No.

14-20-00358-CV

In the Court of Appeals for the Fourteenth Judicial District

Houston, Texas
State of Texas,
Intervenor-Appellant,
v.
Texas Democratic Party, et al.,
Appellees.

On Appeal from the

201st Judicial District Court, Travis County

APPELLANT’S BRIEF FOR THE STATE OF TEXAS

Ken Paxton Kyle D. Hawkins

Attorney General of Texas Solicitor General

Jeffrey C. Mateer Matthew H. Frederick

First Assistant Attorney General Deputy Solicitor General

Ryan L. Bangert Lanora C. Pettit

Deputy First Assistant Assistant Solicitor General
Attorney General State Bar No. 24115221
lanora.pettit@oag.texas.gov
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697 Counsel for Intervenor-Appellant

Oral Argument Requested

 Identity of Parties and Counsel
Intervenor-Appellant:
State of Texas, by and through its Attorney General

Appellate and Trial Counsel for Intervenor-Appellant:

Ken Paxton
Jeffrey C. Mateer
Ryan L. Bangert
Kyle D. Hawkins
Matthew H. Frederick
Lanora C. Pettit (lead counsel)
Anna Marie Mackin
Michael R. Abrams
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
lanora.pettit@oag.texas.gov

Appellees:
Texas Democratic Party
Gilberto Hinojosa, in his capacity as Chairman of the Texas Democratic Party
Joseph Daniel Cascino
Shanda Marie Sansing
Plaintiffs

Zachary Price
League of Women Voters of Texas
League of Women Voters of Austin-Area
MOVE Texas Action Fund
Workers Defense Action Fund
Plaintiff-Intervenors

Appellate and Trial Counsel for Appellees:

Chad W. Dunn
Brazil & Dunn LLP
4407 Bee Caves Road, Suite 111
Austin, Texas 78746

i
chad@brazilanddunn.com

K. Scott Brazil
Brazil & Dunn LLP
13231 Champion Forest Drive, Suite 406
Houston, Texas 77069
scott@brazilanddunn.com

Dicky Grigg
Law Office of Dicky Grigg, P.C.
4407 Bee Caves Road, Suite 111
Austin, Texas 78746
dicky@grigg-law.com

Martin Golando
The Law Office of Martin Gollando, PLLC
N. Saint Mary’s, Suite 700
San Antonio, Texas 78205
martin.golando@gmail.com

Attorneys for Plaintiffs

Joaquin Gonzalez
Mimi Marziani
Rebecca Harrison Stevens
Texas Civil Rights Project
1405 Montopolis Dr.
Austin, Texas 78741
joaquin@texascivilrightsproject.org

Edgar Saldivar
Thomas Buser-Clancy
Andre Segura
ACLU Foundation of Texas Inc.
P.O. Box 8306
Houston, Texas 77288
esaldivar@aclutx.org

ii
Sophia Lin Lakin
Dale E. Ho
American Civil Liberties Union
125 Broad Street, 18th Flr
slakin@aclu.org

Defendant
Dana Debeauvoir

Counsel for Defendant

Sherine Thomas
Leslie Dippel
Counsel for Travis County

iii
 Table of Contents
Page
Identity of Parties and Counsel ................................................................................. i 
Index of Authorities ................................................................................................ vi 
Statement of the Case ........................................................................................... xix 
Statement Regarding Oral Argument ..................................................................... xx 
Issues Presented .................................................................................................... xxi 
Introduction ............................................................................................................. 1 
Statement of Facts ................................................................................................... 2 
I.  Voting by Mail in Texas.............................................................................. 2 
II.  The 2020 Election and COVID-19 ............................................................. 4 
III.  This Lawsuit ............................................................................................... 8 
Summary of the Argument ..................................................................................... 12 
Standard of Review ................................................................................................. 13 
Argument ............................................................................................................... 14 
I.  Plaintiffs Lack Standing ............................................................................ 14 
A.  Individual voters lack standing ............................................................ 15 
1.  Plaintiffs allege only a generalized fear of contagion, which
is common to the entire voting public ..........................................16 
2.  Plaintiffs’ alleged harms are neither traceable to the named
defendant’s actions nor redressable by this Court....................... 21 
B.  Organizational Plaintiffs lack standing ............................................... 22 
1.  Organizational Plaintiffs lack standing in a representative
capacity ....................................................................................... 23 
2.  Texas courts do not recognize standing based on harm to
the organization itself .................................................................. 24 
II.  Plaintiffs Seek an Impermissible Advisory Opinion Regarding
Claims that Are Not Yet Ripe ................................................................... 26 
A.  Plaintiffs’ claims are unripe because they are based on
contingencies that have not yet come to pass ..................................... 27 
B.  Plaintiffs seek an advisory opinion because they assume
contingencies that may never occur ................................................... 32 

iv
 III.  Because Plaintiffs Have Not Pleaded a Violation of the Election
Code, They Have Established Neither Jurisdiction Nor
Entitlement to a Temporary Injunction .................................................... 33 
A.  Plaintiffs have pointed to no violation of the Election Code .............. 33 
B.  Without a violation of the Election Code, Plaintiffs cannot
overcome sovereign immunity ........................................................... 38 
1.  By its express terms, Election Code section 273.081 only
provides a remedy for violations of the Election Code ................ 39 
2.  The UDJA does not fill the gap and allow a plaintiff to seek
a declaration of what a statute means .......................................... 41 
3.  There is no jurisdiction under the ultra vires and
constitutional-violation doctrines ................................................ 42 
C.  Without a violation of the Election Code, Plaintiffs cannot
establish the elements of a temporary injunction ............................... 44 
IV.  The Temporary Injunction Is Impermissibly Overbroad .......................... 45 
A.  The temporary injunction does not satisfy Rule 683 .......................... 46 
B.  The State’s intervention did not give the trial court
jurisdiction or grounds to extend any relief beyond Travis
County ............................................................................................... 47 
C.  Plaintiffs offered no evidence to support relief beyond Travis
County ................................................................................................ 51 
Prayer ..................................................................................................................... 52 
Certificate of Service.............................................................................................. 53 
Certificate of Compliance ...................................................................................... 53 

v
 Index of Authorities

Page(s)
Cases

Aaron Rents, Inc. v. Travis Cent. Appraisal Dist.,

212 S.W.3d 665 (Tex.App.–Austin 2006, no pet.) ............................................ 43

ACORN Fair Hous. v. LeBlanc,

211 F.3d 298 (5th Cir. 2000) ............................................................................. 25

Alamo Express, Inc. v. Union City Transfer,

309 S.W.2d 815 (1958) ...................................................................................... 43

Alexander Dubose Jefferson & Townsend LLP v. Chevron-Phillips Chem. Co.,

540 SW.3d 577 (Tex. 2018) ............................................................................... 49

Andrade v. NAACP of Austin,

345 S.W.3d 1 (Tex. 2011) .................................................................. 16, 17, 18, 20

Ass’n for Retarded Citizens of Dall. v.

Dall. Cty. Mental Health & Mental Retardation Ctr. Bd. of Trustees,
19 F.3d 241 (5th Cir. 1994) ................................................................................ 23

Baron v. Tex. Historical Comm’n,

411 S.W.3d 161 (Tex. App—Austin 2013, no pet.) ...................................... 17, 19

Bexar-Medina-Atascosa Ctys. Water Control & Improvement Dist. No. 1

v. Medina Lake Prot. Ass’n,
640 S.W.2d 778 (Tex. App—San Antonio 1982, writ ref’d n.r.e.) ................... 27

Blanchette v. Conn. Gen. Ins. Corp.,

419 U.S. 102 (1974) ........................................................................................... 27

Bland ISD v. Blue,

34 S.W.3d 547 (Tex. 2000) ............................................................................... 14

Block Distrib. Co. v. Rutledge,

488 S.W.2d 479 (Tex. App.—San Antonio 1972, no writ)................................ 21

vi
Bonham State Bank v. Beadle,
907 S.W.2d 465 (Tex. 1995) .............................................................................. 27

Branaum v. Patrick,
643 S.W.2d 745 (Tex. App.—San Antonio 1982, no writ) ................................ 34

Bridgeport ISD v. Williams,

447 S.W.3d 911 (Tex. App. 2014—Austin, no pet.) ..................................... 13, 33

Brown v. De La Cruz,
156 S.W.3d 560 (Tex. 2004) ............................................................................. 40

Brown v. Todd,
53 S.W.3d 297 (Tex. 2001)................................................................ 14, 15, 16, 18

Burdick v. Takushi,
504 U.S. 428 (1992) ....................................................................................... 1, 19

Butnaru v. Ford Motor Co.,

84 S.W.3d 198 (Tex. 2002) ............................................................................... 45

Cadena Commercial USA Corp. v. TABC,

518 S.W.3d 318 (Tex. 2017) .............................................................................. 38

Calif. Prod., Inc. v. Puretex Lemon Juice, Inc.,

334 S.W.2d 780 (Tex. 1960) ............................................................................. 33

Chambers-Liberty Ctys. Navigation Dist. v. State,

575 S.W.339 (Tex. 2019) ................................................................................... 14

City of Dallas v. England,

846 S.W.2d 957 (Tex. App.—Austin 1993, writ dism’d w.o.j.) ........................ 39

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) .................................................................. 43, 49, 50

City of El Paso v. Tom Brown Ministries,

505 S.W.3d 124 (Tex. App.—El Paso 2016, no pet.) ............................. 19-20, 40

City of Galveston v. State,

217 S.W.3d 466 (Tex. 2007) ............................................................................. 50

vii
City of Green Bay v. Bostelmann,
No. 20-C-479, 2020 WL 1492975 (E.D. Wis. Mar. 27, 2010) ............................ 17

City of Houston v. Savely,

708 S.W.2d 879
(Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.) .................................. 49

City of San Antonio v. Pollock,

284 S.W.3d 809 (Tex. 2009).............................................................................. 31

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)........................................................................................... 22

