2/8/2016 10:02:32 AM
Chris Daniel - District Clerk Harris County
Envelope No. 8997496
By: Euniecy Gentry
Filed: 2/8/2016 10:02:32 AM

2015-69353
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Plaintiff
v.
ANNISE D. PARKER, MAYOR, and
THE CITY OF HOUSTON,
Defendants

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

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PHILLIP PAUL BRYANT,

333rd JUDICIAL DISTRICT

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Defendants’ Special Appearance and Plea to the Jurisdiction

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Defendants the City of Houston (“City”), and Annise D. Parker (“Parker”), in

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her official capacity as former Mayor of the City of Houston, file their Special

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Appearance and, subject thereto, Plea to the Jurisdiction, and request that the

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Introduction and Summary

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Court dismiss all claims against them.

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The City and former Mayor Parker are entitled to dismissal of all claims in

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this case for lack of personal and subject matter jurisdiction. As of this date,

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plaintiff has failed to serve the City or Parker. By statute, the citations expired,

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service cannot be effected now, and the Court never obtained jurisdiction of this
case or the Defendants. The case must be dismissed.
II.

Proper Service is Essential to Invoke the Court’s Jurisdiction

Plaintiff is challenging the adoption of new term limits for City elected
officials, approved by an overwhelming majority of Houston voters on November 3,
2015. The Election Code imposes strict mandatory burdens on a plaintiff who seeks

 to set aside ballot measures approved by a majority of citizen voters, as in this case.
An essential requirement of any election challenge is timeliness, including the
deadlines to file suit and to properly serve the contestees. See Wooley v. Sterrett, 387

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S.W.2d 734 (Tex. Civ. App.—Dallas 1965, no writ) (holding that in an election
contest, “time is of the essence.”) In this case, plaintiff has yet to serve the former
Mayor or the City with citation, therefore the Court lacks jurisdiction. See Landrum
v. Centennial Rural High Sch. Dist. No.2, 134 S.W.2d 353, (Tex. Civ. App.—Austin,

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1939, writ dism., judg. cor.) (holding that service in the time and manner prescribed

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by the Election Code is jurisdictional and is not subject to waiver). Proper timely

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service was required in order to give the Court jurisdiction. The case must be

Timeliness, Diligence and Jurisdiction

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III.

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dismissed.

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The Election Code mandates that a person must contest a ballot measure

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within a short period of time – “not later than the 30th day after the date the official

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result of the contested election is determined.” Tex. Elect. Code. § 233.006. The

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Election Code further mandates that the plaintiff must serve the defendants

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within 20 days of the date of the citation. Tex. Elect. Code § 233.008. (“The citation

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issued in an election contest must direct the officer receiving the citation to return it
unserved if it is not served within 20 days after the date of issuance”). A citation
that is not served within 20 days must be returned to the court unserved. There is no
statutory provision for re-issuance of the citation.

Defendants’ Special Appearance & Plea to the Jurisdiction

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 In this case, the citations were issued on November 25, 2015 and delivered to
plaintiff’s counsel for service.1 (Ex. A, copy of Court record of issuance date of
citation). Under the Texas Election Code, Plaintiff was required to serve the

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citations on both defendants by no later than December 15, 2015, or return the
citations to the Court unserved. Tex. Elect. Code § 233.008. Plaintiff did neither.
Nor did the citations include the required instructions to return the citation. It is
plaintiff’s responsibility to “see that service is properly accomplished.” Aguilar v.

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Stone, 901 S.W.2d 955 (Tex. App.—Houston 1995, reh’g overruled). The citations

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were invalid. As a result, this Court never obtained jurisdiction and the case must

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be dismissed.

No Service

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IV.

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Plaintiff cannot proceed because plaintiff never served the City or former

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Mayor Parker and because the attempted service was untimely. Plaintiff’s

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attempted service is void because the citation expired before service was attempted,

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neither Defendant was actually served and plaintiff was not diligent in attempting

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service.

