May 2020 Election Amendment Order attached as Exhibit B. Williams was elected to the
position .It is undisputed that Williams was sworn in as a trustee and served on the FBISD’s Board
from November 2020 to May 2023. Consistent with the law, FBISD called the subsequent election
for Williams’ then-held position number in January 2023.
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In response, Williams challenged the order under which she was elected as void and challenged
FBISD’s order calling the May 2023 election. Original Petition and Application for Temporary
Restraining Order, Temporary Injunction, and Permanent Injunction, generally,
Williams v. Fort Bend I.S.D. Board of Trustees , No. 23-DCV-303549 (434th Dist. Ct.,
Fort Bend County, Tex. April 21, 2023), attached as Exhibit C. After FBISD filed a Plea
to the Jurisdiction, a hearing was held and the court granted FBISD’s Plea, dismissing
Williams’ claims with prejudice See Order Dismissing with Prejudice Plaintiff's claims,
generally, Williams v. Fort Bend I.S.D. Board of Trustees , No. 23-DCV-303549 (434th
Dist. Ct., Fort Bend County, Tex. May 1, 2023), attached as Exhibit D. The May 2023 election
has since concluded. Ms. Sonya Jones was announced the winner on May 6, 2023. Williams’
Third Amended Petition (Petition or Pet.) at 2. She replaced Williams as a Trustee. Williams
now attempts to contest the May 2023 election results by filing her Third Amended Petition for
the same reasons she attempted to stop the election from occurring in the first place. Williams
names John Oldham in his Official Capacity as Fort Bend County Elections Administrator as a
party defendant for the first time in her Thir September 5, 2023. And,
in doing this, she completely disregards the fact that her claims that the election was illegal have
already been dismissed with prejudice and as such her claims are barred by the doctrine of
collateral estoppel/ issue preclusion. Williams does not state any valid claim of relief against
Defendant Oldham, does not state facts which support a valid waiver of sovereign immunity nor
is he a proper party to this litigation. Accordingly, this Court should grant the Oldham’s Plea to
the Jurisdiction.
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PLEA TO THE JURISDICTION
Sovereign immunity bars suits against governmental entities.
For nearly two centuries, courts in Texas have consistently recognized that “no state can
be sued in her own courts without her consent, and then only in the manner indicated by that
consent.” Hosner v. DeYoung, | Tex. 764, 769 (1847). The purpose of this limitation is obvious—
“lawsuits against the state hamper governmental functions by requiring tax resources to be used
for defending lawsuits and paying judgments rather than using those resources for their intended
purposes.” Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013) (quoting
Mission Cosol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008)) (internal quotation
marks omitted). Therefore, generally, governmental entities are immune from suits seeking to
impose liability on them. City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex.
The doctrine of sovereign immunity “bars suits against the state and its entities” unless the
state specifically waives its immunity, thereby consenting to suit. Prairie View A&M Univ. v.
, 381 S.W.3d 500, 512 (Tex. 2012). “[T]he manner in which the government conveys its
consent to suit is through the Constitution and state laws.” , 253 S.W.3d at 660. Therefore,
“it is the Legislature’s sole province to waive or abrogate sovereign immunity.” . (quoting Tex.
Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002)) (internal
quotation marks omitted). “Because any legislative waiver of immunity must be undertaken by
clear and unambiguous language, statutory waivers of immunity are to be construed narrowly.”
, 408 S.W.3d at 353 (quoting T - § 311.034) (internal quotation
marks omitted).
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A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. City of Waco v.
, 298 S.W.3d 618, 621, 22 (Tex. 2009); Tex. Dep’t of Parks & Wildlife v. Miranda
S.W.3d 217, 226-27 (Tex. 2004). A plea to the jurisdiction may challenge the pleadings, the
existence of jurisdictional facts, or both. ,544S8.W.3dat 770. “Ifthe pleadings affirmatively
negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing
the plaintiffs an opportunity to amend.” , 133 S.W.3d at 227. The plaintiff
has the burden
of alleging facts that affirmatively establish the trial court’s subject matter jurisdiction. Tex. Ass’n
, 852 S.W.2d 440, 446 (Tex. 1993).
Consent to Suit is Not Afforded by the Declaratory Judgment Act
Although the Third-Party Plaintiff attempts to cabin its lawsuit within the confines of the
Texas Declaratory Judgment Act, the Declaratory Judgment Act does not enlarge a trial court’s
jurisdiction. It is a remedial statute designed “to settle and to afford relief from uncertainty and
insecurity with respect to rights, status, and other legal relations.” A litigant’s artful pleading for
declaratory relief does not change a suit’s underlying nature. City of El Paso v. Heinrich, 284
S.W.3d 366 (Tex. 2009); . 74 S.W.3d at 855; State v. Morales, 869 S.W.2d 941, 947
(Tex.1994).
Suits against governmental employees in their official capacities are tantamount to
suits against the governmental entity.
“Tt is fundamental that a suit against a state official is merely another way of pleading an
action against the entity of which the official is an agent.” Tex. A&M Univ. Sys. v. Koseoglu, 233
S.W.3d 835, 844 (Tex. 2007) (quoting Ky. v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L.
Tex. Civ. Prac. & Rem.Code § 37.006.
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Ed. 2d 114 (1985)) (internal quotation marks and brackets omitted); see also Will v. Mich. Dep't
of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); Monell v. Dep't of
Status of case. Servs. of City of N. York, 436 U.S. 658, 690 n. 55, 98 S. Ct. 2018, 56 L. Ed. 2d 611
Tex. Dep't of Pub. Safety v. Peta, 44 S.W.3d 575, 581 (Tex. 2001). “A suit against a state
official in his official capacity is a suit against the official personally, for the real party in
interest is the entity.” . (quoting , 473 US. at 166, 105 S. Ct. 3099) (internal quotation
marks omitted) (emphasis in original). Such suits “actually seek[] to impose liability against the
governmental unit rather than on the individual specifically named and. . . [are], in all respects
other than name, a suit against the entity.” . (internal ellipses omitted).
Public officials sued in their official capacities are protected by the same sovereign
immunity enjoyed by the unit of local government which the officials represent. Terrell v. Sisk
111 S.W.3d 274, 280 (Tex. App. — Texarkana 2003, no pet.); Tex. Dep’t of Health v. Rocha, 102
S.W.3d 348, 353 (Tex. App. — Corpus Christi 2003, no pet.); Denson v. TDCJ-ID, 63 8.W.3d 454,
460 (Tex. App. — Tyler 1999, pet. denied); Morris v. Copeland 944 S.W.2d 696, 698-99 (Tex.
App. — Corpus Christi 1997, no writ). “Accordingly, the plea to the jurisdiction is procedurally
the proper method of contesting the propriety ofthe lawsuit against him or her as a public official.”
, 111 S.W.3d at 280. When a state official files a plea to the jurisdiction, the official is
invoking the sovereign immunity from suit held by the government itself.” , 233 S.W.3d
Neither Mr. Oldham nor Fort Bend County are proper parties to this suit. Therefore,
the Court does not have jurisdiction over this litigation.
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An independent school district, like FBISD is a political subdivision and an agency of the
state. Tex. Elec. Code Ann. § 1.005(13); Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex. 1978).
School districts are governed by a board of trustees, and it is the board of trustees that has the
exclusive power and duty to govern and oversee the management of the public schools for the
district. Tex. Educ. Code Ann. § 11.151(b); San Antonio Indep. Sch. Dist. v. McKinney, 936
S.W.2d 279, 282 (Tex. 1996). The board of trustees elects a president, who must be a member of
the board, to serve as the presiding officer. Tex. Educ. Code Ann. § 11.061(c)(1); see Geffert v.
Yorktown Indep. Sch. Dist., 290 S.W. 1083, 1085 (Tex. Comm'n App. 1927). The board of
trustees may employ by contract a superintendent, who is the educational leader and chief
executive officer of the school district. Tex. Educ. Code Ann. § 11.201(a), (b). The Texas
Education Code provides that the trustees of an independent school district constitute a body
corporate that may sue or be sued. § 11.151(a). As the governing board of an
rd of trustees may issue bonds and order an election, and a bond
election must be called by resolution or order of the governing board. See id. §§ 45.001(a)(1),
45.003; Tex. Elec. Code Ann. § 3.004(b).Except as otherwise provided by law, the precinct
election returns for an election ordered by an authority of a political
subdivision, other than a county, shall be canvassed by the political subdivision's governing body.
Tex. Elec. Code Ann.§ 67.002(a)(2).
“An election contest is a special proceeding created by the Legislature to provide a remedy
for elections tainted by fraud, illegality, or other irregularity.” Blum v. Lanier
S.W.2d 259, 262 (Tex. 1999) (citing De Shazo v. Webb, 113S8.W.2d 519, 524 (Tex. 1938)).
Election contests are creatures of statute, and “the power of a trial court to consider such
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contests exists on to the extent authorized by statute.” Nichols v. Seei, 97 S.W.3d 882, 883 (Tex.