Colvin v. Ellis Cty. Republican Exec. Comm.,

719 S.W.2d 265 (Tex. App.—Waco 1986, no writ) ........................................... 24

Corpus Christi People’s Baptist Church v. Nueces Cty. Appraisal Dist.,

904 S.W.2d 621 (Tex. 1995) .............................................................................. 48

Daimler Chrysler Corp. v. Inman,

252 S.W.3d 299 (Tex. 2008) .................................................................. 16, 17, 20

Dall. Anesthesiology Assocs., P.A. v. Tex. Anesthesia Grp., P.A.,

190 S.W.3d 891 (Tex. App.—Dallas 2006, no pet.) ..................................... 45, 51

Dall. Area Rapid Transit v. Whitley,

104 S.W.3d 540 (Tex. 2003) ............................................................................. 38

DPS v. Salazar,
304 S.W.3d 896 (Tex. App.—Austin 2009, no pet.)......................................... 44

Draper v. Healey,
827 F.3d 1 (1st Cir. 2016) .................................................................................. 24

Farmers Tex. Cty. Mut. Ins. Co. v. Beasley,

No. 18-0469, 2020 WL 1492412 (Tex. Mar. 27, 2020) ...................................... 13

Fin. Comm’n of Tex. v. Norwood,

418 S.W.3d 533 (Tex. 2014) ................................................................... 18, 20, 32

Fireman’s Ins. Co. of Newark v. Burch,

442 S.W.2d 331 (Tex. 1968) ......................................................................... 32, 33

viii
Fort Worth Transp. Auth. v. Rodriguez,
547 S.W.3d 830 (Tex. 2018).............................................................................. 35

Freedom Commc’ns, Inc. v. Coronado,

372 S.W.3d 621 (Tex. 2012) ............................................................................... 13

Frey v. DeCordova Bend Estates Owners Ass’n,

647 S.W.3d 246 (Tex. 1983) .............................................................................. 44

Fuentes v. Howard,
423 S.W.2d 420 (Tex. App.—El Paso 1967, writ dism’d) ................................ 33

Ga. Republican Party v. SEC,

888 F.3d 1198 (11th Cir. 2018) .......................................................................... 24

Garcia v. Kubosh,
377 S.W.3d 89 (Tex. App.—Houston [1st Dist.] 2012, no pet.)........................ 42

Good Shepherd Med. Ctr., Inc. v. State,

306 S.W.3d 825 (Tex. App—Austin 2010, no pet.) .......................................... 48

Grossman v. Wolfe,
578 S.W.3d 250 (Tex. App.—Austin 2019, pet. denied).................................... 13

Guarantee Mut. Life Ins. Co. v. Harrison,

358 S.W.2d 404 (Tex. App.—Austin 1962, writ ref’d n.r.e.)............................ 37

Guaranty Fed. Sav. Bank v. Horseshoe Operating Co.,

793 S.W.2d 652 (Tex. 1990) .............................................................................. 48

Harris Cty. Hosp. Dist. v. Tomball Reg’l Hosp.,

283 S.W.3d 838 (Tex. 2009) ............................................................................. 40

Havens Realty Corporation v. Coleman,

455 U.S. 363 (1982) ..................................................................................... 24, 25

Henry v. Cox,
520 S.W.3d 28 (Tex. 2017) ................................................................................ 13

Hollingsworth v. Perry,
570 U.S. 693 (2013) ............................................................................................ 15

ix
Holt v. Texas Department of Insurance,
No. 03-17-00758-CV, 2018 WL 6695725
(Tex. App.—Austin Dec. 20, 2018, pet. denied) .............................................. 41

Hotze v. White,
No. 01-08-00016-CV, 2010 WL 1493115
(Tex. App.—Houston [1st Dist.] 2010, pet. denied) ........................................ 18

Hunt v. Wash. State Apple Adver. Comm’n.,

432 U.S. 333 (1977) ........................................................................................... 23

In re DePinho,
505 S.W.3d 621 (Tex. 2016) (orig. proceeding) ................................................ 27

In re M.N.,
262 S.W.3d 799 (Tex. 2008) ............................................................................. 34

In re Marriage of J.B. and H.B.,

326 S.W.3d 654 (Tex. App.—Dallas 2010, orig. proceeding) ........................... 48

In re Motor Co.,
442 S.W.3d 265 (Tex. 2014) ............................................................................. 48

InterFirst Bank San Felipe, N.A. v. Pay Constr. Co.,

715 S.W.3d 640 (Tex. 1986) .............................................................................. 46

Interest of R.M.,
No. 05-18-01127-cv, 2019 WL 2266388
(Tex. App. Dallas May 24, 2019, pet. denied) .................................................. 48

Iranian Muslim Org. v. City of San Antonio,

615 S.W.2d 202 (Tex. 1981) .............................................................................. 46

Kelly v. Scott,
733 S.W.2d 312 (Tex. App.—El Paso 1987, no writ) ......................................... 34

Kilgore v. City of Lakeway,

No. 03-18-00598, 2020 WL 913051
(Tex. App.—Austin Feb. 26, 2020, no pet.) ..................................................... 18

x
Lance v. Coffman,
549 U.S. 437 (2007) ...........................................................................................16

Leland v. Brandal,
257 S.W.3d 204 (Tex. 2008) ............................................................................. 34

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................................................................16

McClane Co. v. Tex. Alcoholic Beverage Comm’n,

514 S.W.3d 871 (Tex. App.—Austin 2017, pet. denied) ..............................41, 42

McDonald v. Bd. of Election Comm’rs of Chi.,

394 U.S. 802 (1969) .......................................................................... 19, 33, 34, 37

McGee v. Grissom,
360 S.W.2d 893 (Tex. App.—Fort Worth 1962, no writ.) ................................ 34

Methodist Hosps. of Dall. v. Tex. Indus. Accident Bd.,

798 S.W.2d 651 (Tex. App—Austin 1990, writ dism’d w.o.j.) ......................... 45

Morath v. Lewis,
No. 18-0555, 2020 WL 1898537 (Tex. Apr. 17, 2020) ....................................... 15

Morrow v. Corbin,
62 S.W2d 641, 644 (Tex. 1933) ......................................................................... 32

NAACP v. City of Kyle,

626 F.3d 233 (5th Cir. 2010) ..................................................................24, 25, 26

Nootsie, Ltd. v. Williamson Cty. Appraisal Dist.,

925 S.W.2d 659 (Tex. 1996) ...............................................................................16

O’Cana v. Salinas,
No. 13-18-00563-CV, 2019 WL 1414021
(Tex. App.—Corpus Christi-Edinburg Mar. 29, 2019, pet. denied) ............ 30, 31

Office of Pub. Util. Counsel v. PUC,

878 S.W.2d 598 (Tex. 1994)................................................................................ 6

Okpalobi v. Foster,
244 F.3d 405 (5th Cir. 2001) ............................................................................. 20

xi
Patel v. Tex. Dep’t of Licensing & Regulation,
469 S.W.3d 69 (Tex. 2015) ............................................................................... 43

Patterson v. Planned Parenthood of Hous. & S.E. Tex., Inc.,

971 S.W.2d 439 (Tex. 1998) ................................................................... 26, 27, 32

Perry v. Del Rio,

66 S.W.3d 239 (Tex. 2001) .................................................................... 13, 24, 27

Ray v. Texas,
No. 2:06-cv-385, 2008 WL 8441630 (E.D. Tex. Oct. 31, 2006),
vacated on other grounds sub. nom.
Ray v. Abbott, 261 Fed. App’x 716 (5th Cir. 2008) ............................................ 33

Rea v. State,
297 S.W.3d 379 (Tex. App.—Austin 2009, no pet.) ......................................... 14

S. Tex. Water Auth. v. Lomas,

223 S.W.3d 304 (Tex. 2007) ............................................................................. 14

Salmon v. Lamb,
616 S.W.2d 296 (Tex. App.—Houston [1st Dist.] 1981, no writ)........................ 5

Shinogle v. Whitlock,
No. 18-0703, 2020 WL 855237 (Tex. Feb. 21, 2020) ........................................ 38

Spradlin v. Jim Walker Homes, Inc.,

34 S.W.3d 578 (Tex. 2000) ............................................................................... 35

State v. Naylor,
466 S.W.3d 783 (Tex. 2015) ........................................................................ 48, 50

State v. Sw. Bell Tel. Co.,

526 S.W.2d 526 (Tex. 1975) .............................................................................. 45

Steele Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ............................................................................................. 32

Storer v. Brown,
415 U.S. 724 (1974) ........................................................................................... 44

xii
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) .......................................................................................... 23

Tex. & P. Ry. Co. v. Gay,

26 S.W. 599 (1894) ............................................................................................ 21

Tex. Ass’n of Bus. v. City of Austin,

565 S.W.3d 425 (Tex. App—Austin 2018, no pet. h.) ................................ passim

Tex. Dep’t of Family & Protective Servs. v. Grassroots Leadership, Inc.,

No. 03-18-00261-CV, 2018 WL 6187433
(Tex. App.—Austin Nov. 28, 2018, no pet.) .................................................... 25

Tex. Dep’t of Ins. v. Tex. Ass’n of Health Plans,

No. 03-19-00185-CV, 2020 WL 1057769
(Tex. App.—Austin Mar. 5, 2020, no pet. h.) .................................................. 25

Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004) .............................................................................. 14

TxDOT v. City of Sunset Valley,

146 S.W.3d 637 (Tex. 2004) ............................................................................. 37

TxDOT v. Jones,
8 S.W.3d 636 (Tex. 1999) .................................................................................. 49

TxDOT v. Sefzik,
355 S.W.3d 618 (Tex. 2011) ................................................................... 41, 42, 43

Tex. Educ. Agency v. Hous. ISD,

03-20-00025-CV, 2020 WL 1966314
(Tex. App.—Austin Apr. 24, 2020, no pet. h.).................................................. 11

Tex. Health & Human Servs. Comm’n v. Advocates for Patient Access,
399 S.W.3d 615 (Tex. App.—Austin 2013, no pet.) .......................................... 47