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First, plaintiff’s only attempt at service was by certified mail and it was

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untimely – plaintiff did not accomplish service within 20 days as required by the
Texas Election Code. Tex. Elect. Code § 233.008. The green cards were signed (not
by the Defendants) on December 16, 2015. By law, the citations were void because
they had expired by the time the certified mail was delivered. See Lewis v. Lewis,

Defendants request that the Court take judicial notice of the court record of the docket, pleadings
and citations for this case.
1

Defendants’ Special Appearance & Plea to the Jurisdiction

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 667 S.W.2d 910, 911 (Tex. App.—Waco 1984, no writ.) In Lewis, the Court held that
a “citation becomes functus officio,” that is, it is “of no further force or authority” if
not served within the stated deadline after issuance. Id. The Lewis court analyzed

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the language of former Rule 101 of the Texas Rules of Civil Procedure, which
directed that citations shall be returned unserved if not served within 90 days.
Courts uniformly applied the language in former Rule 101 to deny jurisdiction when
a defendant was served with a citation older than 90 days. See also Kem v. Krueger,

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626 S.W.2d 143, 144 (Tex. App. – Fort Worth 1981, no writ). (“Service [of citation

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123 days after issuance] was void on its face; the trial court did not acquire

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jurisdiction of [defendant] …”). The language of former Rule 101 parallels that of

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the Texas Election Code citation requirement that the citation shall be returned

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unserved if not served within 20 days. Only the deadline differs. Thus, because

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service was not accomplished timely under the Election Code, the Court has not

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obtained jurisdiction.

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Second, the certified mail receipt was signed by Charles Hicks, who is neither

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a party, nor an agent for a party for service of process. (Ex. B, Affidavit of Charles

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Hicks). It is immediately clear on the face of the green cards that the signatures are

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of someone named “Charles,” not “Annise D. Parker.” Plaintiff was aware that
service was ineffective based on the green cards, yet did nothing to effect service in
order to invoke the jurisdiction of the Court. It is too late now.
Third, plaintiff did not exercise any diligence in attempting service. On
January 26, 2016, plaintiff provided copies of the green cards to the undersigned,

Defendants’ Special Appearance & Plea to the Jurisdiction

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 contending that the Defendants had been served. In response, the undersigned sent
an email that same day to plaintiff’s counsel with a copy of relevant authority—the
case, Southwestern Security Servs., Inc. v. Gamboa, 172 S.W.3d 90 (Tex. App.—El

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Paso 2005, no pet.) (holding that service by certified mail must be signed by the
addressee or its agent for service in order to be valid service). (Ex. C, email from
undersigned to plaintiff’s counsel). Immediately after receiving the undersigned’s
email correspondence, plaintiff chose to file the invalid returns of service with the

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Court on January 27, 2016, and decided to give the City Secretary a courtesy copy of

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the citations on January 27, 2016. If the courtesy copy of each citation was an

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attempt at service, it was not valid because the returns for those citations had

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already been returned to the Court with invalid service, and because the citations

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had long ago expired. Neither the original citations served on the wrong person, nor

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the courtesy copies given to the City Secretary are validly served citations.

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Finally, service on former Mayor Parker cannot be accomplished by serving

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“the Mayor Clerk Secretary or Treasurer” as stated on the citation. The citation

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requested by plaintiff for Mayor Parker was invalid ab initio because it instructed

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Mayor Parker to be served “by serving the Mayor Clerk Secretary or Treasurer.”

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(Ex. D, copy of citation). Section 17.024 of the Texas Civil Practice & Remedies Code
provides that citation may be served on the mayor, clerk, secretary or treasurer, “in
a suit against an incorporated city, town, or village.” It does not provide that the
clerk, secretary or treasurer is an agent for service on the Mayor.