(citation omitted). The Texas Election Code vests the district
with exclusive jurisdiction over an election contest. Tex. Elec. Code Ann. § 221.002(a).
of the Texas Election Code provides in relevant part that the contestee must be at
least one of the following: (1) the presiding officer of the final canvassing authority for the
contested election; (2) the presiding officer of the authority that ordered the contested election or
the ordering authority, if ordered by an individual; or (3) if the person specified by subdivision (1)
or (2) is incapacitated or cannot act for any other reason, another member of the specified authority.
§ 233.003(a). Strict compliance with the requirements of section 233.003 is necessary to invoke
the trial court's jurisdiction. Mendez v. City of Amarillo
CV, 2008 WL 2582987, at *2 (Tex. App.—Amarillo June 30, 2008, no pet.) (mem. op.) (citing
Mercer v. Woods, 78 S.W.15, 17 (1903)).
As discussed more fully above, election contests must be brought pursuant to the specific
guidelines enumerated in Texas Election Code Chapter 233. The Code unequivocally states that
persons wishing to contest an election must sue “the presiding officer of the authority that ordered
the contested election.” T § 233.002; 233.003(a)(1.)Thus, the proper contestee of
this action may only be either the final canvassing authority for the contested election or the
presiding officer of the authority that ordered the election. T § 233.003(a). Mr.
Oldham’s Plea to the Jurisdiction conclusively proves that he was neither the final canvassing
authority for the contested election nor the presiding officer of the body that ordered the election.
Therefore, he is not a proper party to this litigation
In the present case, the FBISD Board of Trustees ordered the May 6, 2023 FBISD Trustee
Election on January 9, 2023. (Exhibit E.) The presiding officer of the FBISD Board of Trustees
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is Ms. Kristen Davison Malone. Neither Mr. Oldham nor Fort Bend County is a member of the
Board of Trustees, and neither Mr. Oldham nor Fort Bend County ordered the election. (Exhibit
E.) Mr. Oldham’s sole role was to facilitate the election, but Ms. Malone and the Board of Trustees
canvassed the election (Exhibit F). Because Mr. Oldham is not “the presiding officer of the
authority that ordered the contested election,” nor is he the final canvasing officer for the election
he is not a proper party to this suit. T LEC § 233.003(a)(1). (Exhibits E & F.)
v Woodville ISD No. 09-22-00214-CV 2022 WL 3908530 (Tex. App. Beaumont August 21, 2022,
no pet.) (mem. op.).
Plaintiff has failed to plead any facts which would show that the Legislature has clearly
and unambiguously waived Fort Bend County’s sovereign immunity from her claims. On the
contrary, the relevant statute narrowly defines who can be sued in an election contest. T
§ 233.003(a)(1). Neither Mr. Oldham nor Fort Bend County are among the persons who
can be sued in Plaintiff's election contest.
Because the Legislature did not waive Fort Bend County’s sovereign immunity in clear
and unambiguous language, this litigation is barred by sovereign immunity.
408 S.W.3d at 353. Therefore, Mr. Oldham respectfully requests that his Plea to the Jurisdiction
be granted, and the present case be dismissed with prejudice.
Even If he were a proper party, Mr. Oldham would be entitled to official immunity from
Plainti *s claims.
“In Texas, a governmental employee is entitled to official immunity (1) for the
performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided
the employee is acting in good faith.” McIntosh v. Partridge, 540 F.3d 315, 326 (5 Cir. 2008).
“TAJn officer acts in bad faith only if he could not have reasonably reached the decision in
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question.” Stephens v. Wallace, 575 F. App’x 357, 359 (5 Cir. 2014) (per curiam) (quoting Univ.
, 38 S.W.3d 578, 581)).
In the present case, the evidence in the record shows that Mr. Oldham was performing his
duties in good faith. Therefore, he is entitled to official immunity from Plaintiff's claims.
Conclusion
The pleadings and evidence clearly show that Plaintiff's claims are barred by Fort Bend
County’s sovereign immunity. WHEREFORE, PREMISES CONSIDERED, John Oldham, in his
official capacity as Elections Administrator of Fort Bend County, Texas, respectfully requests that
the Court grant his Plea to the Jurisdiction, dismiss Plaintiffs claims with prejudice, render
judgment that Plaintiff takes nothing, and request any and all other relief, at law or in equity, to
which he has shown himselfto be justly entitled.
ALTERNATIVE ANSWER
a. General Denial
1 Defendant generally denies all ofthe allegations in Plaintiff’s Petition and all amendments
and/or supplements thereto and demands strict proof thereof.
b. Affirmative Defenses
2 Plaintiff
has failed to state a claim for which relief can be granted.
3 Neither this nor any other Court has jurisdiction over Plaintiff's claims.
4 Defendant is entitled to the defense of sovereign immunity from Plaintiff's claims. No
Legislative body and/or Constitution has waived sovereign immunity with respect to Plaintiff's
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Plaintiff's claims are barred by the Eleventh Amendment to the United States Constitution
and by the corresponding provisions of the Texas Constitution.
Plaintiff's injuries, if any, are the result of the actions of a person and/or entity other than
Defendant.
A unit of local government may not be vicariously liable for the acts and/or omissions of
governmental employees without a specific waiver of sovereign immunity.
Pursuant to Texas Rule of Civil Procedure 193.7, Defendant intends to use all documents
procured by Plaintiff in discovery at any pretrial proceeding and/or at trial.
SPECIAL EXCEPTIONS
Defendant specially excepts to Paragraph 19 of Plaintiffs Third Amended Petition because
Plaintiff fails to give adequate facts upon which to base her claim.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the
Court dismiss the action against him with prejudice, that the Court render judgment that Plaintiff
take nothing, and any and all other relief, at law or in equity, to which he has shown himselfto be
justly entitled.
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Respectfully submitted,
BRIDGETTE SMITH-LAWSON
FORT BEND COUNTY ATTORNEY
By: /s/
KENNETH S.CANNATA
Assistant County Attorney
SBN: 03743860
301 Jackson Street (Mail)
401 Jackson Street (Office)
Richmond, Texas 77469
Telephone: (281) 341-4555
Facsimile: (281) 341-4557
Kenneth.Cannata@fortbendcountytx.gov
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing instrument
has been forwarded to all known counsel of record or parties BY E-SERVE on this 2 day
of October 2023
/s/Kenneth S. Cannata
KENNETH S. CANNATA
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EXHIBIT A
Kyle Stone
From: Elections Internet
Sent: Thursday, March 19, 2020 4:09 PM
To: Elections Internet
Subject: MASS EMAIL ADVISORY - (CC/EA/VR -700) - Questions regarding Advisory 2020-12-
Actions for May 2, 2020 Uniform Election (COVID-19)
Sensitivity: Personal
Dear Election Officials:
We've received a number of questions related to the Governor's proclamation and Advisory 2020-12 (see email
below}. We appreciate the questions and would like to provide a few clarifications.
1 This is NOT a permanent move. The Governor's proclamation has the effect of postponing an election, but it is
not a permanent move. The result is that your current office holders will be holdovers until the next election
occurs, Your newly elected office holders in November will have a shorter term. Their next efection will return
back to the May date.
2 Elections that have been properly cancelled: If your entity cancelled their May 2, 2020 election, your new
officers will still be able to take office after the May 2, 2020 election date. If you cancelled part of your election,
you will still let the candidates that were declared elected be sworn in and the remainder of your election will
occur in November if you choose to postpone your May election. For those officers that took the oath of office
after the May 2, 2020 date, you would not have to place their names in the “unopposed candidates declared
elected” box on your ballot in November as these candidates will have already taken office.
Multi-County Territories: If your entity is in more than one county, you will be required to use each county's
polling places for the November 2020 election. You will also be required to share at least one early voting
location in accordance with Section 85.010 of the Texas Election Code.
Countywide Polling Places (Vote Centers): If your county utilizes countywide polling places for November 2020,
then you will be required to use all polling locations within each county that contains territory for your entity.
Contracting Issues: Ifa contract hasn‘t been executed between the county elections officer and the local
political subdivision, the county does NOT have an obligation to contract in May 2020. If a contract has been
executed, then both parties would need to consult with their attorney regarding options for modifying the terms
of the contract. Additionally, when you contract with your county in November, this allows you to use a joint
ballot, shared election workers, and shared voting system equipment. Politica! subdivisions will most likely not
be required to obtain their own separate voting system equipment or epollbooks.
Thank you all for the very thoughtful questions. We appreciate your patience in allowing us time to work through some
of your questions. Please let us know if there’s anything else you need from us.
Thank you,
Christina Worrell Adkins
Legal Director — Elections Division
Office of the Texas Secretary of State
1019 Brazos Street | Rudder Building, 2nd Floor | Austin, Texas 78701
1.800.252. VOTE (8683)
elections@sos.texas.gov | www.sos.texas.gov
For Voter Related Information, please visit:
VOTETEXAS.GOV.
BOUTREN RY THE TEARS SEOHETAAY Ge SETE
The information contained in this emait is intended fo provide advice and assistance in election matters per §31.004 of the Texas Election Code. {tis not
intanded fo serve as a legal opinion for any matter. Please review the faw yourself, and consult with an attomay when your legal rights are involved.