Tex. Indigenous Council v. Simpkins,

No. 5:11-cv-315, 2014 WL 252024 (W.D. Tex. Jan. 22, 2014) .......................... 23

Tex. Parks & Wildlife Dep’t v. Sawyer Tr.,

354 S.W.3d 384 (Tex. 2011) .............................................................................. 41

xiii
Thiel v. Oakes,
535 S.W.2d 1 (Tex. App.—Houston [14th Dist.] 1976, no writ) ................. 22, 38

Town of Shady Shores v. Swanson,

No. 18-0413, 2019 WL 6794327 (Tex. Dec. 13, 2019) ....................................... 41

Trinity Settlement Servs. v. Tex. State Sec. Bd.,

417 S.W.3d 494 (Tex. App.—Austin 2013, pet. denied) .............................. 31, 42

Van Dyke v. Littlemill Ltd.,

579 S.W.3d 639 (Tex. App.—Houston [1st Dist.] 2019, no pet.) ................. 49, 51

VanderWerff v. Tex. Bd. of Chiropractic Examiners,

No. 03-12-00711-CV, 2014 WL 7466814
(Tex. App.—Austin Dec. 18, 2014, no pet.) ...................................................... 31

Waco ISD v. Gibson,

22 S.W.3d 849 (Tex. 2000)......................................................................... 26, 32

Walling v. Metcalfe,
863 S.W.2d 56 (Tex. 1993) .......................................................................... 44, 45

Warth v. Seldin,
422 U.S. 490 (1975) .......................................................................................... 20

Whitmore v. Arkansas,
495 U.S. 149 (1990) ........................................................................................... 18

Wichita Falls State Hosp. v. Taylor,

106 S.W.3d 692 (Tex. 2003) ....................................................................... 39, 40

Statutes and Rules

Tex. Civ. Prac. & Rem. Code
§ 6.001 ............................................................................................................... 11
ch. 37 ................................................................................................................... 8
§ 37.003............................................................................................................. 38
§ 51.014(a)(8) ..................................................................................................... 11
§ 51.014(b) ......................................................................................................... 11
§ 65.011 ........................................................................................................ 38, 39

xiv
Tex. Elec. Code
§ 31.003 ............................................................................................................... 4
ch. 64 .................................................................................................................. 2
§§ 82.001-.004 .................................................................................................... 2
§§ 82.002-.003.................................................................................................. 20
§ 82.002 ...................................................................................................... passim
§ 82.002(a) ........................................................................................... 1, 3, 35, 37
§ 82.002(b) ......................................................................................................... 3
§ 82.005 .............................................................................................................. 2
§ 83.002 .............................................................................................................. 4
§ 83.005 .............................................................................................................. 4
§ 86.001(a) ........................................................................................... 3, 4, 21, 47
§ 86.002(a) ......................................................................................................... 4
§ 86.006(a) .......................................................................................................... 4
§ 86.008 .............................................................................................................. 4
§ 86.009 .............................................................................................................. 4
ch. 102 ............................................................................................................... 22
§ 102.001(a) ...................................................................................................... 22
§ 172.003 ............................................................................................................. 4
§ 172.004(a) ........................................................................................................ 4
§ 273.081 ..................................................................................................... passim

Tex. Gov’t Code

§ 311.011 ............................................................................................................ 34
§ 311.034 ........................................................................................................... 38
§ 402.010(d) ..................................................................................................... 50
§ 418.001, et seq. .................................................................................................. 5
§ 418.011 ............................................................................................................. 6

Act of May 12, 1959, 56th Leg.,R.S., ch. 483, §6, 1959 Tex. Gen. Laws
1055, 1060 ......................................................................................................... 34

Act of May 13, 1985, 69th Leg., ch. 211, 1985 Tex. Gen. Laws 802 .......................... 3

Act of May 26, 1981, 67th Leg., R.S., ch. 301, § 1, 1981 Tex. Gen.
Laws. 854, 854 .................................................................................................... 3

Act of Oct. 30, 1935, 44th Leg., 2nd C.S., ch. 437, § 1, 1935 Tex. Gen.
Laws 1700 ...................................................................................................... 3, 36

xv
Tex R. Evid. 201(b)(2) ............................................................................................. 6

Tex. R. Civ. P. 683 ........................................................................................... 46, 47

Tex. R. Civ. P. 684 ................................................................................................. 46

Other Authorities

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts (2012) ................................... 34

Bill Analysis, Tex. S.B. 616, R.S., 69th Leg. (1985) .................................................. 3

Black’s Law Dictionary (10th ed. 2014) ................................................................. 46

Bryan A. Garner, Modern Legal Usage (2d ed. 1995) ............................................ 37

Catherine Kim, I Voted in Korea. This is What Democracy Can Look

Like in a Pandemic, Vox, (Apr. 17, 2020, 7:30 AM EDT)
https://www.vox.com/world/2020/4/17/21221786/coronavirus-
south-korea-election-voting-covid-19-pandemic-democracy ........................... 7-8

Charles A. Wright, et al.,

Federal Practice and Procedure (2d ed. 1984) .................................................. 27

Commission on Federal Election Reform,

Building Confidence in U.S. Elections (2005) ...................................................... 34

Douglas Laycock, Modern Remedies (3d ed. 2002)............................................... 50

DSHS Announces First Case of COVID-19 in Texas,

Texas Department of State Health Services (Mar. 4, 2020),
https://www.dshs.texas.gov/news/releases/2020/20200304.aspx ................... 4

Election Duties, Texas Secretary of State,

https://www.sos.state.tx.us/elections/voter/county.shtml (last
visited May 6, 2020) ........................................................................................... 4

Executive Order No. GA-16, 45 Tex. Reg. 2760 (2020) .................................... 5, 26

Executive Order No. GA-17, 45 Tex. Reg. 276 (2020) ...................................... 6, 26

Executive Order No. GA-18 (Apr. 27, 2020) ........................................................... 6

xvi
JoNel Aleccia, 60 Years in an iron lung: U.S polio survivor worries about
new global threat, NBC News, Nov. 30, 2013,
http://www.nbcnews.com/healthmain/60-years-iron-lung-us-
polio-survivor-worries-about-new-2D11641456 (describing
experience of someone who contracted polio in 1953) ...................................... 36

Kim J. Askew, Tex. Prac. Guide Civil Pretrial (2019) ............................................ 48

Mot. for Prelim. Inj. At 10, Texas Democratic Party v. Abbott, 5:20-CV-
00438-FB (W.D. Tex.), ECF No. 10 ................................................................ 46

New Oxford Am. Dictionary (3d ed. 2010) ................................................. 35, 36, 37

Office of the Governor of Texas, Proclamation (Mar. 18, 2020),

https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/pro
c03182020.pdf .................................................................................................... 7

Office of the Governor of Texas, Proclamation (Apr. 2, 2020),

https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/
proc04022020.pdf .............................................................................................. 7

Ryan Baasch, Reorganizing Organizational Standing,

103 Va. L. Rev. Online 18, 21-24 (2017) ....................................................... 24-25

Sidney Greenbaum, The Oxford English Grammar (1996) ............................... 35, 37

Staffan Darnolf, et al., Indelible Ink in Elections: Mitigating Risks of

COVID-19 Transmission While Maintaining Effectiveness,
International Foundation for Electoral Systems (Apr. 15, 2020),
https://www.ifes.org/news/indelible-ink-elections-mitigating-
risks-covid-19-transmission-while-maintaining-effectiveness ............................. 8

Tessa Berenson, Eric Holder: Here’s How the Coronavirus Should

Change U.S. Elections—For Good, Time (Apr. 14, 2020),
https://time.com/5820622/elections-coronavirus-eric-holder/ ........................ 8

Tex. Att’y Gen. Op. No. KP-0149 (2017) ........................................................ 28, 36

Texas Coronavirus Map and Case Count,

N.Y. Times (updated May 8, 2020, 8:27 A.M.E.T.) ........................................ 47

xvii
Texas Secretary of State, Election Advisory No. 2020-12 (March 18, 2020),
https://www.sos.state.tx.us/elections/laws/advisory2020-12.shtml ................. 7

Thirteenth Emergency Order Regarding the COVID-19 State of

Disaster, No. 20-9060 (Tex. Apr. 29, 2020) ..................................................... 29

xviii
 Statement of the Case
Nature of the Case: Plaintiffs sued the Travis County Clerk and Secretary of State
seeking a declaration interpreting section 82.002 of the Elec-
tion Code. CR.11. Plaintiffs asserted that, due to the corona-
virus outbreak, all Texas voters have a sickness or physical
condition that disables them from voting at the polls during
the 2020 election cycle. E.g. CR.10, 28-29. They sought de-
claratory and injunctive relief compelling the Travis County
Clerk to perform her duties consistent with their interpreta-
tion of the statute. CR.11, 44.

Course of Proceedings: After Plaintiffs non-suited the Secretary, CR.14-15, the State
intervened by and through its Attorney General to ensure con-
sistent application of its laws within Travis County, and it
filed a plea to the jurisdiction, CR.16-24. An additional indi-
vidual and four interest groups intervened, CR.27-47, and the
trial court held a temporary injunction hearing, 1RR.1-12.
Travis County did not oppose the entry of a temporary injunc-
tion, 2RR.137; only the State did, e.g., 2RR.151-59. Following
the hearing, Plaintiffs and Plaintiff-Intervenors asserted that
the injunction should apply to the State in an unspecified ge-
ographic area. Cf. CR.946-49.

Trial Court: 201st Judicial District Court, Travis County

The Honorable Tim Sulak

Trial Court Disposition: The trial court denied the State’s plea to the jurisdiction and
granted a temporary injunction pending trial. CR.958. That
order purports to bind not only Travis County, but also the
State and broad swaths of State actors from enforcing the
Election Code in an unspecified geographic area. CR.961.

xix
 Statement Regarding Oral Argument
This case involves important issues of first impression, implicating not only the

meaning of the Texas Election Code but also the separation of powers. For over a

century, Texas law has sought to ensure fair elections by requiring most voters to

appear at the polls unless they fall within a limited number of legislatively created

exceptions. Plaintiffs have sought,1 and the trial court has ordered, a system of uni-

versal mail-in ballots based on unsupported assumptions about a novel virus and a

faulty reading of a statute that has allowed the ill and infirm to vote by mail since
1935. The State respectfully suggests that oral argument will significantly aid the

Court in resolving the numerous complex issues presented by this case.

