IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
TEXAS LEAGUE OF UNITED LATIN
AMERICAN CITIZENS, et al.,
Plaintiffs,
v.
DAVID WHITLEY, et al.,
Defendants.

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. SA-19-CA-074-FB

AND
JULIE GARIBAY, et al.,
Plaintiffs,
v.
DAVID WHITLEY, et al.,
Defendants.

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. SA-19-CA-159-FB

AND
MOVE TEXAS CIVIC FUND, et al.,

§
§
Plaintiffs,
§
§
v.
§
§ CIVIL ACTION NO. SA-19-CS-171-FB
DAVID WHITLEY, et al.,
§
§
Defendants.
§
§
______________________________________________________________________________
SETTLEMENT AGREEMENT
______________________________________________________________________________

1

 I. PARTIES TO THE AGREEMENT
This settlement agreement and release of claims (the “Agreement”) is made by and between
all parties to the three cases (SA-19-CA-074-FB; SA-19-CA-159-FB; and SA-19-CA-171-FB) that
the Court consolidated by its February 22, 2019 Order, ECF No. 39, (the “Litigation”). The parties
to this Agreement include the following:
All plaintiffs in Civil Action No. SA-19-CA-074-FB (the “LULAC Plaintiffs”):
•
•
•

Texas League of United Latin American Citizens
National League of United Latin American Citizens
Julie Hilberg

All plaintiffs in Civil Action No. SA-19-CA-159-FB (the “Garibay Plaintiffs”):
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Julieta Garibay
Maria Yolisma Garcia
Lorena Tule-Romain
Abraham Josue Espinosa Flores
Viridiana Tule Carrizales
Efren Gomez
Elena Keane
Organization of Chinese Americans-Greater Houston
Jane Doe #3
Hilda Castillo
Southwest Voter Registration Education Project
Mi Familia Vota Educational Fund
La Union De Pueblo Entero, Inc.
Jane Doe #2
UnidosUS
Jane Doe #1
John Doe #1
Maria Felicitas Barbosa
Martine Hummel

All plaintiffs in Civil Action No. SA-19-CA-171-FB (the “MOVE Plaintiffs”):
•
•
•
•

MOVE Texas Civic Fund
JOLT Initiative
League of Women Voters of Texas
Nivien Saleh

2

 All officials named as defendants in all three consolidated cases (the “State Defendants”)
including:
•
•
•
•

Texas Secretary of State David Whitley
Texas Attorney General Ken Paxton
Texas Governor Greg Abbott
Texas Director of Elections Keith Ingram

In the remainder of this Agreement, the above parties to the consolidated cases are
collectively referred to as the “Parties.”
II. GENERAL STATEMENT OF PURPOSE
1. This Agreement is the result of discussions conducted among representatives of all the
Parties. The purpose of those discussions was to discuss resolution of the Litigation related to
Election Advisory 2019-02. Bona fide legal disputes and controversies exist among the Parties
regarding matters related to Election Advisory 2019-02 and the related data matching process. The
Parties, through their respective counsel, have conferred and agreed that these consolidated actions
should be settled without further delay and further expense. The Parties negotiated in good faith
and agree that this Agreement is an appropriate resolution of the claims alleged by the plaintiffs.
2. Section III of this Agreement sets forth a process to which the Parties have agreed,
subject to the limitations and reservation of rights set forth below, as a condition of settling
Plaintiffs’ claims. This process is intended to replace the process adopted and referenced in
Election Advisory 2019-02. The Parties agree that the goal of this process is to guide the Texas
Secretary of State in performing a list-maintenance procedure by matching DPS data regarding
potential non-U.S citizens to Texas’s voter registration database to assist counties in ensuring that
only eligible voters are registered to vote while minimizing the impact on naturalized citizens.
3. In return for the Secretary of State replacing the process adopted and referenced in
Election Advisory 2019-02, the plaintiffs agree to dismiss all of their claims with prejudice against
3