From: Elections Internet
Sent: Wednesday, March 18, 2020 11:16 AM
To: Elections Internet
Subject: MASS EMAIL ADVISORY - (CC/EA/VR -700} - Advisory 2020-12- Actions for May 2, 2020 Uniform Election
{COVID-19}
Sensitivity: Personal
Dear Election Officials:
Pursuant to a proclamation issued earlier today, Governor Greg Abbott has authorized all political subdivisions holding
general or special elections on May 2, 2020 to postpone their election to the November 3, 2020 uniform election
date. Please be advised that a postponement of your election does not happen automatically; the governing body of the
political subdivision MUST take an official action for such a change to be effective.
Today, our office has issued the attached Advisory 2020-12 ~ Actions for May 2, 2020 Uniform Election Date, providing
guidance to political subdivisions seeking to move their May 2, 2020 election date in accordance with the Governor's
proclamation.
We are in the middle of a public health crisis that is rapidly changing. Through this crisis, our primary concern is the
health and safety of voters, election workers, and our local election officials. As the situation progresses, we stand ready
to provide additional guidance regarding the upcoming elections. In the meantime, please continue to send us your
questions so that we can revise and update our materials and guidance as necessary.
Please let us know if you have any additional questions or concerns. When posted, the attached advisory will be
available on your Cond: nS pages
ing. Elbe HORS,
Thank you for all that you do for Texas elections.
Christina Worrell Adkins
Legal Director — Elections Division
Office of the Texas Secretary of State
1019 Brazos Street | Rudder Building, 2nd Floor | Austin, Texas 78701
1.800.252.VOTE (8683)
elections@sos.texas.gov | www.sos.texas.gov
For Voter Retated Information, please visit:
VOTETEXAS.GOV
POWERED OY HE KERAS SECRETARY OF STATE
The information contained in this email is intended to provide advice and assistance in election matters per §31.004 of
the Texas Election Code. it is not intended to serve as a legal opinion for any matter. Please review the law yourself, and
consult with an attorney when your legal rights are involved.
EXHIBIT B
AMENDED ORDER
FORT BEND INDEPENDENT SCHOOL DISTRICT ELECTION
ON NOVEMBER 3, 2020
ORDEN MODIFICADO
ELECCION DEL DISTRITO ESCOLAR INDEPENDIENTE FORT BEND
EN 3 DE NOVIEMBRE DE 2020)
By Proclamation of the Governor of the State of Texas, dated March 18, 2020,
political subdivisions were authorized to postpone their May 2, 2020 ejections to
the November 3, 2020 uniform election date due to the state of disaster caused by
the coronavirus COVID-19, (Por la Proclamacion de! Gobernador de! Estado de
Texas, fechada el 18 de marzo de 2020, las subdivisiones politicas estan autorizadas a
posponer sus elecciones del 2 de mayo de 2020 a la fecha de eleccién unifarme del 3
de noviembre de 2020 debido al estado de desastre causado por el coronavirus
COVID-19).
On April 6, 2020, Fort Bend Independent School District exercised this authority
and postponed until November 3, 2020 the Board of Trustees general election to
elect one person for each position to serve the full terms of Trustee Positions 1, 4
and 5. (En 6 de abril de 2020, el Distrito Escolar independiente de- Fort Bend esta
ejerciendo esta autoridad para posponer hasta al 3 de noviembre de 2020 su eleccién
general por la junta de sindicos para elegir una persona para que sirva los términos
completos de las puestos uno (1), cuatro (4) y cinco (5).)
Candidate filings submitted for the May 2, 2020 election will remain valid for the
election and the candidate filing period is closed and will not be re-opened for the
November 3, 2020 election. (Las presentaciones de candidatos presentadas para las
elecciones del 2 de mayo de 2020 sequiran siendo validas para las elecciones
celebradas y e! perfodo de presentacién de candidatos esta cerrada y no se volvera a
abrir para las elecciones del 3 de noviembre de 2020.)
The voter registration deadfine for the November 3, 2020 election is October 5,
2020. (La fecha limite de inscripcién de votantes para las elecciones del 3 de
noviembre de 2020 es el 5 de octubre de 2020.)
Early voting by personal appearance will be conducted October 13, 2020 -
October 30, 2020 as follows: (La votacién anticipada por comparecencia personal se
realizara del 13 de octubre de 2020 al 30 de octubre de 2020, se llevard’a cabo de tal
manera.)
Main Early Voting Site (E/ Lugar Principal por la Votacién Anticipada):
Fort Bend ISD Administration Building
16431 Lexington Boulevard
Sugar Land, Texas 77479
1
Day (Dia) Date (Fecha) Hours (Horas)
Tuesday ~ Friday October 13 - 16, 2020 8:00 a.m. to 7:00 p.m.
(Lunes ~ Viernes) (Octubre 13-16, 2020) (8:00 a.m. a 7:00 p.m.)
Saturday October 17, 2020 8:00 a.m. to 7:00 p.m.
(Sabado) (Octubre 17, 2020} (8:00 a.m. to 7:00 p.m.)
Sunday October 18, 2020 CLOSED
(Dominga) (Octubre 18, 2020) (CERRADO)
Monday — Friday October 19 - 23, 2020 7:00 a.m, to 7:00 p.m.
(Lunes - Viernes) (Octubre 19 -23, 2020) (7:00 a.m, a 7:00 p.m.}
Saturday October 24, 2020 8:00 a.m. to 7:00 p.m,
(Sabado) (Octubre 24, 2020) (8:00 a.m. to 7:00 p.m.)
Sunday October 25, 2020 CLOSED
(Damingo} (Octubre 25, 2020) (CERRADO)
Monday — Friday October 26 - 30, 2020 7:00 a.m. to 7:00 p.m.
(Lunes - Viernes) (Octubre 26-30, 2020) {7:00 a.m. a 7:00 p.m.)
Applications to vote by mail should be mailed to (Las aplicaciones para votar por
correo deberan enviarse a):
John Oldham
Fort Bend County Elections Administrater
301 Jackson St.
Richmond, TX 77469
Email: wz
Applications for a ballot by mail for voters that are voting by mail due to being
over the age of 65 or due to disability will still be valid for the postponed election
Applications for a ballot by mail for voters who submitted the application based
on expected absence from the county on May 2, 2020 will not be valid for the
postponed election. (Las solicitudes de una boleta por correo para los votantes que
votan por correo por ser mayores de 65 afios o por discapacidad seguiran siendo
validas para la eleccién aplazada. Las solicitudes de votacién para los votantes que
presentaron la solicitud en base a la ausencia esperada del condado del 2 de mayo de
2020 no seran validas para la eleccién pospuesta.)
Applications for ballots by mail must be received no later than the close of
business on Friday, October 23, 2020. (Las solicitudes de boletas por correo deben
recibirse a mas tardar el cierre de operaciones el 23 de octubre de 2020.)
Issued this ae
[7 day of August 2020. (Emitido 6! [7 de agosto de 2020.)
J
GLP.
J n Burdine,
sident, Board of Trustees, Fort Bend ISD
(Presidente, Junta de Sindicos, Fort Bend ISD)
And such other early voting polling places as may be designated or amended by
the early voting clerk pursuant to Section 271.006 of the Texas Election Code,
which may include, but are not limited to, the following (Y otros lugares de votacién
para votacion anticipada que pueda designar o enmendar el secretario de votacion
anticipada de conformidad con la Seccién 271.006 del Codigo Electoral de Texas, que
pueden incluir, entre otros, los siguientes):
Branch Early Voting Sites (Lugares de votacion anticipada):
Missouri City Community Center 1522 Texas Parkway, Missouri City, TX
Irene Stern Community Center 6920 Fulshear-Katy Rd., Fuishear, TX
Fort Bend Gounty Rosenberg Annex 4520 Reading Rd., Rosenberg, TX
Fort Bend County Road & Bridge 3743 School St., Needville, TX
Four Gorners Community Center 15700 Old Richmond Rd., Sugar Land, TX
James Bowie Middle School 760 Plantation Dr., Richmond, TX
First Colony Conference Center 3232 Austin Parkway, Sugar Land, TX
Hightower High School 3333 Hurricane Lane, Missouri City, TX
Lost Creek Park 3703 Lost Creek Bivd., Sugar Land, TX
Meadows Place City Hall One Troyan Drive, Meadows Place, TX
Sienna Branch Library 8411 Sienna Springs Blvd., Missouri City, TX
Beasley City Hall 319 S. 3 St., Beasley, TX
Chasewood Clubhouse 7622. Chasewood Dr., Missouri City, TX
Quail Valley Fund Office 3603 Glenn Lakes, Missouri City, TX
Water Maintenance Facility 110 N. 8 St, Richmond, TX
James Reese CT Center 12300 University Blvd. Sugar Land, TX
Sugar Land Branch Library 550 Eldridge, Sugar Land, TX
Sugar Land City Hall 2700 Town Genter Bivd., Sugar Land, TX
Schedule for Main Early Voting Site
(Horaria para el lugar principal de la Votacion Anticipada):
Fort Bend ISD Administration Building
16431 Lexington Boulevard
Sugar Land, Texas 77479
EXHIBIT C
rieu
4/21/2023 1:37 PN
Beverley McGrew Walke
District Clerk
Fort Bend County, Texas
Shelby Taylor
CAUSE NO. 23-DCV-303549
HONORABLE DENETTA R. WILLIAMS {} IN THE DISTRICT COURT OF
Plaintiff {
{}
ve {} FORT BEND COUNTY, TEXAS
{}
FORT BEND |.S.D, BOARD OF TRUSTEES, {}
Sued in their official capacity, t}
Hon. Trustee Rick Garcia }
Hon. Trustee David Hamilton {
Hon. Trustee Angie Hanan {}
Hon. Shirley Rose-Gilliam {}
Hon. Kristen Malone {}
Fort Bend County - 434th Judicial District Cr
Hon, Judy Dae {
Defendants. {} JUDICIAL DISTRICT
PLAINTIFF’S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TEMPORARY
RESTRAING ORDER, TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION
I INTRODUCTION
On March 13,2020, in response to the COVID-19 pandemic, Governor
Abbott issued a disaster proclamation. The Proclamation suspended certain
provisions of the Texas Election Code and the Texas Water Code to allow all
local political subdivisions that are utilizing the May 2, 2020, uniform
election date to postpone their election to the November 3, 2020, uniform
election date (see exhibit a).