1
Plaintiffs and Plaintiff-Intervenors include three individual voters (“Individual
Plaintiffs”), the Texas Democratic Party (“TDP”) Chairman, the TDP, and four
interest groups (with the TDP, “Organizational Plaintiffs”), who have been litigat-
ing this case in tandem. Unless context clearly indicates otherwise, this brief will use
the term “Plaintiffs” to refer to all Plaintiffs, whether original Plaintiffs or Plaintiff-
Intervenors.

xx
 Issues Presented
1. Whether Plaintiffs have standing to pursue redress for an injury shared

equally by all voters in the State of Texas.

2. Whether a trial court has jurisdiction to (a) hear claims based on speculative

allegations of possible future harm, and (b) issue an advisory opinion regard-

ing the meaning of Texas’s Election Code.

3. Whether Plaintiffs have pleaded a violation of the Election Code such that

(a) allows them to overcome sovereign immunity, or (b) entitles Plaintiffs to

a temporary injunction.

4. Whether the State’s intervention to defend the uniformity of state law

within Travis County gave the trial court authority to enjoin the State and
various state actors from enforcing state law, including outside Travis

County.

xxi
 Introduction
On its face, this case turns on what appears to be a straightforward question of

statutory interpretation: When the Legislature allowed a registered voter to vote by

mail if he “has a sickness or physical condition that prevents the voter from appear-

ing at the polling place on election day,” did it extend that exception to all Texans

who worry that voting in person may injure the public health? Tex. Elec. Code

§ 82.002(a). Behind this apparent simplicity, however, lie questions of the “most

fundamental significance under our constitutional structure”: How are citizens to

exercise the franchise, and who should decide how elections are to be run in the State

of Texas? Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citation omitted).

Claiming a “desparate[] need” to know “what the existing law provides so that
they can determine their conduct during the primary runoff period and the General

Elections,” CR.8, Plaintiffs ask the judiciary to declare that “any eligible voter, re-

gardless of age and physical condition” may vote by mail to “hinder the known or
unknown spread of a virus or disease,” CR.11. At the preliminary injunction hearing,

the Travis County Clerk—the nominal defendant—echoed Plaintiffs’ request for “a

description of the law’s requirements.” 2RR.164 (Chad Dunn for Plaintiffs);

2RR.137 (Leslie Dippel for Defendant). The State intervened by and through its At-

torney General because this joint request did not fall within the prescribed role of the

judiciary. Moreover, the requested “description” bears no resemblance to the actual

language adopted and maintained by the Legislature for nearly a century—regardless

of which political party was in power.

 The district court used the State’s intervention to justify an order that is remark-

able in its overreach. The court enjoined (among other things) state actors from “is-

suing guidance or otherwise taking actions during all elections affected by the

COVID-19 pandemic that would prohibit individuals from submitting ballots based
on the disability category of eligibility.” CR.96. The order is entirely untethered to

the language passed by the Legislature. It is unbounded in time or location. It es-

chews the deference due to the political branches in this type of crisis. And it cannot
be allowed to stand.

Statement of Facts

I. Voting by Mail in Texas

To prevent fraud and abuse, Texas law has long required most voters to cast

their ballots in person either on Election Day, Tex. Elec. Code ch. 64, or during an

early voting period prescribed by the Legislature, id. § 82.005.The Texas Legislature

has allowed voters to vote by mail in only four circumstances, if he: (1) anticipates

being absent from his county of residence on election day; (2) has a disability that
prevents him from appearing at the polling place; (3) is 65 or older; or (4) is confined

in jail. Id. § 82.001-.004. Only the second exception is at issue in this appeal.

Plaintiffs have acknowledged that neither they nor the voters they seek to repre-

sent would meet the Legislature’s strict guidelines for voting by mail were it not for

the prevalence of the novel coronavirus commonly known as “COVID-19.” E.g.,

3RR.53-54; 3RR.57; 3RR.62. Plaintiffs maintain that they—or unspecified mem-

bers—want to vote by mail “to reduce the demand on in-person voting” and because

2
“public health makes it dangerous for individuals to vote in person.” 2RR.38; see

also, e.g., 2RR.87.

But even if some believe it should have, the Texas Legislature has not defined

“disability” by reference to the need to protect public health. Disability is instead

defined for the purposes of the Election Code to apply if the “voter has a sickness or

physical condition that prevents the voter from appearing at the polling place on elec-

tion day without a likelihood of needing personal assistance or of injuring the voter’s
health.” Tex. Elec. Code § 82.002(a) (emphases added). The disability need not be

permanent to meet this definition so long as the voter is suffering from the disability

on election day. For example, the Legislature has included “[e]xpected or likely con-

finement in childbirth” as a “disability” for this purpose since 1981. Id. § 82.002(b);

Act of May 26, 1981, 67th Leg., R.S., ch. 301, § 1, 1981 Tex. Gen. Laws. 854, 854.

The rule allowing sick or disabled voters to vote by mail has itself existed since 1935.
Act of Oct. 30, 1935, 44th Leg., 2nd C.S., p. 1700, ch. 437, § 1, 1935 Tex. Gen. Laws

1700, 1700.2

Under current law, the early-voting clerk is responsible for conducting early vot-

ing and must “review each application for a ballot to be voted by mail.” Tex. Elec.

Code § 86.001(a). For most state- and county-wide elections, the county clerk or

2
Section 82.002 took its current form during the 1985 recodification of the Election
Code. Act of May 13, 1985, 69th Leg., ch. 211, 1985 Tex. Gen. Laws 802. Though
the phrasing of the section was modified somewhat, no substantive changes were
intended. Cf. Bill Analysis, Tex. S.B. 616, R.S., 69th Leg. (1985) (omitting any refer-
ence to absentee balloting from list of substantive amendments during recodifica-
tion).

3
election administrator is the early-voting clerk,3 and “[t]he city secretary is the early

voting clerk for an election ordered by an authority of a city.” Id. § 83.005. Each

early-voting clerk is responsible for determining whether an application to vote by

mail complies with all requirements, providing notice and cure instructions to any

voter who submits a noncompliant application, and “provid[ing] an official ballot

envelope and carrier envelope with each ballot provided to a voter” who properly

completes an application. Id. §§ 86.001(a), .002(a), .008, .009. After a voter marks

his mail-in ballot, he must return it to the early-voting clerk in the official carrier

envelope. Id. § 86.006(a). These provisions, though administered by local officials,

apply uniformly throughout Texas. Id. § 31.003.

II. The 2020 Election and COVID-19

The record reflects that these procedures were used for the March 3, 2020 pri-

mary election without major incident4—even though COVID-19 had already arrived

in Texas.5 Because some races did not yield a conclusive result, however, a runoff
was scheduled.6 In the ordinary course, that runoff would have been held on May 26,

3
Tex. Elec. Code § 83.002; see also Election Duties, Texas Secretary of State,
https://www.sos.state.tx.us/elections/voter/county.shtml (last visited May 6,
2020).
4
Plaintiffs offered into evidence reports of unusually long lines, but that evidence
attributes the issue to “record turnout,” rather than any mishandling by election of-
ficials. 3RR.273-78.
5
DSHS Announces First Case of COVID-19 in Texas, Texas Department of State
Health Services (Mar. 4, 2020), https://www.dshs.texas.gov/news/re-
leases/2020/20200304.aspx.
6
See, e.g., Tex. Elec. Code §§ 172.003, .004(a).

4
2020. A special election to replace the Senator in District 14 was also scheduled to

be held on May 10. The course of these elections—like most aspects of Texans’ pub-

lic and private lives—was interrupted by the spread of COVID-19.

On March 13, 2020, Governor Greg Abbott exercised his authority under the
Texas Disaster Act of 1975, Tex. Gov’t Code § 418.001, et seq., and declared a state

of disaster in all of Texas’s 254 counties. 3RR.15-16; 3RR.233-35; see also Salmon v.

Lamb, 616 S.W.2d 296, 298 (Tex. App.—Houston [1st Dist.] 1981, no writ) (discuss-
ing Governor’s emergency powers in election context). At the time, little was known

about the virus. There were 30 confirmed cases of COVID-19 in Texas and approxi-

mately 50 individuals awaiting test results, 3RR.15-16, but one estimate suggested

that the disease had an overall mortality rate of about 2.3%, 3RR.233. In total, early

estimates cited by Plaintiffs suggested that between 100,000 and 240,000 Americans

could die from COVID-19. CR.32-33. To avoid such an outcome, state and local gov-
ernments adopted “various measures . . . to ‘flatten the curve,’” and those measures

formed the basis of this lawsuit. CR.7; see also, e.g., CR.33-34.

As Plaintiffs’ epidemiologist candidly admitted, however, “models are only as

good as the assumptions put into them.” 3RR.89. And early estimates of the severity

of COVID-19 proved inaccurate. As they have been revised down, government pol-

icies have evolved accordingly.

These policies show that Plaintiffs’ suit is premature at best. On April 17, 2020,

Governor Abbott announced the formation of a Strike Force to Open Texas, Execu-

tive Order No. GA-16, 45 Tex. Reg. 2760 (2020), as well as the reopening of certain

5
non-essential business, subject to an ongoing obligation to maintain appropriate so-

cial distancing, Executive Order No. GA-17, 45 Tex. Reg. 276 (2020). On April 27,

the Governor announced a phased reopening of non-essential business, starting on

May 1. Executive Order No. GA-18 (Apr. 27, 2020).7

The Governor has taken these actions fully cognizant that the Legislature has

made him “responsible for meeting . . . the dangers to the state and people presented

by disasters,” and “with the expert advice of medical professionals and business

leaders.” Id. (quoting Tex. Gov’t Code § 418.011). Further, the Governor has ex-

pressly provided that, while restrictions are being lifted in many parts of the State,

more stringent restrictions may remain in counties where he determines there exists
a public-health need “in consultation with medical professionals . . . based on factors

such as an increase in the transmission of COVID-19.” Id. To date, the Governor

has not made that determination for Travis County, and the County is on schedule
to fully reopen well in advance of the next election.