 all of the defendants and release the defendants from all liability related to Election Advisory 201902 as fully described below.
4. In consideration of the recitals set forth above, the mutual promises, agreements,
covenants, and provisions herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree that the Litigation shall
be fully and finally settled and compromised based on the following terms and conditions.
III. DETAILS OF AGREED MATCHING PROCESS
5. Section III of this Agreement outlines the understandings and agreements of the Parties
related to the agreed matching process to be utilized by the Secretary of State, consistent with the
purposes described in Section II.
6. The Secretary of State and the Plaintiffs engaged in negotiations in an attempt to improve
the process by which the Secretary of State will conduct list-maintenance activities using DPS
data. The Parties agree that the goal of this process is to guide the Texas Secretary of State in
performing a list-maintenance procedure by matching DPS data regarding potential non-U.S
citizens to Texas’s voter registration database to assist counties in ensuring that only eligible voters
are registered to vote while minimizing the impact on naturalized citizens.
Election Advisory 2019-02
7. Within five days of the entry of the order dismissing all three consolidated cases, the
Secretary of State will rescind Election Advisory 2019-02 and advise county voter registrars and
elections administrators to take no further action on any data files that the Secretary of State sent
them in connection with Election Advisory 2019-02. This includes the original data files provided
to county officials on January 26, 2019, and any subsequent data files sent in connection with
Election Advisory 2019-02 or Election Advisory 2019-03. For online counties and any offline

4

 counties using the dashboard, the Secretary of State will close as “resolved” any tasks his office
created in the TEAM database in connection with Election Advisory 2019-02. The Secretary of
State shall advise county voter registrars and elections administrators that any voter who received
a notice that their voter registration status was in question in connection with Election Advisory
2019-02 shall receive written notice that they are still registered to vote and that their voter
registration status is no longer in question, unless the voter has since contacted the registrar and
asked to be removed from the voter registration rolls, or unless there is some other basis for
investigating the eligibility of the voter.
New Superset
8. The Secretary of State will obtain from DPS a list of all individuals who are at least 18
years old and who hold a current (unexpired) driver’s license or personal identification card and
presented to DPS documents indicating non-U.S. citizenship at their last DPS visit in which they
were issued a new or renewed driver’s license or personal identification card. DPS verifies the
validity of documents indicating non-U.S. citizenship (lawful presence documents) through the
SAVE database at the time of the person’s DPS visit. These records will not utilize a match criteria
based on individuals who obtained a replacement driver’s license or personal identification card
or changed their personal information such as name or address before the expiration of their
existing driver’s license or personal identification card. The Secretary of State will not request—
and has never requested—that the DPS data disclosed to the Secretary of State as part of any nonU.S. citizen matching process contain the race or ethnicity of any individual.
9. The Secretary of State will match those DPS records with the voter registration database
using the following criteria:
a. Last Name (including Former Last Name on the Voter Record), First Name, and Full
Social Security Number (9 digits);
5

 b. Last Name (including Former Last Name on the Voter Record), First Name, and DPSIssued Driver License or Personal Identification Card Number; or
c. Last Name (including Former Last Name on the Voter Record), First Name, Last Four
Digits of the Social Security Number, and Date of Birth.
These criteria are used to maximize the likelihood that the individual identified in the DPS database
is the same individual identified in the TEAM database.
10. Utilizing this process, the Secretary of State will identify only currently registered
voters who registered to vote before they presented documents to a DPS office indicating non-U.S.
citizenship. That will be determined by comparing the effective date of a person’s voter registration
to the date on which DPS validated the person’s non-U.S. citizen lawful presence documents using
the SAVE database and issued the person’s current driver’s license or personal identification card
to that person. Because Texas law provides that voter registration does not become effective until
30 days after a voter submits a registration form, the matching process will include voters whose
effective date of registration is up to 30 days after the date on which they presented documents to
a DPS office indicating non-U.S. citizenship. Thus, the Secretary of State will send to county voter
registrars and elections administrators only the records of voters whose effective date of voter
registration is prior to, or no more than 30 calendar days after, the issuance date of the voter’s
current driver’s license or personal identification card for which he or she proved lawful presence
but not U.S. citizenship.
Weekly Updates
11. The Secretary of State may also obtain potential non-U.S. citizen data from DPS on a
weekly basis. The records will be limited to all individuals who are at least 18 years old and who
hold a current (unexpired) driver’s license or personal identification card and presented to DPS
evidence of non-U.S. citizenship (with lawful presence documentation that was verified through
the SAVE database by DPS) at their last DPS visit in which they were issued a new or renewed
6