On March 18, 2020, The Secretary of State issued Election Advisory No.
2020-12 (see exhibit b)
Governor Abbott, knowing the Texas Election Code section 3.004 (a) (3)
granted the Political Subdivision the sole authority to order their election,
Mr. Abbott inserted the following verbiage in the Advisory “in order to
utilize this move, the governing body of the political subdivisions holding
the elections must order the postponement of their election to the
November 3, 2020, uniform election date”.
On April 06, 2020, the Fort Bend Independent School District Board
of Trustees issued an amended order effectively changing their election
from the May 2, 2020, uniform election date to the November 3, 2020,
uniform election date to elect one person for each position to serve the full
terms of Trustee Positions 1, 4, and 5.
Additionally, the Election Advisory No.2020-12 articulated the following:
The entity will need to meet by August 17,2020 to make any necessary
revisions to the entity’s original order o7 election. Those revisions may
include:
1. The change to the date of the election.
2. Any change in location of the main early voting location.
3. Any changes to the early voting dates, and hours, inciuding
weekend early voting.
4. Any changes to the identity of the early voting clerk and their
contact information; or
5. Any changes to the branch early voting locations.
With such being the case, August 17, 2020, the Board of trustees
amended their election order for the final time (see exhibit c).
Noticeably absent from the order was any verbiage reducing the
term of office for the Plaintiff.
November 3, 2020, the Plaintiff was duly elected to serve the full
term of Fort Bend Independent School District Trustee Position 5.
November 16, 2020, the Honorable Jason Burdine, then President of
the Fort Bend Independent School District Board of Trustees, while
declaring the resuits of the November 3, 2620, election read the following
(see exhibit d):
POSITION 5: Denetta Williams 53,050
Reggie Abraham 31, 365
Allison Drew 47,536
A MOTION was made by Addie Heyliger and SECONDED by Grayle James
to authorize the President of the Board to certify the tabulation of Precinct
Returns from the Fort Bend county Elections Administrator and deciare
Angie Hanan as duly elected trustee to serve the full term of Position 1,
Shirley Rose- Gilliam as duly elected to serve the full term of Position 2, and
Denetta Williams as duly elected to serve the full term of Position 5. The
MOTION CARRIED. Ayes 7 — Noes 0
January 9, 2023, the FBISD Board of Trustees, in a 6 to 1 vote,
ordered an ultra vires schooi board election to be heid on May 6, 2023,
with a complete and total disregard for the laws of the state and the Texas
Constitution (see exh e).
He DISCOVERY CONTROL PLAN
1 Plaintiff intend for discovery to be conducted under Level 3 of the
Texas Rule of Civil Procedure 190.
Ti. PARTIES
Plaintiff Honorable Denetta R. Williams is a duly elected school board
trustee with the Fort Bend Independent School District (“Plaintiff”).
Defendant Rick Garcia is a duly elected school board trustee with
the Fort Bend Independent School District and is being sued in his official
capacity. He may be served at 16431 Lexington Blvd. Sugar land, Texas
77479.
Defendant David Hamilton is a duly elected school board trustee
with the Fort Bend Independent School District and is being sued in his
official capacity. He may be served at 9419 Scanlan Heights LN. Missouri
City, Texas 77459,
Defendant Angie Hanan is a duly elected school board trustee with
the Fort Independent School District and is being sued in her official
capacity. She may be served at 903 Goldfinch Sugarland, Texas 77479
Defendant Shirley Rose-Gilliam is a duly elected schooi board
trustee with the Fort bend Independent School District and is being sued
in her official capacity. She can be served at 3011 Bonney Briar Dr.
Missouri City, Texas 77459.
Defendant Kristen Malone is a duly elected school board trustee
with the Fort Bend Independent School District and is being sued in her
official capacity, She can be served at 2123 $ Fountain Valley Dr.
Missouri City, Texas 77459.
Defendant Judy Dae is a duly elected school board trustee with the
Fort Bend Independent School District and is being sued in her official
capacity. She can be served at 34 Hessenford St. Sugarland, Texas 77479
IV, JURISDICTION AND VENUE
The subject matter in controversy is within the jurisdictional limits
of this Court, and the Court has jurisdiction over this action pursuant to
Article V, Section 8, of the Texas Constitution and section 24.007 of the
Texas Government Code, as well as the Texas Uniform Declaratory
Judgments Act.
10. This Court has jurisdiction over the parties because all Defendants
reside in Texas.
11. The Plaintiff seeks non-monetary relief.
12. Venue is proper in Fort Bend County because the Defendants all
reside and occupy official office in Fort Bend County, Texas.
Vv. CAUSE OF ACTION
13. Plaintiff incorporate the foregoing paragraphs in support of the
following causes of action.
14. Plaintiff request declaratory relief under the Uniform Declaratory
Judgments Act (“UDJA”).
is. The UDJA is remedial and intended to settle and afford relief from
uncertainty and insecurity with respect to rights under state law and
must be liberally construed to achieve that purpose. Tex. Civ. Prac. &
Rem. Code. Section 37.002, The UDJA waives the sovereign immunity of
the State and its officials in actions that challenge the constitutionality of
government actions and that seek only equitable relief.
16. Pursuant to the UDJA, Plaintiff seeks a declaratory judgment of the
ORDER OF ELECTION:
a. Is ultra vires and exceeds the Board’s authority under the Texas
Education Code Chapter 11 Section 11.059 (a).
b. Impermissibly trespasses on state laws in violation of Article |,
Section 28 and Article 7, Section 1 of the Texas Constitution.
¢ Contravenes separation of powers established by Article |I of the
Texas Constitution.
17. In order to stop this ultra vires and unconstitutional Order from being
enforced, Plaintiff also seek temporary and permanent injunctive relief
pursuant to Texas Civil Practices & Remedies Code section 37.011 and
65.011,
Vi FACTS
A. Article 7 Section 1 of the Texas Constitution granted the authority to
the Legislature to create a free public education system.
In exercising the authority granted to the Legislature to create a free
public education system, chapter 11 of the Texas Education Code was
enacted which included section 11.059 (a) Terms:
A trustee of an independent school district serves a term of
three or four years.
The Texas Constitution divides the government into “three distinct
departments, each of which shall be confided to a separate body of
magistracy, to wit: Those which are Legislative to one; Those which are
Executive to another, and those which are judicial to another.” Texas
Constitution Article 2 Section 1. This article provides that “no person, or
collection of persons, being of one of these departments, shall exercise
any power properly attached to either of the others, except in the
instances herein expressly permitted”. With such being the case, the
board of trustees is not charged with enacting laws governing whereas
the Legislature is charged with such authority. Again, in exercising such
authority, the legislature enacted a term of three or four years for
school board trustees.
The Legislature enacted Chapter 3 of the Texas Election Code which
specifically specify the party authorize to order and election for a public
subdivision hence Governor Abbotts’ stipulating in the proclamation,
“In order to utilize this move, the governing body of the politica!
subdivisions holding the elections must order the postponement of
their election to the November 3, 2020, uniform election date Section
3,004 (a) (3):
ELECTION OF POLITICAL SUBDIVISION. The following
authority shall order an election: The governing body that has
elective offices, for the general election for those officers.
| filed an application for Trustee Position 5, February 14, 2020, to serve
the full three-year term of the office (see exhibit F).
Former Board of Trustee President, Jason Burdine canvassed the votes
on November 16, 2020. | was declared the winner (see exhibit D).
The Board voted unanimously to accept the election results (see exhibit
D).