Throughout the worst of the COVID-19 pandemic and beyond, state officials

have monitored the situation closely and adopted appropriate measures to protect

the safety, uniformity, and integrity of elections. These actions include:

 Postponing the May 2, 2020 special election for Senate District 14 to July
14 because holding the election as scheduled “would prevent, hinder, or
delay necessary action in coping with the declared disaster by placing the

7
This order was entered after the hearing. Executive Orders are, however, the type
of document that is subject to judicial notice. Tex R. Evid. 201(b)(2). This Court
“has the power,” and, at times, the obligation, “to take judicial notice for the first
time on appeal.” Office of Pub. Util. Counsel v. PUC, 878 S.W.2d 598, 600 (Tex.
1994) (per curiam) (collecting cases).

6
 public’s health at risk and threatening to worsen the ongoing public health
crisis,” 3RR.375;
 Allowing political subdivisions to postpone elections scheduled for May
2, 2020 to November 3, 2020, Office of the Governor of Texas, Proclama-
tion (Mar. 18, 2020), https://lrl.texas.gov/scanned/gov-
docs/Greg%20Abbott/2020/proc03182020.pdf;
 Postponing the May 26, 2020 primary runoff to July 14, 2020, 3RR.22-
24; and
 Allowing the Fort Worth Crime Control and Prevention District to post-
pone a special election scheduled for May 2, 2020 to July 14, 2020, Office
of the Governor of Texas, Proclamation (Apr. 2, 2020),
https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/
proc04022020.pdf.

The Secretary of State has also provided guidance regarding how to address elec-

tions during the COVID-19 pandemic. On March 18, 2020, the Secretary provided

guidance on postponing elections scheduled for May 20, 2020.8 On April 2, the Sec-

retary further emphasized that local election officials should exercise their authority

to postpone elections scheduled in May pursuant to the Governor’s March 18, 2020
advisory. CR.113-15; 3RR.366-74. The Secretary also provided guidance about how

to conduct elections safely, incorporating guidelines from the Center for Disease

Control, 3RR.369-70; 3RR.177-79 (providing recommended cleaning practices), and

tracking other guidelines used internationally.9 Plaintiffs have provided no evi-

dence—or even allegations—why the procedures recommended by the CDC and

adopted by the Secretary could not or would not be safely employed.

8
Texas Secretary of State, Election Advisory No. 2020-12 (March 18, 2020),
https://www.sos.state.tx.us/elections/laws/advisory2020-12.shtml.
9
E.g., Catherine Kim, I Voted in Korea. This is What Democracy Can Look Like in a
Pandemic, Vox, (Apr. 17, 2020, 7:30 AM EDT) https://www.vox.com/

7
III. This Lawsuit
A. On March 20, 2020, Plaintiffs filed their Original Petition and Application

for Temporary Injunction and Declaratory Judgment, asserting jurisdiction under

the Uniform Declaratory Judgment Act (“UDJA,” Tex. Civ. Prac. & Rem. Code

ch. 37) and Texas Election Code section 273.081, CR.5-6. Without limiting their re-

quest to COVID-19, the TDP, its Chair, and two individual voters sought a declara-

tion that Election Code section 82.002 “allows any eligible voter regardless of age

and physical condition” to vote by mail “if they believe they should practice social
distancing in order to hinder” the spread of an unspecified “virus or disease.”

CR.11. Plaintiffs also sought to enjoin the Travis County Clerk from refusing to count

votes “in an upcoming election”—without limitations as to time—from any voters

“who believe that they should practice social distancing in order to hinder” such a

“virus or disease.” CR.11.10

world/2020/4/17/21221786/coronavirus-south-korea-election-vot-
ing-covid-19-pandemic-democracy; Staffan Darnolf, et al., Indelible Ink in Elections:
Mitigating Risks of COVID-19 Transmission While Maintaining Effectiveness, Interna-
tional Foundation for Electoral Systems (Apr. 15, 2020),
https://www.ifes.org/news/indelible-ink-elections-mitigating-risks-covid-19-trans-
mission-while-maintaining-effectiveness.
10
The leadership of TDP’s national affiliate has also stated that the pandemic is seen
as “an opportunity to revamp our electoral system” by permanently increasing ac-
cess to mail-in ballots. Tessa Berenson, Eric Holder: Here’s How the Coronavirus
Should Change U.S. Elections—For Good, Time (Apr. 14, 2020),
https://time.com/5820622/elections-coronavirus-eric-holder/.

8
 On March 27, Texas timely intervened in this case to preserve its paramount

interest in the consistent application of its election laws as adopted by the Legisla-

ture. CR.16-26.

Plaintiff-Intervenors filed their Petition in Intervention on April 1. Like the orig-

inal Plaintiffs, they claim to “need . . . legal clarity” regarding the scope of section

82.002. CR.43. And, like the original Plaintiffs, Plaintiff-Intervenors seek a declara-

tion that “the definition of ‘disability’” in the Election Code “currently encom-
passes all registered voters” because “all individuals have a physical condition that

prevents them from appearing at a polling place on election day without a likelihood

of injuring the voter’s health.” CR.44. They also ask the court to enjoin “Defend-

ants from interpreting or applying section 82.002 . . . in a way that prevents regis-

tered voters from voting by mail in light of the pandemic.” CR.44.

On April 7, 2020, the State as Intervenor filed a timely plea to the jurisdiction,
asserting that Plaintiffs: (1) lack standing; (2) seek an advisory opinion on an issue

not yet ripe; and (3) fail to overcome sovereign immunity because their complaint

asks the courts to interpret the Election Code, not enjoin any ongoing violation
thereof. CR.80-112. On April 13, the State filed an opposition to the temporary in-

junction, explaining that Plaintiffs were not entitled to such extraordinary relief for

many of the same reasons. CR.637-48. Although Travis County filed a general denial
of the Original Petition, the State’s Plea in Intervention, and Plaintiff-Intervenors’

Petition in Intervention, it did not oppose the temporary injunction in any way. See

CR.212-16.

9
 B. The trial court held an evidentiary hearing on April 15, 2020. 1RR.1-12. Dur-

ing that hearing, Plaintiffs’ counsel acknowledged that this suit is an effort “to re-

duce the demand on in-person voting” and a “matter of public health”—not an ef-

fort to protect any particular voter based on that voter’s condition. 2RR.38. Further,
Plaintiffs disclaimed any suggestion from their complaint that this case involves any

issues of federal or constitutional law, 3RR.37, that the named defendant had taken

any action in violation of state law, or even that the defendant planned to violate state
law, see 2RR.44 (complaining only that they “have received no meaningful guid-

ance”). Indeed, Plaintiffs acknowledged repeatedly that this suit was born out of a

need for a “description of the law’s requirements.” 2RR.167; see also, e.g., 2RR.43,

55. Those sentiments were echoed by counsel for the nominal defendant, the Travis

County Clerk. 2RR.137-38 (“Without a court opinion on the definition of disability

. . . it would result in county clerks interpreting 82.002 differently resulting in incon-
sistency.”); 2RR.142 (“[A]ll of this is based upon a need to reduce the demand on

in-person voting for the voters and the election workers[].”).

To establish a generalized risk to the public health, Plaintiffs asked the court to
consider affidavits from themselves, 3RR.51-54; Dr. Catherine Troisi, an epidemiol-

ogist, 3RR.86-106; Dr. Mitchell Carroll, a primary-care physician who has treated

two COVID-19 patients, 2RR.115; 3RR.25-27; 2RR.115; a TDP official, 3RR.28-33;

and a lawyer who has made a career of testifying in cases under the federal Voting

Rights Act, 3RR.34-50.

The trial court did not rule from the bench on April 15. The court indicated that

it was inclined to deny the State’s plea to the jurisdiction and to issue an injunction.

10
2RR.185. The form of that injunction was still to be determined. 2RR.183, 192. Plain-

tiffs proposed an injunction that purported to enjoin the State from enforcing section

82.002 without express limitation to Travis County.11 The State objected to the in-

junction as overbroad and unsupported. CR.937-41. Travis County again made no

objection to the form of the injunction.

C. On April 17—the very day the Governor began to reopen Texas for ordinary

business—the trial court enjoined Travis County from refusing to provide, accept,

or tabulate “any mail ballots received from voters who apply to vote by mail based

on the disability category . . . as a result of the COVID-19 pandemic.” CR.960. The

court further purported to enjoin the State and state actors “from issuing guidance

or otherwise taking actions . . . that would prohibit individuals from submitting mail

ballots based on the disability category.” CR.961. The court expressly denied the

State’s plea to the jurisdiction. CR.958.

That afternoon, the State filed a notice of appeal, which automatically stayed

any further proceedings in the trial court, Tex. Civ. Prac. & Rem. Code

§§ 51.014(a)(8), (b); and superseded the temporary injunction, id. § 6.001; RR 963-

65; Tex. Educ. Agency v. Hous. ISD, 03-20-00025-CV, 2020 WL 1966314, at *1 (Tex.

App.—Austin Apr. 24, 2020, no pet. h.).

11
The original form of the proposed order is not in the record, but it has been sub-
mitted as Exhibit A to the State’s concurrently filed Response to Appellees’ Plain-
tiffs’ and Intervenor Plaintiffs’ Verified Motion for Emergency Relief.

11
 Summary of the Argument
The trial court erred when it rejected the State’s plea to the jurisdiction and

granted an overbroad temporary injunction that is based on an unsupported inter-

pretation of the Election Code. Individual Plaintiffs lack standing to sue because they

seek to vindicate a generalized grievance that is shared (if it exists) by all voters, not

a particularized injury in fact. Organizational Plaintiffs’ standing is inexorably tied to

the standing of their members and fails for the same reasons.