 driver’s license or personal identification card in the previous week. This weekly data will not
include individuals who obtained a replacement driver’s license or personal identification card or
changed their personal information such as name or address before the expiration of their existing
driver’s license or personal identification card.
12. After receiving the weekly files from DPS, the Secretary of State will process the data
in the same manner as the procedures used for the superset data as explained in paragraphs 9 and
10 above. Thus, the Secretary of State will match the weekly DPS records with the voter
registration database using the three sets of criteria identified above and send to the county voter
registrars and elections administrators only the records of voters whose effective date of voter
registration is prior to, or no more than 30 calendar days after, the issuance date of the voter’s
current driver’s license or personal identification card for which he or she proved lawful presence
but not U.S. citizenship.
Daily Updates
13. DPS will send to the Secretary of State on a daily basis the record of any person who
was identified in the new superset or any weekly file provided to the Secretary of State as detailed
above and whose “U.S. Citizen” field changed from “No” to “Yes.” The Secretary of State will
then send those records that match a voter record to the relevant county voter registrars and
elections administrators within two business days. The Secretary of State shall continue the daily
update process for so long as the Secretary of State is utilizing the weekly DPS data update process
described above.
IV. IMPLEMENTATION OF NEW PROCESS
14. The Secretary of State will inform counsel for the plaintiffs of the total number of DPS
records provided to the Secretary of State pursuant to paragraph 8 above and the total number of

7

 voter records identified in the superset matching process detailed in paragraphs 9 and 10 above ten
days before sending those matching records to the county voter registrars and elections
administrators. The Secretary of State will inform counsel for the plaintiffs of the total number of
DPS records provided to the Secretary of State pursuant to paragraph 11 above and the total
number of voter records identified in the weekly matching process detailed in paragraph 12 above
three days before sending those records to the county voter registrars and elections administrators
for the first three batches of such data sent to the counties.
15. The Secretary of State agrees to maintain the number of matched records sent to county
voter registrars and elections administrators pursuant to paragraphs 10 and 12 above for a period
of two years from the date that the Secretary of State sends such records to the counties. The
Secretary of State also agrees to maintain the number of voters whose registration is canceled by
county voter registrars and elections administrators for (a) non-U.S. citizenship for a period of five
years; and (b) failure to respond to a notice within 45 days of the counties receiving the names of
the voters sent pursuant to the agreed matching process for a period of two years from the date of
cancellation. The parties agree that the number reflected in subsection (b) is over-inclusive and
may not accurately reflect the number of voters canceled as a result of the agreed matching process.
This paragraph is not intended to describe the full responsibilities of the Secretary of State to
maintain list maintenance documents pursuant to the National Voter Registration Act.
16. The Secretary of State will create new written training material that it will provide to
the county voter registrars and elections administrators detailing how the DPS data was compiled
and compared against the voter registration database. The Secretary of State will provide the
counties with a new election advisory that replaces Advisory 2019-02 and accompanies the initial
release of the superset data. That training material and advisory will advise county voter registrars