H. | was sworn into office on November 16, 2020, to serve the full term.
| January 9, 2023, Kristen Malone, Bo
Preview
CAUSE NO. 23-DCV-304053 DENETTA R. WILLIAMS, § IN THE DISTRICT COURT OF Plaintiff, § § v. § FORT BEND COUNTY, TEXAS § SONYA JONES, § § 400 JUDICIAL DISTRICT DEFENDANT, JOHN OLDHAM’S, PLEA TO THE JURISDICTION FIRMATIVE DEFENSES. AND SPECIAL EXCEPTIONS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, John Oldham, in his official capacity as Elections Administrator of Fort Bend County, Texas, Defendant in the above-numbered and -referenced action, and files this his Plea to the Jurisdiction and Alternative Answer, Affirmative Defenses, and Special Exceptions, and would respectfully show unto the Court as follows: FACTUAL AND PROCEDURAL BACKGROUND On March 18, 2020, at the onset of the COVID-19 pandemic, Governor Abbott authorized political subdivisions to postpone their May 2, 2020, elections to the November 3, 2020, See The Governor of the State of Tex., Proclamation (Mar. 18, 2020), https://bit.ly/30Zwgst. The proclamation “allow[ed] political subdivisions that would otherwise hold elections on May 2, 2020, to move their general and special elections for 2020 only to the next uniform election date, occurring on November 3, 2020, without otherwise adjusting the term of office... . » . (emphasis added). On that same day, the Secretary of State issued Election Advisory No. 2020-12. Tex. Sec’y of State, Election Advisory No. URISDICTION LTERNATIVE NSWER FFIRMATIVE XCEPTIONS OF 2020-12 (Mar. 18, 2020), https://bit.ly/3 LoISzE. Election Advisory 2020-12 interpreted the proclamation. Understandably, political subdivisions across the state asked how the Governor’s proclamation would affect the term lengths for newly-elected officials. The Secretary of State’s Office responded as follows: “Your newly elected office holders in November will have a shorter term. Their next election will return back to the May date.” See Email from Christina Worrell Adkins, Legal Director of the Elections Division for the Office of the Secretary of State, to Texas Political Subdivisions (Mar. 19, 2020)) at 1, attached as Exhibit Williams applied for a trustee position on the Fort Bend Independent School District’s (FBISD) Board. The term was originally intended to run from May 2020 to May 2023. See Fort Bend Indep. Sch. Dist., Application of Denetta Williams for a Place on the May 2, 2020, General Election Ballot (Feb. 14, 2020),https://bit.ly/3HsZsOL. However, pursuant to the proclamation, the position’s term was effectively shortened. The Governor’s proclamation was not self- executing. The Governor of the State of Tex., supra (stating that it would “ political (“In subdivisions” to move the election date) (emphasis added); see also Tex. Sec’y of State, order to utilize this move, the governing body of the political subdivisions holding the elections the postponement of their election to the November 3, 2020, uniform election date.”)(emphasis in original). In accordance with the Governor’s March 18, 2020, proclamation, FBISD amended its election order and postponed the May 2, 2020, election to November 3, 2020. May 2020 Election Amendment Order attached as Exhibit B. Williams was elected to the position .It is undisputed that Williams was sworn in as a trustee and served on the FBISD’s Board from November 2020 to May 2023. Consistent with the law, FBISD called the subsequent election for Williams’ then-held position number in January 2023. URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF In response, Williams challenged the order under which she was elected as void and challenged FBISD’s order calling the May 2023 election. Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction, generally, Williams v. Fort Bend I.S.D. Board of Trustees , No. 23-DCV-303549 (434th Dist. Ct., Fort Bend County, Tex. April 21, 2023), attached as Exhibit C. After FBISD filed a Plea to the Jurisdiction, a hearing was held and the court granted FBISD’s Plea, dismissing Williams’ claims with prejudice See Order Dismissing with Prejudice Plaintiff's claims, generally, Williams v. Fort Bend I.S.D. Board of Trustees , No. 23-DCV-303549 (434th Dist. Ct., Fort Bend County, Tex. May 1, 2023), attached as Exhibit D. The May 2023 election has since concluded. Ms. Sonya Jones was announced the winner on May 6, 2023. Williams’ Third Amended Petition (Petition or Pet.) at 2. She replaced Williams as a Trustee. Williams now attempts to contest the May 2023 election results by filing her Third Amended Petition for the same reasons she attempted to stop the election from occurring in the first place. Williams names John Oldham in his Official Capacity as Fort Bend County Elections Administrator as a party defendant for the first time in her Thir September 5, 2023. And, in doing this, she completely disregards the fact that her claims that the election was illegal have already been dismissed with prejudice and as such her claims are barred by the doctrine of collateral estoppel/ issue preclusion. Williams does not state any valid claim of relief against Defendant Oldham, does not state facts which support a valid waiver of sovereign immunity nor is he a proper party to this litigation. Accordingly, this Court should grant the Oldham’s Plea to the Jurisdiction. URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF PLEA TO THE JURISDICTION Sovereign immunity bars suits against governmental entities. For nearly two centuries, courts in Texas have consistently recognized that “no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.” Hosner v. DeYoung, | Tex. 764, 769 (1847). The purpose of this limitation is obvious— “lawsuits against the state hamper governmental functions by requiring tax resources to be used for defending lawsuits and paying judgments rather than using those resources for their intended purposes.” Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013) (quoting Mission Cosol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008)) (internal quotation marks omitted). Therefore, generally, governmental entities are immune from suits seeking to impose liability on them. City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. The doctrine of sovereign immunity “bars suits against the state and its entities” unless the state specifically waives its immunity, thereby consenting to suit. Prairie View A&M Univ. v. , 381 S.W.3d 500, 512 (Tex. 2012). “[T]he manner in which the government conveys its consent to suit is through the Constitution and state laws.” , 253 S.W.3d at 660. Therefore, “it is the Legislature’s sole province to waive or abrogate sovereign immunity.” . (quoting Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002)) (internal quotation marks omitted). “Because any legislative waiver of immunity must be undertaken by clear and unambiguous language, statutory waivers of immunity are to be construed narrowly.” , 408 S.W.3d at 353 (quoting T - § 311.034) (internal quotation marks omitted). URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. City of Waco v. , 298 S.W.3d 618, 621, 22 (Tex. 2009); Tex. Dep’t of Parks & Wildlife v. Miranda S.W.3d 217, 226-27 (Tex. 2004). A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. ,544S8.W.3dat 770. “Ifthe pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.” , 133 S.W.3d at 227. The plaintiff has the burden of alleging facts that affirmatively establish the trial court’s subject matter jurisdiction. Tex. Ass’n , 852 S.W.2d 440, 446 (Tex. 1993). Consent to Suit is Not Afforded by the Declaratory Judgment Act Although the Third-Party Plaintiff attempts to cabin its lawsuit within the confines of the Texas Declaratory Judgment Act, the Declaratory Judgment Act does not enlarge a trial court’s jurisdiction. It is a remedial statute designed “to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” A litigant’s artful pleading for declaratory relief does not change a suit’s underlying nature. City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009); . 74 S.W.3d at 855; State v. Morales, 869 S.W.2d 941, 947 (Tex.1994). Suits against governmental employees in their official capacities are tantamount to suits against the governmental entity. “Tt is fundamental that a suit against a state official is merely another way of pleading an action against the entity of which the official is an agent.” Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting Ky. v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Tex. Civ. Prac. & Rem.Code § 37.006. URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF Ed. 2d 114 (1985)) (internal quotation marks and brackets omitted); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); Monell v. Dep't of Status of case. Servs. of City of N. York, 436 U.S. 658, 690 n. 55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 Tex. Dep't of Pub. Safety v. Peta, 44 S.W.3d 575, 581 (Tex. 2001). “A suit against a state official in his official capacity is a suit against the official personally, for the real party in interest is the entity.” . (quoting , 473 US. at 166, 105 S. Ct. 3099) (internal quotation marks omitted) (emphasis in original). Such suits “actually seek[] to impose liability against the governmental unit rather than on the individual specifically named and. . . [are], in all respects other than name, a suit against the entity.” . (internal ellipses omitted). Public officials sued in their official capacities are protected by the same sovereign immunity enjoyed by the unit of local government which the officials represent. Terrell v. Sisk 111 S.W.3d 274, 280 (Tex. App. — Texarkana 2003, no pet.); Tex. Dep’t of Health v. Rocha, 102 S.W.3d 348, 353 (Tex. App. — Corpus Christi 2003, no pet.); Denson v. TDCJ-ID, 63 8.W.3d 454, 460 (Tex. App. — Tyler 1999, pet. denied); Morris v. Copeland 944 S.W.2d 696, 698-99 (Tex. App. — Corpus Christi 1997, no writ). “Accordingly, the plea to the jurisdiction is procedurally the proper method of contesting the propriety ofthe lawsuit against him or her as a public official.” , 111 S.W.3d at 280. When a state official files a plea to the jurisdiction, the official is invoking the sovereign