Even if Plaintiffs could establish standing to sue, their claims are not justiciable.
Plaintiffs have sought relief in connection with elections that will not occur until (at

the earliest) July. Though the nominal defendant does not object to the requested

relief, the request is premised on hypothetical facts and contingencies that will not
come to pass in the manner contemplated by the complaint and may never come to

pass at all. This was true at the time of the hearing, and it has been underscored by

the subsequent relaxation of the public-health measures that formed the basis of
Plaintiffs’ complaint.

Moreover, Plaintiffs failed to show jurisdiction or a cause of action against the

named defendant because they have not shown an actual violation of the Election

Code. Instead, Plaintiffs—and, to a lesser extent, Travis County—have sought judi-

cial ruminations about how they should interpret the Election Code. Such a request

for legal advice neither falls within the jurisdiction of Texas courts nor shows an en-
titlement to the extraordinary remedy of a temporary injunction.

And Plaintiffs certainly did not show an entitlement to relief that extends to the

State (or anyone else outside Travis County). Contrary to Plaintiffs’ assertions to

12
the trial court, the State did not become a full defendant when it intervened. Instead,

it exercised its statutory right—and the Attorney General’s statutory obligation—to

represent the State’s interest in the consistency of state law within the bounds of

Travis County. That did not give the trial court authority or grounds to extend relief
to anyone other than the defendant whose conduct was supposedly at issue.

Standard of Review
This Court reviews a trial court’s ruling on a plea to the jurisdiction de novo.

Grossman v. Wolfe, 578 S.W.3d 250, 255 (Tex. App.—Austin 2019, pet. denied). In

applying this standard of review, “courts ‘construe the pleadings in the plaintiff’s

favor, but [will] consider relevant evidence offered by the parties,’” Farmers Tex.

Cty. Mut. Ins. Co. v. Beasley, No. 18-0469, 2020 WL 1492412, at *2 (Tex. Mar. 27,

2020) (collecting cases), and matters subject to judicial notice, Bridgeport ISD v. Wil-

liams, 447 S.W.3d 911, 916 & n.5 (Tex. App. 2014—Austin, no pet.) (citing Freedom

Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623-24 (Tex. 2012) (per curiam)).

Though the focus of the inquiry is whether the court had jurisdiction at the time a

complaint was filed, courts also consider later developments to the extent they im-

pact their continued jurisdiction. Perry v. Del Rio, 66 S.W.3d 239, 251 (Tex. 2001).

This Court reviews a trial court’s temporary injunction for an abuse of discre-

tion. E.g., Henry v. Cox, 520 S.W.3d 28, 33 (Tex. 2017). Nevertheless, “to the extent

the district court’s ruling rests on questions of law, whether in the context of an

abuse of discretion analysis or otherwise,” this Court reviews that ruling de novo.

Tex. Ass’n of Bus. v. City of Austin, 565 S.W.3d 425, 438 (Tex. App—Austin 2018,

pet. filed). “[I]f the relevant evidence is undisputed or fails to raise a fact question

13
on the jurisdictional issue, the trial court rules as a matter of law,” and that ruling is

reviewed de novo. Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.339, 345

(Tex. 2019) (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228

(Tex. 2004)).
Regardless of the merits, a temporary injunction in a case where a plaintiff has

not established jurisdiction is necessarily improper because “[a] plea to the jurisdic-

tion challenges the trial court’s authority to determine the subject matter of a specific
cause of action.” Rea v. State, 297 S.W.3d 379, 383 (Tex. App.—Austin 2009, no

pet.) (citing Bland ISD v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)).

Argument

I. Plaintiffs Lack Standing.

The trial court lacked jurisdiction because Plaintiffs lack standing to pursue a
generalized grievance shared by the entire electorate. Standing is “a component of

subject matter jurisdiction,” Tex. Ass’n of Bus., 852 S.W.2d at 445-46, and “a con-

stitutional prerequisite to filing suit,” S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304,

307 (Tex. 2007). To have standing, Plaintiffs must demonstrate that they have (1) an

injury in fact that (2) is traceable to the defendant, and (3) likely to be redressed by a

favorable decision. See Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). “The pres-

ence of a disagreement, however sharp and acrimonious it may be, is insufficient by

14
itself to meet [these] requirements.” Hollingsworth v. Perry, 570 U.S. 693, 704

(2013).12

Both the Texas Supreme Court and the U.S. Supreme Court have cautioned that

courts must carefully police jurisdictional limitations such as standing because they

“identif[y] those suits appropriate for judicial resolution.” Brown, 53 S.W.3d at 305.

This case undoubtedly presents an important question. And there is a “natural urge

to proceed directly to the merits of important dispute and to ‘settle’ it for the sake
of convenience and efficiency.” Hollingsworth, 570 U.S. at 704-05. But “[i]f courts

were empowered to ignore the usual limits on their jurisdiction . . . when matters of

public concern are at stake, then we would no longer have a judiciary with limited
power to decide genuine cases and controversies,” but a “judiciary with unbridled

power to decide any question it deems important to the public.” Morath v. Lewis, No.

18-0555, 2020 WL 1898537, at *3 (Tex. Apr. 17, 2020) (per curiam). Here, because
neither Individual Plaintiffs nor Organizational Plaintiffs had (or have) standing, the

case should be dismissed.

A. Individual voters lack standing.

Individual Plaintiffs lack standing for multiple reasons. First and foremost, even

in voting cases, the Supreme Court has required plaintiffs allege a concrete harm that

is unique from the general public. Here, Individual Plaintiffs seek to vindicate a gen-

eralized grievance that (if it exists) is shared by the entire electorate. Moreover, that

12
To the extent not contradicted by state law, Texas courts “look to the more exten-
sive jurisprudential experience of the federal courts on the subject [of justiciability]
for any guidance it may yield.” Tex. Ass’n of Bus., 852 S.W.2d at 444.

15
grievance is hypothetical and contingent on a risk of contagion that depends not only

on yet-to-be-taken steps by government officials but also on Individual Plaintiffs’

own behavior. Such purported injuries do not create a justiciable controversy.

1. Plaintiffs allege only a generalized fear of contagion, which is

common to the entire voting public.
Individual Plaintiffs’ claim is based on a risk of contagion that is shared by every

voter in the State. Such a theory violates the first rule of standing: that the plaintiff

“must be personally aggrieved” by an alleged wrongful act in order to seek a remedy

through the courts. Daimler Chrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.

2008) (citing Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661

(Tex. 1996)). The Constitution places such controversies in the hands of “other

branches of government [that] may more appropriately decide abstract questions of

wide public significance.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011)

(citation and quotation marks omitted); see also, e.g., Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992).

The same rule applies in voting cases, where the Supreme Court has been careful

to “require[] a plaintiff to allege some injury distinct from that sustained by the pub-

lic at large.” Andrade, 345 S.W.3d at 8 (quoting Brown, 53 S.W.3d at 302). This rule

preserves the Legislature’s primacy in ordering elections by ensuring that “‘there is

a real need to exercise the power of judicial review in a particular case,’” and that

courts fashion remedies ‘no broader than required by the precise facts to which the

court’s ruling would be applied.’” Id. at 7 (quoting Lance v. Coffman, 549 U.S. 437,

441 (2007)). Voters who seek change to current policy, but who lack such a unique

16
harm are, of course, “free to engage through the Legislative and Executive

Branches,” Baron v. Tex. Historical Comm’n, 411 S.W.3d 161, 176 (Tex. App—Aus-

tin 2013, no pet.).13

Andrade, which involved multiple theories of harm arising from the use of an
electronic voting system in Travis County, illustrates the outer limits of voter stand-

ing. 345 S.W.3d at 4. The Court held that Travis County voters had standing to as-

sert an equal-protection claim based on a theory that their votes were “less proba-

ble” to be “counted than will the votes of residents of other Texas counties.” Id. at

10. It reasoned that such a harm was distinct to Travis County voters as compared

to other members of the electorate. Id.; see also id. at 8-9 (collecting cases based on

vote dilution or undercounting).14 By contrast, Andrade explains, status as a voter

was insufficient to allow them to complain about aspects of the system that could

compromise the right to a secret ballot. Id. at 15. The concern that plaintiffs felt that
such problems could arise was a “generalized grievance shared in substantially equal

measure by all or a large class of citizens.” Id. (citing Daimler Chrysler Corp., 252

S.W.3d at 304-05). Moreover, because those problems had not manifested in Travis

13
For this reason, Plaintiffs’ reliance in the trial court on actions of other States in
response to COVID-19 was misplaced. The actions cited were taken by those States’
Executive and Legislative branches of government. 3RR.186-231. What policymak-
ers could—or even should—do is not at issue in this case. Efforts in other States to
force such a change through the courts have been rejected either for lack of jurisdic-
tion or on the merits. E.g., City of Green Bay v. Bostelmann, No. 20-C-479, 2020 WL
1492975, at *3 (E.D. Wis. Mar. 27, 2010).
14
The Court ultimately concluded that these claims failed on the merits. Andrade,
345 S.W.3d at 13-14.

17
County elections, plaintiffs’ grievance was hypothetical. Id. As such, this subjective

concern did not rise to the level of a justiciable injury. Id.

Earlier this year, the Third Court came to a similar conclusion when it examined

a voter’s claim that a municipality had diluted his vote by effectively amending the
city charter without voter consent. Kilgore v. City of Lakeway, No. 03-18-00598, 2020

WL 913051, at *1 (Tex. App.—Austin Feb. 26, 2020, no pet.) (mem. op.). The court

dismissed the voter’s claim and reiterated that “[n]o Texas Court has ever recog-
nized that a plaintiff’s status as a voter, without more, confers standing to challenge

the lawfulness of government acts.” Id. at *5; see also Brown, 53 S.W.3d at 303 (de-

scribing acceptable class of voter-status suits as “narrow”); id. at 305 (citing

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). The court further emphasized that

a plaintiff’s subjective desire for “a different system” of elections “does not change

the fact that he is raising only a generalized grievance about [the statute] and has not
suffered a concrete particularized harm.” Kilgore, 2020 WL 913051, at *5 (citing

Hotze v. White, No. 01-08-00016-CV, 2010 WL 1493115, at *6-7 (Tex. App.—Hou-

ston [1st Dist.] 2010, pet. denied) (mem. op.)).