8

 and elections administrators to treat these records as weak matches and that they may not
immediately cancel any voter’s registration. The training material and advisory will advise the
county voter registrars and elections administrators that they may investigate whether a voter is
currently eligible for registration in the county using any lawful means at their disposal. The
Secretary of State will provide guidance on some of the means that may be available for counties
to investigate voter eligibility. Pursuant to Section 16.033 of the Texas Election Code, if the voter
registrar has a reason to believe that the person is no longer eligible for registration, the registrar
shall send a notice of examination, as described in paragraph 17, to the person indicating that the
voter’s registration status is being reviewed by the registrar. The Secretary of State may advise the
counties that, based on the refinement of the DPS data and the strict matching criteria that the
Secretary of State is utilizing to generate an identity match, it is the Secretary of State’s position
that a voter’s presence on the list of matches provides a county with reason to believe that the
identified voter is no longer eligible for registration if the county’s independent investigation does
not demonstrate that the individual is a U.S. citizen. The Secretary of State will advise the counties
on the acceptable ways in which a voter can prove U.S. citizenship after receiving a notice of
examination. That includes by presenting a copy in the manner described in paragraph 17 of a U.S.
birth certificate or a Consular Report of Birth Abroad of a Citizen of the United States issued by
the United States Department of State, U.S. passport, certificate of naturalization, or certificate of
naturalization of the voter’s parent (along with the voter’s foreign birth certificate) that allowed
the voter to become a U.S. citizen while he or she was a minor. The notice also informs voters of
their right to request a hearing to challenge their cancellation under Texas Election Code, sections
16.061-16.066. The Secretary of State will advise the counties that voters whose registration is
canceled after being sent a notice of examination but later prove their U.S. citizenship at the polling

9

 place or to the voter registrar shall be reinstated (as opposed to re-registered) immediately as
permitted by Texas Election Code Section 16.037.
17. The Secretary of State will post a new form on its website, titled “Notice to Registered
Voter for Proof of Citizenship,” exclusively for notices of examination that voter registrars would
issue resulting from the matching process described in this Agreement. A copy of that Notice is
attached as Exhibit A to this Agreement. The updated notice addresses concerns raised by the
Court regarding the existing notice (Form BW1-12), to the extent permitted by federal and state
law, including informing voters that they can provide proof of U.S. citizenship by personal
delivery, mail, facsimile, electronic mail, or any other method of transmission. The notice shall be
promulgated in all languages required in Texas jurisdictions under Chapter 272 of the Texas
Election Code and Section 203 of the Voting Rights Act, 52 U.S.C. § 10503.
18. The Plaintiffs do not concede that Tex. Elec. Code § 16.033 as currently written and
enforced by the Secretary of State complies with the requirements of the National Voter
Registration Act and expressly reserve the right to bring suit under the NVRA for claims arising
out of Tex. Elec. Code § 16.033 other than those expressly disclaimed herein as set forth with
limitations and reservation in paragraph 28.
V. ADDITIONAL TERMS AND CONDITIONS
19. This Agreement does not preclude the Secretary of State from advising county voter
registrars and elections administrators to determine the eligibility of a voter who was mistakenly
registered due to a clerical error by the county, including any registrants who indicated they were
not U.S. citizens on their voter registration application but were nevertheless registered to vote by
the county.

10

 20. Nothing in this Agreement shall prevent the Secretary of State from reducing the impact
of list maintenance on naturalized citizens by obtaining verifiable information relating to a voter’s
U.S. citizenship status from a federal governmental entity, including through the U.S. Department
of Homeland Security’s Systematic Alien Verification for Entitlements Program, and providing
such information to county voter registrars and elections administrators for examination of voter
eligibility. Nothing in this Agreement shall be construed to waive, release, or discharge any claim
Plaintiffs have or may have in the future over such newly adopted procedures, or any procedures
or list maintenance procedures not explicitly described herein, under federal or state law.
21. This Agreement applies only to how the Secretary of State will match data from DPS
regarding potential non-U.S. citizens with Texas’s voter registration database based on the manner
in which DPS currently collects data about U.S. citizenship. This Agreement does not affect or
limit how the Secretary of State may use any other data obtained from DPS. This Agreement does
not affect or limit how the Secretary of State may use DPS data regarding potential non-U.S.
citizens if DPS changes its methods of collecting data regarding U.S. citizenship. This Agreement
does not affect or limit the Secretary of State’s ability to assist counties in identifying non-U.S.
citizen voters through any other means or to conduct any other type of list maintenance on Texas’s
voter rolls. Nothing in this Agreement shall be construed to waive, release, or discharge any claim
Plaintiffs have or may have in the future over any list maintenance procedure not explicitly
described herein, including any use of DPS data regarding potential non-U.S. citizens collected
through any other method other than that described herein, or any other process or procedure used
by the Secretary of State to assist counties in identifying non-U.S. citizens on the voter registration
rolls.