immunity from suit held by the government itself.” , 233 S.W.3d Neither Mr. Oldham nor Fort Bend County are proper parties to this suit. Therefore, the Court does not have jurisdiction over this litigation. URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF An independent school district, like FBISD is a political subdivision and an agency of the state. Tex. Elec. Code Ann. § 1.005(13); Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex. 1978). School districts are governed by a board of trustees, and it is the board of trustees that has the exclusive power and duty to govern and oversee the management of the public schools for the district. Tex. Educ. Code Ann. § 11.151(b); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 282 (Tex. 1996). The board of trustees elects a president, who must be a member of the board, to serve as the presiding officer. Tex. Educ. Code Ann. § 11.061(c)(1); see Geffert v. Yorktown Indep. Sch. Dist., 290 S.W. 1083, 1085 (Tex. Comm'n App. 1927). The board of trustees may employ by contract a superintendent, who is the educational leader and chief executive officer of the school district. Tex. Educ. Code Ann. § 11.201(a), (b). The Texas Education Code provides that the trustees of an independent school district constitute a body corporate that may sue or be sued. § 11.151(a). As the governing board of an rd of trustees may issue bonds and order an election, and a bond election must be called by resolution or order of the governing board. See id. §§ 45.001(a)(1), 45.003; Tex. Elec. Code Ann. § 3.004(b).Except as otherwise provided by law, the precinct election returns for an election ordered by an authority of a political subdivision, other than a county, shall be canvassed by the political subdivision's governing body. Tex. Elec. Code Ann.§ 67.002(a)(2). “An election contest is a special proceeding created by the Legislature to provide a remedy for elections tainted by fraud, illegality, or other irregularity.” Blum v. Lanier S.W.2d 259, 262 (Tex. 1999) (citing De Shazo v. Webb, 113S8.W.2d 519, 524 (Tex. 1938)). Election contests are creatures of statute, and “the power of a trial court to consider such URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF contests exists on to the extent authorized by statute.” Nichols v. Seei, 97 S.W.3d 882, 883 (Tex. (citation omitted). The Texas Election Code vests the district with exclusive jurisdiction over an election contest. Tex. Elec. Code Ann. § 221.002(a). of the Texas Election Code provides in relevant part that the contestee must be at least one of the following: (1) the presiding officer of the final canvassing authority for the contested election; (2) the presiding officer of the authority that ordered the contested election or the ordering authority, if ordered by an individual; or (3) if the person specified by subdivision (1) or (2) is incapacitated or cannot act for any other reason, another member of the specified authority. § 233.003(a). Strict compliance with the requirements of section 233.003 is necessary to invoke the trial court's jurisdiction. Mendez v. City of Amarillo CV, 2008 WL 2582987, at *2 (Tex. App.—Amarillo June 30, 2008, no pet.) (mem. op.) (citing Mercer v. Woods, 78 S.W.15, 17 (1903)). As discussed more fully above, election contests must be brought pursuant to the specific guidelines enumerated in Texas Election Code Chapter 233. The Code unequivocally states that persons wishing to contest an election must sue “the presiding officer of the authority that ordered the contested election.” T § 233.002; 233.003(a)(1.)Thus, the proper contestee of this action may only be either the final canvassing authority for the contested election or the presiding officer of the authority that ordered the election. T § 233.003(a). Mr. Oldham’s Plea to the Jurisdiction conclusively proves that he was neither the final canvassing authority for the contested election nor the presiding officer of the body that ordered the election. Therefore, he is not a proper party to this litigation In the present case, the FBISD Board of Trustees ordered the May 6, 2023 FBISD Trustee Election on January 9, 2023. (Exhibit E.) The presiding officer of the FBISD Board of Trustees URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF is Ms. Kristen Davison Malone. Neither Mr. Oldham nor Fort Bend County is a member of the Board of Trustees, and neither Mr. Oldham nor Fort Bend County ordered the election. (Exhibit E.) Mr. Oldham’s sole role was to facilitate the election, but Ms. Malone and the Board of Trustees canvassed the election (Exhibit F). Because Mr. Oldham is not “the presiding officer of the authority that ordered the contested election,” nor is he the final canvasing officer for the election he is not a proper party to this suit. T LEC § 233.003(a)(1). (Exhibits E & F.) v Woodville ISD No. 09-22-00214-CV 2022 WL 3908530 (Tex. App. Beaumont August 21, 2022, no pet.) (mem. op.). Plaintiff has failed to plead any facts which would show that the Legislature has clearly and unambiguously waived Fort Bend County’s sovereign immunity from her claims. On the contrary, the relevant statute narrowly defines who can be sued in an election contest. T § 233.003(a)(1). Neither Mr. Oldham nor Fort Bend County are among the persons who can be sued in Plaintiff's election contest. Because the Legislature did not waive Fort Bend County’s sovereign immunity in clear and unambiguous language, this litigation is barred by sovereign immunity. 408 S.W.3d at 353. Therefore, Mr. Oldham respectfully requests that his Plea to the Jurisdiction be granted, and the present case be dismissed with prejudice. Even If he were a proper party, Mr. Oldham would be entitled to official immunity from Plainti *s claims. “In Texas, a governmental employee is entitled to official immunity (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee is acting in good faith.” McIntosh v. Partridge, 540 F.3d 315, 326 (5 Cir. 2008). “TAJn officer acts in bad faith only if he could not have reasonably reached the decision in URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF question.” Stephens v. Wallace, 575 F. App’x 357, 359 (5 Cir. 2014) (per curiam) (quoting Univ. , 38 S.W.3d 578, 581)). In the present case, the evidence in the record shows that Mr. Oldham was performing his duties in good faith. Therefore, he is entitled to official immunity from Plaintiff's claims. Conclusion The pleadings and evidence clearly show that Plaintiff's claims are barred by Fort Bend County’s sovereign immunity. WHEREFORE, PREMISES CONSIDERED, John Oldham, in his official capacity as Elections Administrator of Fort Bend County, Texas, respectfully requests that the Court grant his Plea to the Jurisdiction, dismiss Plaintiffs claims with prejudice, render judgment that Plaintiff takes nothing, and request any and all other relief, at law or in equity, to which he has shown himselfto be justly entitled. ALTERNATIVE ANSWER a. General Denial 1 Defendant generally denies all ofthe allegations in Plaintiff’s Petition and all amendments and/or supplements thereto and demands strict proof thereof. b. Affirmative Defenses 2 Plaintiff has failed to state a claim for which relief can be granted. 3 Neither this nor any other Court has jurisdiction over Plaintiff's claims. 4 Defendant is entitled to the defense of sovereign immunity from Plaintiff's claims. No Legislative body and/or Constitution has waived sovereign immunity with respect to Plaintiff's URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF 12 Plaintiff's claims are barred by the Eleventh Amendment to the United States Constitution and by the corresponding provisions of the Texas Constitution. Plaintiff's injuries, if any, are the result of the actions of a person and/or entity other than Defendant. A unit of local government may not be vicariously liable for the acts and/or omissions of governmental employees without a specific waiver of sovereign immunity. Pursuant to Texas Rule of Civil Procedure 193.7, Defendant intends to use all documents procured by Plaintiff in discovery at any pretrial proceeding and/or at trial. SPECIAL EXCEPTIONS Defendant specially excepts to Paragraph 19 of Plaintiffs Third Amended Petition because Plaintiff fails to give adequate facts upon which to base her claim. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the Court dismiss the action against him with prejudice, that the Court render judgment that Plaintiff take nothing, and any and all other relief, at law or in equity, to which he has shown himselfto be justly entitled. URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF 12 Respectfully submitted, BRIDGETTE SMITH-LAWSON FORT BEND COUNTY ATTORNEY By: /s/ KENNETH S.CANNATA Assistant County Attorney SBN: 03743860 301 Jackson Street (Mail) 401 Jackson Street (Office) Richmond, Texas 77469 Telephone: (281) 341-4555 Facsimile: (281) 341-4557 Kenneth.Cannata@fortbendcountytx.gov ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all known counsel of record or parties BY E-SERVE on this 2 day of October 2023 /s/Kenneth S. Cannata KENNETH S. CANNATA URISDICTION LTERNATIVE NSWER FFIRMATIVE AND XCEPTIONS OF 12 EXHIBIT A Kyle Stone From: Elections Internet Sent: Thursday, March 19, 2020 4:09 PM To: Elections Internet Subject: MASS EMAIL ADVISORY - (CC/EA/VR -700) - Questions regarding Advisory 2020-12- Actions for May 2, 2020 Uniform Election (COVID-19) Sensitivity: Personal Dear Election Officials: We've received a number of questions related to the Governor's proclamation and Advisory 2020-12 (see email below}. We appreciate the questions and would like to provide a few clarifications. 