Here, just as in Andrade and Kilgore, Plaintiffs have not shown that their desire

to vote by mail injures them in a way that is distinct from the general voting public.

In analyzing standing, it is crucial to identify the specific harm at issue because “[t]he
line between a generalized grievance and a particularized harm is difficult to draw,

and it varies with the claims made.” Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 533,

580 (Tex. 2014) (quoting Andrade, 345 S.W.3d at 8) (alterations added by Norwood).

In this case, the alleged harm is not any potential loss of the right to vote, but the

18
inability to vote by mail. The U.S. Supreme Court has repeatedly recognized that

though the right to vote is fundamental to democracy, “[i]t does not follow . . . that

the right to vote in any manner and the right to associate . . . through the ballot are

absolute.” Burdick, 504 U.S. at 433. In particular, the U.S. Supreme Court has
squarely distinguished between the constitutional right to vote and the license to vote

by mail, which is granted (if at all) by legislation. McDonald v. Bd. of Election Comm’rs

of Chi., 394 U.S. 802, 807-08 (1969).

Plaintiffs’ claim of a right to vote by mail is not particularized to them. Indeed,

by their own terms Plaintiffs seek a remedy on behalf of every Texas voter. The gra-

vamen of this extraordinary claim is that all Texans are disabled by fear of COVID-

19. For example, Plaintiff-Intervenors offered the testimony of Zachary Price who

averred “that during this ongoing COVID-19 outbreak [he], along with everyone else,

ha[s] a physical condition that prevents [him] from appearing at the polling place on
Election Day without a likelihood of injuring [his] health.” 3RR.57 (emphasis

added). Price did not state on what basis he was testifying about the fears of “every-

one else.”
In any event, complaints by an individual about fears he shares with “everyone

else,” are the definition of generalized grievances that will not support standing for

two reasons. First, as the Third Court has recognized, “subjective interests, or con-
cern, however admirable, are not in themselves considered to rise to the level of a

justiciable interest that can support standing in court.” Baron, 411 S.W.3d at 176.

Nor is it enough in a pre-enforcement context for the plaintiff to assert “a general-

ized fear of being prosecuted.” City of El Paso v. Tom Brown Ministries, 505 S.W.3d

19
124, 147 (Tex. App.—El Paso 2016, no pet.) (citing Okpalobi v. Foster, 244 F.3d 405,

426-27 (5th Cir. 2001) (en banc)). Second, even if a subjective fear suffices to support

standing for the person holding the fear, it is not a particularized injury when the fear

is shared alike by all Texans. “[T]he proper inquiry” is “whether the plaintiffs sue
solely as citizens”—or voters—“who insist that the government follow the law.”

Fin. Comm’n of Tex., 418 S.W.3d at 580.

To the extent that Plaintiffs have identified anyone with an interest that is poten-
tially unique, it is to allege that certain groups with unique risk factors may be unable

to go to the polls even if—as has now happened—the stay-at-home orders are lifted.

CR.7-8. But Individual Plaintiffs have neither alleged nor shown that they belong to

those groups. Therefore, as Andrade explained, this alleged injury “[n]ot only . . .

fall[s] within the generalized grievance category, but it violates the prudential stand-

ing requirement that a plaintiff . . . cannot rest his claim to relief on the legal rights
or interests of third parties.” 345 S.W.3d at 15-16 & n.25 (quoting Warth v. Seldin,

422 U.S. 490, 499 (1975)).

In any event, significant overlap exists between voters with an increased risk for
COVID-19 and those who are already eligible to vote by mail because they are at least

65 years old or have other illnesses or disabilities. Tex. Elec. Code §§ 82.002-.003.

And Plaintiffs cannot assert these harms because they are not “personally ag-
grieved.” Daimler Chrysler, 252 S.W.3d at 304.

20
 2. Plaintiffs’ alleged harms are neither traceable to the named
defendant’s actions nor redressable by this Court.
Even if Plaintiffs’ generalized allegations of harm otherwise stated an injury, that

injury is not traceable to any action by the named defendant for at least two reasons.

First, the Travis County Clerk demonstrated at the hearing that she does not

actually disagree with Plaintiffs and that she has taken no action to deprive them of

their alleged rights. See 2RR.139-42. Indeed, the general agreement between Plain-

tiffs and the Travis County Clerk suggests that this case should have been dismissed

under the general rule against collusive litigation. Tex. & P. Ry. Co. v. Gay, 26 S.W.

599, 613 (1894) (defining “collusive litigation” as that where “seemingly adverse

parties” seek to “have some legal question decided which is not involved in a real

controversy between them”); see also, e.g., Block Distrib. Co. v. Rutledge, 488 S.W.2d
479, 480 (Tex. App.—San Antonio 1972, no writ) (reiterating that courts lack juris-

diction to hear collusive suits). So any harm that Plaintiffs theoretically may face is

not caused by the Travis County Clerk.

The State has opposed Plaintiffs’ interpretation of the law, but it is not a defend-

ant subject to the jurisdiction of the trial court for the reasons discussed below (at

47-49). Moreover, even if the State were a defendant, enjoining the State would not

remedy Individual Plaintiffs’ alleged harm because the named defendant—the

Travis County Clerk—is the only person empowered to process ballots for registered

voters in Travis County. Tex. Elec. Code § 86.001(a). And a claim against the State

21
will not save Plaintiffs’ claim against Travis County because standing is claim-spe-

cific. See, e.g., Thiel v. Oakes, 535 S.W.2d 1, 2 (Tex. App.—Houston [14th Dist.]

1976, no writ).

Second, any injury to Individual Plaintiffs is subject to multiple contingencies,

many of which are not within the control of Travis County (or the State). For exam-

ple, whether a particular voter will be able to vote in July will depend on (among

other things) the prevalence of the virus in that voter’s area, whether the voter has
already had the virus, what precautions are taken to protect voters at the voter’s local

polling places, and whether the particular voter chooses to use other means of voting

safely. When standing depends on a chain of contingencies, any link that is either

speculative or caused by someone other than the defendant will cause the entire

chain to break. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410-11 (2013). Here,

leaving aside all of the unknowables that are not within the control of the named de-
fendant or the State, the Election Code already provides for late voting if a voter

develops “a sickness or physical condition described by [section] 82.002 . . . after the

day before the last day” to apply to vote by mail. Tex. Elec. Code § 102.001(a). That
is, if any Individual Plaintiff contracts COVID-19 and is unable to vote in person as

a result, that voter can apply to vote a late ballot under Election Code chapter 102.

Thus, any hypothetical disenfranchisement would result from Individual Plaintiff’s

choice, not the behavior of the defendant or the State.

B. Organizational Plaintiffs lack standing.

Organizational Plaintiffs also lack standing for two reasons. First, their members

(if any) lack standing to sue in their own behalf. Second, Texas law does not recognize

22
organizational standing separate from the standing of the organization’s members.

And, even if it did, Organizational Plaintiffs have not alleged, let alone shown, that

they must take actions different from their ordinary activities.

1. Organizational Plaintiffs lack standing in a representative capacity.

Organizational Plaintiffs lack standing because their members, like Individual

Plaintiffs, can assert at most a generalized grievance shared by the entire voting pub-

lic. Texas courts generally follow federal standing jurisprudence with respect to as-

sociational standing—that is, the standing of an organization to sue on behalf of its

members. See Tex. Ass’n of Bus., 852 S. W. 2d at 444. Under that test, an association

must show—among other things—that “its members would otherwise have stand-

ing to sue in their own right.” Hunt v. Wash. State Apple Adver. Comm’n., 432 U.S.
333, 343 (1977).

Organizational Plaintiffs have failed to “identify members who have the requi-

site harm” for an injury-in fact. Summers v. Earth Island Inst., 555 U.S. 488, 499

(2009). Indeed, Plaintiffs did not identify any members in their pleadings. Certain

Organizational Plaintiffs submitted declarations in support of their preliminary in-

junction that identify an individual voter who claims to be a member of the organiza-

tion. 3RR.69-70. Such conclusory statements are, however, insufficient to demon-

strate the individual’s membership for the purposes of establishing the organiza-

tion’s standing as representative of that member. E.g., Ass’n for Retarded Citizens of

Dall. v. Dall. Cty. Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d

241, 244 (5th Cir. 1994); Tex. Indigenous Council v. Simpkins, No. 5:11-cv-315, 2014

WL 252024, at *3 (W.D. Tex. Jan. 22, 2014). Even if it were, the record reflects that

23
those individuals are similarly situated to Individual Plaintiffs and therefore lack

standing for the reasons discussed extensively above. E.g., 3RR.69-70. Because Or-

ganizational Plaintiffs provide no specific evidence of a specific member with inter-

ests distinct from those of the general populace, their claims must be dismissed.
Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016); NAACP v. City of Kyle, 626 F.3d 233,

237 (5th Cir. 2010). That the TDP and its Chairman are parties does not change this

analysis. Ga. Republican Party v. SEC, 888 F.3d 1198, 1203 (11th Cir. 2018); Colvin v.
Ellis Cty. Republican Exec. Comm., 719 S.W.2d 265, 266-67 (Tex. App.—Waco 1986,

no writ).

2. Texas courts do not recognize standing based on harm to an

organization itself.
To the extent that the trial court found that Organizational Plaintiffs had stand-
ing separate from their members, CR.958, that is an error of law. Because Plaintiffs’

claims sound in state law, state law governs the standing analysis. Perry, 66 S.W.3d

at 249-50. And Texas courts do not recognize organizational standing separate from
representative standing.