11

 22. This Agreement does not supersede, and is not intended to supersede, any of the
defendants’ obligations under federal or state law, whether such obligations exist now or at any
time while this Agreement is effective. If Defendants later assert that any such federal or state law
obligations require Defendants to modify the list maintenance procedures outlined herein,
Plaintiffs reserve the right to bring any claim under federal or state law challenging such
modifications.
23. Nothing in this Agreement affects the authority or ability of the Texas Attorney General
to investigate and prosecute acts of voter fraud over which the Attorney General has jurisdiction,
nor does it affect the rights, if any, of the Plaintiffs to challenge future investigations and
prosecutions, if any.
24. Nothing in this Agreement, or any action taken under this Agreement, is an admission
of liability—nor should it be interpreted as an admission of liability—by any of the defendants, or
by any current or former employee, agent, or representative of the defendants.
25. If there is cause to believe that a breach of this Agreement has occurred, the Parties
agree that all claims of breach shall be adjudicated through a new lawsuit brought in state or federal
court in the Western District of Texas (San Antonio Division).
26. The Secretary of State will pay the plaintiffs a total of $450,000 for the plaintiffs’ fees
and cost incurred in the litigation of this case through checks payable to Brazil and Dunn LLP.
The plaintiffs shall provide the Secretary of State with its IRS Form 1099 for the payee, and the
Secretary of State shall make payment on or before September 5, 2019. The Parties agree that other
than the payment of the $450,000, each party will bear its own fees and costs incurred in this
Litigation.

12

 27. The Parties agree to file joint motions to dismiss all of the Plaintiffs’ claims pursuant
to Federal Rule of Civil Procedure 41(a)(2) within three calendar days of the effective date of this
Agreement. The Parties understand and agree that the enforceability and validity of this Agreement
are expressly conditioned upon entry of an order by the United States District Court for the Western
District of Texas, San Antonio Division, dismissing all of the plaintiffs’ claims against all of the
defendants in all of the consolidated cases in their entirety with prejudice.
28. The plaintiffs hereby knowingly and voluntarily agree to fully, finally, and forever
unconditionally release, acquit, and discharge all of the defendants, their agents and employees,
including their attorneys and former employees (the “Releasees”), from any and all debts,
demands, actions, causes of action, suits, accounts, covenants, contracts, agreements, damages,
losses, expenses (including attorneys’ fees and costs incurred), claims or rights under any and all
federal and state laws, and any and all claims, demands and liabilities whatsoever of every name
and nature, both in law and in equity, whether known or not, which the plaintiffs now have or ever
had (including any claims in relation to this Litigation under the National Voter Registration Act)
asserted in this Litigation or related to Election Advisory 2019-02 or the process described in
paragraphs 7 through 13 against the defendants and Releasees, up to and including the date the
Parties sign this Agreement. Notwithstanding the foregoing, the plaintiffs may bring an action to
enforce the provisions of this Agreement as provided for in paragraph 25. The Plaintiffs agree to
withdraw any outstanding NVRA notices related to Election Advisory 2019-02. Notwithstanding
the foregoing, nothing shall preclude Plaintiffs from making any future request for documents to
which they are entitled under the NVRA related to the list maintenance procedures described in
this Agreement or from bringing an action related to such requests for documents. Nothing in this
Agreement prevents the plaintiffs or their counsel from bringing an action against the Secretary of