1 This is NOT a permanent move. The Governor's proclamation has the effect of postponing an election, but it is not a permanent move. The result is that your current office holders will be holdovers until the next election occurs, Your newly elected office holders in November will have a shorter term. Their next efection will return back to the May date. 2 Elections that have been properly cancelled: If your entity cancelled their May 2, 2020 election, your new officers will still be able to take office after the May 2, 2020 election date. If you cancelled part of your election, you will still let the candidates that were declared elected be sworn in and the remainder of your election will occur in November if you choose to postpone your May election. For those officers that took the oath of office after the May 2, 2020 date, you would not have to place their names in the “unopposed candidates declared elected” box on your ballot in November as these candidates will have already taken office. Multi-County Territories: If your entity is in more than one county, you will be required to use each county's polling places for the November 2020 election. You will also be required to share at least one early voting location in accordance with Section 85.010 of the Texas Election Code. Countywide Polling Places (Vote Centers): If your county utilizes countywide polling places for November 2020, then you will be required to use all polling locations within each county that contains territory for your entity. Contracting Issues: Ifa contract hasn‘t been executed between the county elections officer and the local political subdivision, the county does NOT have an obligation to contract in May 2020. If a contract has been executed, then both parties would need to consult with their attorney regarding options for modifying the terms of the contract. Additionally, when you contract with your county in November, this allows you to use a joint ballot, shared election workers, and shared voting system equipment. Politica! subdivisions will most likely not be required to obtain their own separate voting system equipment or epollbooks. Thank you all for the very thoughtful questions. We appreciate your patience in allowing us time to work through some of your questions. Please let us know if there’s anything else you need from us. Thank you, Christina Worrell Adkins Legal Director — Elections Division Office of the Texas Secretary of State 1019 Brazos Street | Rudder Building, 2nd Floor | Austin, Texas 78701 1.800.252. VOTE (8683) elections@sos.texas.gov | www.sos.texas.gov For Voter Related Information, please visit: VOTETEXAS.GOV. BOUTREN RY THE TEARS SEOHETAAY Ge SETE The information contained in this emait is intended fo provide advice and assistance in election matters per §31.004 of the Texas Election Code. {tis not intanded fo serve as a legal opinion for any matter. Please review the faw yourself, and consult with an attomay when your legal rights are involved. From: Elections Internet Sent: Wednesday, March 18, 2020 11:16 AM To: Elections Internet Subject: MASS EMAIL ADVISORY - (CC/EA/VR -700} - Advisory 2020-12- Actions for May 2, 2020 Uniform Election {COVID-19} Sensitivity: Personal Dear Election Officials: Pursuant to a proclamation issued earlier today, Governor Greg Abbott has authorized all political subdivisions holding general or special elections on May 2, 2020 to postpone their election to the November 3, 2020 uniform election date. Please be advised that a postponement of your election does not happen automatically; the governing body of the political subdivision MUST take an official action for such a change to be effective. Today, our office has issued the attached Advisory 2020-12 ~ Actions for May 2, 2020 Uniform Election Date, providing guidance to political subdivisions seeking to move their May 2, 2020 election date in accordance with the Governor's proclamation. We are in the middle of a public health crisis that is rapidly changing. Through this crisis, our primary concern is the health and safety of voters, election workers, and our local election officials. As the situation progresses, we stand ready to provide additional guidance regarding the upcoming elections. In the meantime, please continue to send us your questions so that we can revise and update our materials and guidance as necessary. Please let us know if you have any additional questions or concerns. When posted, the attached advisory will be available on your Cond: nS pages ing. Elbe HORS, Thank you for all that you do for Texas elections. Christina Worrell Adkins Legal Director — Elections Division Office of the Texas Secretary of State 1019 Brazos Street | Rudder Building, 2nd Floor | Austin, Texas 78701 1.800.252.VOTE (8683) elections@sos.texas.gov | www.sos.texas.gov For Voter Retated Information, please visit: VOTETEXAS.GOV POWERED OY HE KERAS SECRETARY OF STATE The information contained in this email is intended to provide advice and assistance in election matters per §31.004 of the Texas Election Code. it is not intended to serve as a legal opinion for any matter. Please review the law yourself, and consult with an attorney when your legal rights are involved. EXHIBIT B AMENDED ORDER FORT BEND INDEPENDENT SCHOOL DISTRICT ELECTION ON NOVEMBER 3, 2020 ORDEN MODIFICADO ELECCION DEL DISTRITO ESCOLAR INDEPENDIENTE FORT BEND EN 3 DE NOVIEMBRE DE 2020) By Proclamation of the Governor of the State of Texas, dated March 18, 2020, political subdivisions were authorized to postpone their May 2, 2020 ejections to the November 3, 2020 uniform election date due to the state of disaster caused by the coronavirus COVID-19, (Por la Proclamacion de! Gobernador de! Estado de Texas, fechada el 18 de marzo de 2020, las subdivisiones politicas estan autorizadas a posponer sus elecciones del 2 de mayo de 2020 a la fecha de eleccién unifarme del 3 de noviembre de 2020 debido al estado de desastre causado por el coronavirus COVID-19). On April 6, 2020, Fort Bend Independent School District exercised this authority and postponed until November 3, 2020 the Board of Trustees general election to elect one person for each position to serve the full terms of Trustee Positions 1, 4 and 5. (En 6 de abril de 2020, el Distrito Escolar independiente de- Fort Bend esta ejerciendo esta autoridad para posponer hasta al 3 de noviembre de 2020 su eleccién general por la junta de sindicos para elegir una persona para que sirva los términos completos de las puestos uno (1), cuatro (4) y cinco (5).) Candidate filings submitted for the May 2, 2020 election will remain valid for the election and the candidate filing period is closed and will not be re-opened for the November 3, 2020 election. (Las presentaciones de candidatos presentadas para las elecciones del 2 de mayo de 2020 sequiran siendo validas para las elecciones celebradas y e! perfodo de presentacién de candidatos esta cerrada y no se volvera a abrir para las elecciones del 3 de noviembre de 2020.) The voter registration deadfine for the November 3, 2020 election is October 5, 2020. (La fecha limite de inscripcién de votantes para las elecciones del 3 de noviembre de 2020 es el 5 de octubre de 2020.) Early voting by personal appearance will be conducted October 13, 2020 - October 30, 2020 as follows: (La votacién anticipada por comparecencia personal se realizara del 13 de octubre de 2020 al 30 de octubre de 2020, se llevard’a cabo de tal manera.) Main Early Voting Site (E/ Lugar Principal por la Votacién Anticipada): Fort Bend ISD Administration Building 16431 Lexington Boulevard Sugar Land, Texas 77479 1 Day (Dia) Date (Fecha) Hours (Horas) Tuesday ~ Friday October 13 - 16, 2020 8:00 a.m. to 7:00 p.m. (Lunes ~ Viernes) (Octubre 13-16, 2020) (8:00 a.m. a 7:00 p.m.) Saturday October 17, 2020 8:00 a.m. to 7:00 p.m. (Sabado) (Octubre 17, 2020} (8:00 a.m. to 7:00 p.m.) Sunday October 18, 2020 CLOSED (Dominga) (Octubre 18, 2020) (CERRADO) Monday — Friday October 19 - 23, 2020 7:00 a.m, to 7:00 p.m. (Lunes - Viernes) (Octubre 19 -23, 2020) (7:00 a.m, a 7:00 p.m.} Saturday October 24, 2020 8:00 a.m. to 7:00 p.m, (Sabado) (Octubre 24, 2020) (8:00 a.m. to 7:00 p.m.) Sunday October 25, 2020 CLOSED (Damingo} (Octubre 25, 2020) (CERRADO) Monday — Friday October 26 - 30, 2020 7:00 a.m. to 7:00 p.m. (Lunes - Viernes) (Octubre 26-30, 2020) {7:00 a.m. a 7:00 p.m.) Applications to vote by mail should be mailed to (Las aplicaciones para votar por correo deberan enviarse a): John Oldham Fort Bend County Elections Administrater 301 Jackson St. Richmond, TX 77469 Email: wz Applications for a ballot by mail for voters that are voting by mail due to being over the age of 65 or due to disability will still be valid for the postponed election Applications for a ballot by mail for voters who submitted the application based on expected absence from the county on May 2, 2020 will not be valid for the postponed election. (Las solicitudes de una boleta por correo para los votantes que votan por correo por ser mayores de 65 afios o por discapacidad seguiran siendo validas para la eleccién aplazada. Las solicitudes de votacién para los votantes que presentaron la solicitud en base a la ausencia esperada del condado del 2 de mayo de 2020 no seran validas para la eleccién pospuesta.) Applications for ballots by mail must be received no later than the close of business on Friday, October 23, 2020. (Las solicitudes de boletas por correo deben recibirse a mas tardar el cierre de operaciones el 23 de octubre de 2020.) Issued this ae [7 day of August 2020. (Emitido 6! [7 de agosto de 2020.) J GLP. J n Burdine, sident, Board of Trustees, Fort Bend ISD (Presidente, Junta de Sindicos, Fort Bend ISD) And such other early voting polling places as may be designated or amended by the early voting clerk pursuant to Section 271.006 of the Texas Election Code, which may include, but are not limited to, the following (Y otros lugares de votacién para votacion anticipada que pueda designar o enmendar el secretario de votacion anticipada de conformidad con la Seccién 271.006 del Codigo Electoral de Texas, que pueden incluir, entre otros, los siguientes): Branch Early Voting Sites (Lugares de votacion anticipada): Missouri City Community Center 1522 Texas Parkway, Missouri City, TX Irene Stern Community Center 6920 Fulshear-Katy Rd., Fuishear, TX Fort Bend Gounty Rosenberg Annex 4520 Reading Rd., Rosenberg, TX Fort Bend County Road & Bridge 3743 School St., Needville, TX Four Gorners Community Center 15700 Old Richmond Rd., Sugar Land, TX James Bowie Middle School 760 Plantation Dr., Richmond, TX First Colony Conference Center 3232 Austin Parkway, Sugar Land, TX