Defendants’ Special Appearance & Plea to the Jurisdiction

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 There is no excuse for Plaintiff’s indifference and delay in regard to service
under the Election Code. Plaintiff is represented by five attorneys from four
different law firms, none of whom is a stranger to the courthouse or legal

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proceedings. In addition, neither the Mayor nor the City of Houston is difficult to
locate for service of process. The office of the City Secretary was open during normal
business hours during the twenty days after the citations were issued -- just blocks
away from the District Clerk’s office where the lawsuit was filed. Even a single

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attempt to serve Defendants in person at the City Secretary’s office before

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December 15, 2015, would have accomplished timely service. The Election Code

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requires due diligence for service of process. Under the circumstances, the delay in

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service conclusively demonstrates a striking and unreasonable lack of diligence. The

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Court has no jurisdiction. See Bell v. Harrison, 550 S.W.2d 369, 371 (Tex. App.—

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Dallas 1977, no writ) (holding that case was properly dismissed because contestant

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did not use reasonable diligence when he attempted personal service one time,

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unsuccessfully, and failed to make any further attempt to serve the mayor).

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Plaintiff did not comply with the Texas Election Code. The citations were void

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after December 15, 2015, and were not properly served. The statute mandated that

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the citations had to be served within 20 days or returned to the Court unserved.
“[N]o other service than that specified [by the Election Code] will suffice to give the
court jurisdiction to entertain the contest or suit.” Landrum v. Centennial Rural
High Sch. Dist. No. 2, 134 S.W.2d 353, 354 (Tex. Civ. App.—Austin 1939, writ
dism., judg. cor.). Plaintiff cannot avoid the dismissal of this case by filing the

Defendants’ Special Appearance & Plea to the Jurisdiction

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 untimely returns of citation with the Court. This Court does not have jurisdiction
and the case must be dismissed.
V.

No Personal or Subject Matter Jurisdiction

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This case should be dismissed for lack of jurisdiction. See City of Waco v.
Kirwan, 298 S.W.3d 618, 621 (Tex. 2009). “In deciding a plea to the jurisdiction, a
court may not weigh the claims’ merits but must consider only the plaintiffs’
pleadings and the evidence pertinent to the jurisdictional inquiry.” County of

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Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). In this case, the citations show

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on their face that they were not served within 20 days, affirmatively negating the

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Court’s jurisdiction. No amendment would cure the defect. See Kirwan, 298 S.W.3d

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at 621-622.

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“[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts,

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we consider relevant evidence submitted by the parties when necessary to resolve

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the jurisdictional issues raised, even where those facts may implicate the merits of

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the cause of action.” Kirwan, 298 S.W.3d at 621. (internal quotations omitted). “If

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that evidence creates a fact issue as to the jurisdictional issue, then it is for the fact-

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finder to decide. However, if the relevant evidence is undisputed or fails to raise a

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fact question on the jurisdictional issue, the trial court rules on the plea to the
jurisdiction as a matter of law.” Id.
The Court has no jurisdiction except as provided by the Texas Election Code.
In other words, jurisdiction is determined by the mandatory provisions of Chapter
233 of the Texas Election Code, entitled “Contest on Measure.” Tex. Elect. Code §

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 233.001. “The action being a special proceeding, it is necessary that the record
affirmatively show the prescribed requisites by which the district court becomes
vested with active jurisdiction thereof.”

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Prior to 1986, the Election Code required that the defendants receive written
notice within 30 days. In 1996, the statute was amended, including changing from
the “notice” requirement to a service of citation requirement. The current
mandatory requirement of the Election Code is that the citation shall be served

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within 20 days of its issuance or it shall be returned unserved. Tex. Elect. Code §

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233.008. Thus, the legislature mandated a short time period for service and

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prohibited service of the citation more than 20 days after its issuance. Just as the

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earlier “notice” requirement was long recognized to invoke the court’s jurisdiction,

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so too is service necessary to invoke the court’s jurisdiction. “In the absence of

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notice, it has been repeatedly held that the District Court acquired no jurisdiction of

(citations omitted).

Personal Jurisdiction Cannot be Waived.

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VI.

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such contest.” Maddox v. Comm. Ct of Palo Pinto Cnty., 222 S.W.2d 475, 476 (1949)

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This motion serves to resolve the case by dismissal rather than have the case

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continue to linger on the docket when there has been, and can be, no service. The
Special Appearance procedure and jurisdictional challenge is founded in the
mandatory provisions of the Election Code that (1) voids a citation after 20 days and
(2) precludes the entry of default judgments. Tex. Elect. Code §§ 233.008 and
221.004 (“A default judgment may not be rendered in an election contest.”). Thus

Defendants’ Special Appearance & Plea to the Jurisdiction

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 one way to resolve the case when the plaintiff served the wrong person (in this case,
Mr. Hicks), is for the defendants to point out the defect by way of a special
appearance to obtain dismissal.