13

 State if data, methodological, or other systemic limitations cause the lists generated by the
procedures outlined herein to include registered voters who did not submit documents establishing
non-U.S. citizenship to DPS after their date of voter registration.
29. The individuals whose signatures are affixed to this Agreement in a representative
capacity represent and warrant that they are authorized to execute this Agreement on behalf of,
and to bind, the entity on whose behalf the signature is affixed.
30. The Parties acknowledge they have had the right to consult with an attorney before
signing this Agreement. The Parties represent and warrant they have read this Agreement and
reviewed it with their counsel, and further represent and warrant that they have executed this
Agreement of their own free will and accord without further representation of any kind or character
not expressly set forth herein.
31. This Agreement shall be construed as if all Parties jointly prepared it, and any
uncertainty or ambiguity in this Agreement shall not be interpreted against any one Party.
32. This Agreement contains the entire understanding of the Parties hereto, supersedes any
and all prior agreements or understandings, statements, promises, or inducements contrary to the
terms of this Agreement, and shall not be amended except by written instrument expressly referring
to this Agreement and signed by all of the Parties hereto.
33. This Agreement is binding on the Parties, their successors in office, employees,
representatives, delegates, agents, assigns, and all persons acting on their behalf, to the extent
permitted by law or required by this Agreement.
34. This Agreement may be executed in counterparts, each of which shall constitute an
integrated and enforceable whole.
[Remainder of page left intentionally blank. Signature page follows.]

14

 IN WITNESS WHEREOF, the undersigned, having represented and warranted their
authority to enter into and execute this Agreement, have executed this Agreement effective as of
the last date written below.

__________________________________________
[Signatory for the LULAC Plaintiffs]

_________________________
DATE

__________________________________________
[Signatory for the Garibay Plaintiffs]

_________________________
DATE

__________________________________________
[Signatory for the MOVE Plaintiffs]

_________________________
DATE

__________________________________________
[Signatory for the Texas Secretary of State]

_________________________
DATE

__________________________________________
[Signatory for the Texas Attorney General]

_________________________
DATE

__________________________________________
[Signatory for the Texas Governor]

_________________________
DATE

__________________________________________
[Signatory for the Texas Director of Elections]

_________________________
DATE

15

 EXHIBIT A

[COUNTY LETTERHEAD]
_____________________ County Voter Registrar
Mailing Address
Physical Location
Phone Number
Fax Number
Email Address
Website
TDD/TTY Phone
NOTICE TO REGISTERED VOTER FOR PROOF OF CITIZENSHIP
Dear Voter:
As the voter registrar for ___________ County, I am writing to notify you of important information
regarding your voter registration.
You are currently registered to vote in this county. We have received information from the Texas
Secretary of State reflecting that you might not be a United States citizen. The Texas Department
of Public Safety’s records show that the most recent time you obtained a Driver License or Personal
Identification Card, you indicated that you were not a United States citizen. Although you can
obtain a Driver License or Personal Identification Card as a non-United States citizen, only United
States citizens are eligible to vote.
To maintain your active voter registration status, please provide proof that you are a United States
citizen. Proof of United States citizenship can be established by presenting a copy of any of the
following documents:
• U.S. birth certificate or a Consular Report of Birth Abroad of a Citizen of the United States
issued by the United States Department of State;
• United States passport;
• Certificate of Naturalization or Certificate of Citizenship; or
• Your parent’s Certificate of Naturalization along with your birth certificate if you became
a U.S. citizen as a result of your parent’s naturalization.
There are several ways to provide proof of U.S. citizenship to my office. You can deliver it by
hand, or you can send it by mail, fax, electronic mail, or any other method of transmission. My
office’s contact information is listed at the top of this letter.
Please provide proof of U.S. citizenship within thirty (30) days from the date of this letter. If
we do not receive a response from you within thirty (30) days, your voter registration will be
cancelled. In the event that your registration is cancelled, you can still be immediately reinstated
by providing proof of U.S. citizenship to my office or at your polling location, even if the thirty
(30)-day period has already passed. You may also request a hearing to challenge your cancellation,
even if you do not possess one of the above forms, by contacting my office.
If you have any questions regarding this notice or your voter registration, please contact my office
at _______________ (phone number).

___________________________________________
Signature of Voter Registrar

____________________
Date