Hightower High School 3333 Hurricane Lane, Missouri City, TX Lost Creek Park 3703 Lost Creek Bivd., Sugar Land, TX Meadows Place City Hall One Troyan Drive, Meadows Place, TX Sienna Branch Library 8411 Sienna Springs Blvd., Missouri City, TX Beasley City Hall 319 S. 3 St., Beasley, TX Chasewood Clubhouse 7622. Chasewood Dr., Missouri City, TX Quail Valley Fund Office 3603 Glenn Lakes, Missouri City, TX Water Maintenance Facility 110 N. 8 St, Richmond, TX James Reese CT Center 12300 University Blvd. Sugar Land, TX Sugar Land Branch Library 550 Eldridge, Sugar Land, TX Sugar Land City Hall 2700 Town Genter Bivd., Sugar Land, TX Schedule for Main Early Voting Site (Horaria para el lugar principal de la Votacion Anticipada): Fort Bend ISD Administration Building 16431 Lexington Boulevard Sugar Land, Texas 77479 EXHIBIT C rieu 4/21/2023 1:37 PN Beverley McGrew Walke District Clerk Fort Bend County, Texas Shelby Taylor CAUSE NO. 23-DCV-303549 HONORABLE DENETTA R. WILLIAMS {} IN THE DISTRICT COURT OF Plaintiff { {} ve {} FORT BEND COUNTY, TEXAS {} FORT BEND |.S.D, BOARD OF TRUSTEES, {} Sued in their official capacity, t} Hon. Trustee Rick Garcia } Hon. Trustee David Hamilton { Hon. Trustee Angie Hanan {} Hon. Shirley Rose-Gilliam {} Hon. Kristen Malone {} Fort Bend County - 434th Judicial District Cr Hon, Judy Dae { Defendants. {} JUDICIAL DISTRICT PLAINTIFF’S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAING ORDER, TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION I INTRODUCTION On March 13,2020, in response to the COVID-19 pandemic, Governor Abbott issued a disaster proclamation. The Proclamation suspended certain provisions of the Texas Election Code and the Texas Water Code to allow all local political subdivisions that are utilizing the May 2, 2020, uniform election date to postpone their election to the November 3, 2020, uniform election date (see exhibit a). On March 18, 2020, The Secretary of State issued Election Advisory No. 2020-12 (see exhibit b) Governor Abbott, knowing the Texas Election Code section 3.004 (a) (3) granted the Political Subdivision the sole authority to order their election, Mr. Abbott inserted the following verbiage in the Advisory “in order to utilize this move, the governing body of the political subdivisions holding the elections must order the postponement of their election to the November 3, 2020, uniform election date”. On April 06, 2020, the Fort Bend Independent School District Board of Trustees issued an amended order effectively changing their election from the May 2, 2020, uniform election date to the November 3, 2020, uniform election date to elect one person for each position to serve the full terms of Trustee Positions 1, 4, and 5. Additionally, the Election Advisory No.2020-12 articulated the following: The entity will need to meet by August 17,2020 to make any necessary revisions to the entity’s original order o7 election. Those revisions may include: 1. The change to the date of the election. 2. Any change in location of the main early voting location. 3. Any changes to the early voting dates, and hours, inciuding weekend early voting. 4. Any changes to the identity of the early voting clerk and their contact information; or 5. Any changes to the branch early voting locations. With such being the case, August 17, 2020, the Board of trustees amended their election order for the final time (see exhibit c). Noticeably absent from the order was any verbiage reducing the term of office for the Plaintiff. November 3, 2020, the Plaintiff was duly elected to serve the full term of Fort Bend Independent School District Trustee Position 5. November 16, 2020, the Honorable Jason Burdine, then President of the Fort Bend Independent School District Board of Trustees, while declaring the resuits of the November 3, 2620, election read the following (see exhibit d): POSITION 5: Denetta Williams 53,050 Reggie Abraham 31, 365 Allison Drew 47,536 A MOTION was made by Addie Heyliger and SECONDED by Grayle James to authorize the President of the Board to certify the tabulation of Precinct Returns from the Fort Bend county Elections Administrator and deciare Angie Hanan as duly elected trustee to serve the full term of Position 1, Shirley Rose- Gilliam as duly elected to serve the full term of Position 2, and Denetta Williams as duly elected to serve the full term of Position 5. The MOTION CARRIED. Ayes 7 — Noes 0 January 9, 2023, the FBISD Board of Trustees, in a 6 to 1 vote, ordered an ultra vires schooi board election to be heid on May 6, 2023, with a complete and total disregard for the laws of the state and the Texas Constitution (see exh e). He DISCOVERY CONTROL PLAN 1 Plaintiff intend for discovery to be conducted under Level 3 of the Texas Rule of Civil Procedure 190. Ti. PARTIES Plaintiff Honorable Denetta R. Williams is a duly elected school board trustee with the Fort Bend Independent School District (“Plaintiff”). Defendant Rick Garcia is a duly elected school board trustee with the Fort Bend Independent School District and is being sued in his official capacity. He may be served at 16431 Lexington Blvd. Sugar land, Texas 77479. Defendant David Hamilton is a duly elected school board trustee with the Fort Bend Independent School District and is being sued in his official capacity. He may be served at 9419 Scanlan Heights LN. Missouri City, Texas 77459, Defendant Angie Hanan is a duly elected school board trustee with the Fort Independent School District and is being sued in her official capacity. She may be served at 903 Goldfinch Sugarland, Texas 77479 Defendant Shirley Rose-Gilliam is a duly elected schooi board trustee with the Fort bend Independent School District and is being sued in her official capacity. She can be served at 3011 Bonney Briar Dr. Missouri City, Texas 77459. Defendant Kristen Malone is a duly elected school board trustee with the Fort Bend Independent School District and is being sued in her official capacity, She can be served at 2123 $ Fountain Valley Dr. Missouri City, Texas 77459. Defendant Judy Dae is a duly elected school board trustee with the Fort Bend Independent School District and is being sued in her official capacity. She can be served at 34 Hessenford St. Sugarland, Texas 77479 IV, JURISDICTION AND VENUE The subject matter in controversy is within the jurisdictional limits of this Court, and the Court has jurisdiction over this action pursuant to Article V, Section 8, of the Texas Constitution and section 24.007 of the Texas Government Code, as well as the Texas Uniform Declaratory Judgments Act. 10. This Court has jurisdiction over the parties because all Defendants reside in Texas. 11. The Plaintiff seeks non-monetary relief. 12. Venue is proper in Fort Bend County because the Defendants all reside and occupy official office in Fort Bend County, Texas. Vv. CAUSE OF ACTION 13. Plaintiff incorporate the foregoing paragraphs in support of the following causes of action. 14. Plaintiff request declaratory relief under the Uniform Declaratory Judgments Act (“UDJA”). is. The UDJA is remedial and intended to settle and afford relief from uncertainty and insecurity with respect to rights under state law and must be liberally construed to achieve that purpose. Tex. Civ. Prac. & Rem. Code. Section 37.002, The UDJA waives the sovereign immunity of the State and its officials in actions that challenge the constitutionality of government actions and that seek only equitable relief. 16. Pursuant to the UDJA, Plaintiff seeks a declaratory judgment of the ORDER OF ELECTION: a. Is ultra vires and exceeds the Board’s authority under the Texas Education Code Chapter 11 Section 11.059 (a). b. Impermissibly trespasses on state laws in violation of Article |, Section 28 and Article 7, Section 1 of the Texas Constitution. ¢ Contravenes separation of powers established by Article |I of the Texas Constitution. 17. In order to stop this ultra vires and unconstitutional Order from being enforced, Plaintiff also seek temporary and permanent injunctive relief pursuant to Texas Civil Practices & Remedies Code section 37.011 and 65.011, Vi FACTS A. Article 7 Section 1 of the Texas Constitution granted the authority to the Legislature to create a free public education system. In exercising the authority granted to the Legislature to create a free public education system, chapter 11 of the Texas Education Code was enacted which included section 11.059 (a) Terms: A trustee of an independent school district serves a term of three or four years. The Texas Constitution divides the government into “three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; Those which are Executive to another, and those which are judicial to another.” Texas Constitution Article 2 Section 1. This article provides that “no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted”. With such being the case, the board of trustees is not charged with enacting laws governing whereas the Legislature is charged with such authority. Again, in exercising such authority, the legislature enacted a term of three or four years for school board trustees. The Legislature enacted Chapter 3 of the Texas Election Code which specifically specify the party authorize to order and election for a public subdivision hence Governor Abbotts’ stipulating in the proclamation, “In order to utilize this move, the governing body of the politica! subdivisions holding the elections must order the postponement of their election to the November 3, 2020, uniform election date Section 3,004 (a) (3): ELECTION OF POLITICAL SUBDIVISION. The following authority shall order an election: The governing body that has elective offices, for the general election for those officers. | filed an application for Trustee Position 5, February 14, 2020, to serve the full three-year term of the office (see exhibit F). Former Board of Trustee President, Jason Burdine canvassed the votes on November 16, 2020. | was declared the winner (see exhibit D). The Board voted unanimously to accept the election results (see exhibit D). H. | was sworn into office on November 16, 2020, to serve the full term. | January 9, 2023, Kristen Malone, Bo