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Under the Election Code requirements prior to 1986, instead of service of a
citation within 20 days of its issuance, the plaintiff was required to give written
notice of the his intention to contest the election within 30 days. Landrum v.
Centennial Rural High Sch. Dist. No. 2, 134 S.W.2d 353, 355 (Tex. Civ. App.—

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Austin 1939, writ dism., judg. cor.). Defendants were entitled to challenge the

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untimely notice without submitting to jurisdiction. Id. “The contestees in a

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statutory election contest have no authority to waive such notice and/or service, and

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hence an appearance by answer does not imply such waiver nor authorize a

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presumption of the requisite notice and service. Adamson v. Connally, 112 S.W.2d

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287, 289-90 (Tex. Civ. App.—Eastland, 1937, reh. denied). (citations omitted).

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Similarly, Defendants do not waive the absence of service of process in this case.

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The Court must apply the time limits imposed by the Election Code. It has

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long been recognized that “[a]n election contest does not partake of the usual

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characteristics of the ordinary case in law or in equity.” Wooley v. Sterrett, 387

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S.W.2d 734, 737 (Tex. Civ. App.—Dallas 1965, no writ). As the Wooley court noted:
All courts are in accord in holding that an election contest is a
statutory proceeding in which statutory requirements must be met and
the contest can only be maintained when all of such statutory
requirements have been completely satisfied.

Defendants’ Special Appearance & Plea to the Jurisdiction

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 Id. (citations omitted). Without strict adherence to the requirements of the Texas
Election Code, an election contest, such as the one brought by plaintiff here, simply
cannot succeed.
Sovereign Immunity Bars Plaintiff’s Claims

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VII.

Because plaintiff did not follow the statutory requirements of the Election
Code, the Court does not have either personal or subject matter jurisdiction over
defendants. There is no waiver of governmental immunity under the circumstances.

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WHEREFORE, PREMISES CONSIDERED, Defendants the City of Houston

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and Annise D. Parker, in her official capacity as former Mayor of the City of

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Houston, respectfully request that the Court grant this special appearance and,

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subject thereto, plea to the jurisdiction to dismiss all of Plaintiff’s claims and causes

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of action in their entirety, and that the Court grant Defendants such other and

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further relief to which they may be justly entitled.

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Respectfully submitted,
DONNA EDMUNDSON
CITY ATTORNEY
JUDITH L. RAMSEY
CHIEF, GENERAL LITIGATION CENTER

/s/ Patricia L. Casey

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PATRICIA L. CASEY
Senior Assistant City Attorney
State Bar No.: 03959075
Tel: 832.393.6302
Fax: 832.393.6259
E-mail: pat.casey@houstontx.gov
MARY LUCILLE ANDERSON
Senior Assistant City Attorney
State Bar No.: 00793260

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 Tel: 832.393.
Fax: 832.393.6259
E-mail: mlucilleanderson@houstontx.gov
CITY OF HOUSTON LEGAL DEPARTMENT
900 Bagby, 4th Floor
Houston, Texas 77002

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Attorneys for Defendants
Annise D. Parker, Mayor, and
The City of Houston

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CERTIFICATE OF SERVICE

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I hereby certify that a true and correct copy of the above referenced pleading
was served in compliance with Tex. R. Civ. P. 21 and 21a, on February 8, 2015,
upon counsel of record for Plaintiff:
Rogelio Garcia
1317 Telephone Road
Houston, TX 77021

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Eric B. Dick
Joe Synoradzki
3701 Brookwoods Dr.
Houston, TX 77092
eric@dicklawfirm.com

Kevin Fulton
2855 Mangum Rd, Ste 413
Houston, TX 77092

/s/ Patricia L. Casey

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Patricia L. Casey

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Chris Carmona
PO Box 7137
Houston, TX 77248

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