Even in federal court organizational standing is limited. The U.S. Supreme

Court has allowed an organization to sue for its own injuries (as opposed to those of

its members) on only one occasion: In Havens Realty Corporation v. Coleman, 455

U.S. 363 (1982), the Court allowed an entity that provided housing consulting and

referral services to bring claims for damage to the organization under the Fair Hous-

ing Act. This is a controversial ruling, which has not been broadly applied even in

federal courts. See Ryan Baasch, Reorganizing Organizational Standing, 103 Va. L.

24
Rev. Online 18, 21-24 (2017). And the Third Court has held that Havens applies only

in the Fair Housing Act context, and that organizations do not have standing based

on their “advocacy expenditure[s]” under Texas law. Tex. Dep’t of Family & Protec-

tive Servs. v. Grassroots Leadership, Inc., No. 03-18-00261-CV, 2018 WL 6187433, at

*5 (Tex. App.—Austin Nov. 28, 2018, no pet.) (mem. op.), reconsideration en banc

denied, No. 03-18-00261-CV, 2019 WL 6608700 (Tex. App.—Austin Dec. 5, 2019).

Instead, this Court has repeatedly equated an organization’s interests with those of
its members for standing purposes. E.g., Tex. Dep’t of Ins. v. Tex. Ass’n of Health

Plans, No. 03-19-00185-CV, 2020 WL 1057769, at *2 (Tex. App.—Austin Mar. 5,

2020, no pet. h.).

Finally, to the extent that Texas law permits an organization to sue on its own

behalf, the trial court did not make the necessary factual findings to allow Organiza-

tional Plaintiffs to do so. Even under Havens, “[n]ot every diversion of resources to
counteract the defendants’ conduct . . . establishes an injury in fact.” City of Kyle,

626 F.3d at 238 (citing ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 305 (5th Cir.

2000)). Instead, an organization must show a “concrete and demonstrable injury to

the organization’s activities—with the consequent drain on the organization’s re-

sources—that constitutes far more than simply a setback to the organization’s ab-

stract social interest.” Havens, 455 U.S. at 379. Here, Organizational Plaintiffs effec-
tively admit the defendant’s conduct impacts only whether they will educate people

to vote by mail or in person. E.g., 3RR.77. Such shifts do not establish standing be-

cause they do not significantly “differ from the [organization’s] routine . . . activi-

ties.” City of Kyle, 626 F.3d at 238. For example, Organizational Plaintiffs have not

25
pointed to any “specific projects” they have “had to put on hold or otherwise curtail

in order to respond” to Travis County’s conduct. Id.

Because Plaintiff Organizations have not identified any individual member who

would have standing to maintain this case, they lack standing to pursue their policy
goal of expanding access to mail-in ballots through courts, and they must seek redress

through the ordinary political process.

II. Plaintiffs Seek an Impermissible Advisory Opinion Regarding Claims

that Are Not Yet Ripe.
Plaintiffs’ requests are also not remediable through this action because Texas
law does not afford its courts “the power to counsel a legal conclusion on a hypo-

thetical or contingent set of facts.” Waco ISD v. Gibson, 22 S.W.3d 849, 853 (Tex.

2000) (citing Patterson v. Planned Parenthood of Hous. & S.E. Tex., Inc., 971 S.W.2d
439, 444 (Tex. 1998)). This restriction takes two forms: a ripeness requirement and

a bar against advisory opinions. While its ruling is somewhat ambiguous, the trial

court appears to have found the case to be ripe because of (a) “government imposed

social distancing” that it speculated was likely “to continue through the elections

this year,” or (b) a “public health risk” that would continue even if that social dis-

tancing were “eas[ed].” CR.959-60.

But the “government imposed social distancing” requirements that the court

anticipated continuing through November, CR.959, began to be reduced within

hours of the temporary injunction. Executive Order Nos. GA-16 and GA-17. Such
actions further demonstrate the rapid development of the science of COVID-19 pre-

26
vention and government responses to this disease. As a result, any claim that a par-

ticular individual will be disabled from attending the polls in July (or November) was

not ripe at the time of suit and remains unripe today. The trial court exceeded its

jurisdiction when it “eschew[ed] the ripeness doctrine” in the name of expediency

and thereby “creat[ed] an impermissible advisory opinion.” Patterson, 971 S.W.2d

at 442.

A. Plaintiffs’ claims are unripe because they are based on

contingencies that have not yet come to pass.
As an initial matter, claims that any individual or group will be unable to vote
months from now are not yet ripe in light of the rapidly evolving situation. Ripeness

is “‘peculiarly a question of timing.’” Perry, 66 S.W.3d at 250 (quoting Blanchette v.

Conn. Gen. Ins. Corp. (“Regional Rail Reorganization Act Cases”), 419 U.S. 102, 140
(1974)). A claim ripens upon the existence of “‘a real and substantial controversy

involving genuine conflict of tangible interests and not merely a theoretical dis-

pute.’” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (quoting

Bexar-Medina-Atascosa Ctys. Water Control & Improvement Dist. No. 1 v. Medina Lake

Prot. Ass’n, 640 S.W.2d 778, 779-80 (Tex. App—San Antonio 1982, writ ref’d

n.r.e.)). “A case is not ripe when the determination of whether a plaintiff has a con-

crete injury can be made only ‘on contingent or hypothetical facts, or events that

have not yet come to pass.’” In re DePinho, 505 S.W.3d 621, 624 (Tex. 2016) (orig.

proceeding) (per curiam) (alteration omitted) (collecting cases); see also Patterson,
971 S.W.2d at 442 (quoting 13A Charles A. Wright, et al., Federal Practice and Pro-

cedure § 3532 (2d ed. 1984)).

27
 Plaintiffs’ claims rely on two contingent chains of events. First, they have made

no attempt to demonstrate that the Executive—which has rapidly addressed and

continue to address the spread of COVID—will not take sufficient precautions to

enable safe in-person voting. Second, whether any particular individual satisfies sec-
tion 82.002’s definition of disability on account of COVID-19 necessarily changes

over time because the Election Code is time-specific. Plaintiffs do not assert, and the

trial court did not find, that any particular Individual Plaintiff (or member of Organ-
izational Plaintiffs) will be disabled on election day because he is currently experi-

encing symptoms of COVID-19. Nor could they. COVID-19 has a limited incubation

period, and Plaintiffs’ evidence demonstrates that someone who is sick now likely

will not be at risk on Election Day. 3RR.68-70. Instead, their focus is on the risk of

transmission and government measures to manage that risk.

For the purposes of its plea to the jurisdiction, the State did not dispute that legal
impediments to a particular individual’s ability to vote in person that derive from an

illness—for example, a quarantine order—may bear on whether an individual meets

the definition of “disability.” See Tex. Att’y Gen. Op. No. KP-0149 (2017). But
those impediments have fundamentally changed even while this appeal has been

pending, further underscoring that the dispute was not ripe at the time of filing. As

of the time of this filing, Texas is projected to be fully open by July. Indeed, the Su-
preme Court has concluded the Texas bar exam—which routinely draws a crowd

28
larger than any polling place—can be safely administered within days of the sched-

uled election.15

Nor are these developments surprising. Plaintiffs’ own evidence demonstrates

that medical science’s understanding of COVID-19 is evolving—as is our under-

standing of what protective measures are necessary. For example, Plaintiffs submit

statements by the CDC that “COVID-19 is a new disease and we are still learning

about how it spreads.” 3RR.119. Their own epidemiologist acknowledged that scien-
tists are still studying factors that may impact the dangerousness of COVID-19 in

July—for example, the effectiveness of masks in containing the spread of disease and

seasonality. 2RR.91, 97-98.

Assuming a healthy person’s risk of contracting a sickness is itself a disability

(and it is not), this evidence does not establish a ripe dispute that voters’ risk of con-

tracting COVID-19 is any higher at the polls than other activities in which they are
engaged. For example, the only Individual Plaintiff (or member of an Organizational

Plaintiff) that spoke to the question acknowledged that he periodically goes to the

grocery store. 3RR.53-54. Plaintiffs’ epidemiologist, Dr. Troisi, admits that the same

risk factors that exist at polling places exist in other locations such as grocery stores

and gas stations. 2RR.94-95. Moreover, she acknowledged that she did nothing to

educate herself about what steps can be and have been taken by election officials to

keep voters safe. 2RR.90. And she did not attempt to explain why a voter’s risk at

the polls would be higher than any other activity in which voters will likely engage

15
Thirteenth Emergency Order Regarding the COVID-19 State of Disaster, No. 20-
9060 (Tex. Apr. 29, 2020).

29
now that the stay-at-home orders are beginning to relax. Instead, she relies on anec-

dotal observations that she made in unrelated contexts—such as individuals walking

for exercise in her neighborhood—to conclude that it would be “very hard” to main-

tain appropriate distancing at a poll. 2RR.89. Such speculation does not establish that

voters will be unsafe if local election officials follow the guidelines established by the

Secretary of State and CDC.

Though Plaintiffs offered the testimony of three other experts, they do not fill

this gap in proof.16 First, they offered Dr. Carroll, a primary-care physician, to explain

what protective equipment his office uses when (but only when) a patient is sus-

pected to have COVID-19. 2RR.120. Because he is an internist, not an epidemiolo-

gist, Dr. Carroll deferred to Dr. Troisi on the spread of the disease and any public-

health measures that should be taken. 2RR.115-116; 2RR.118. Second, a TDP official

testified about questions he had received regarding the definition of “disability” but

acknowledged that he was not offering an opinion on what conduct might put voters’

health at risk. 2RR.68. Third, Plaintiffs offered a declaration from a lawyer who has

been described as “expert in election analyses concerning racially polarized voting,”

O’Cana v. Salinas, No. 13-18-00563-CV, 2019 WL 1414021, at *9 (Tex. App.—Cor-

pus Christi-Edinburg Mar. 29, 2019, pet. denied) (mem. op.), but who has no appar-

ent expertise in elections taking place during a pandemic. 3RR.34-50. Because there

16
Plaintiffs initially proposed to offer the declarations of two additional experts.
CR.418-66, 468-534. However, the State objected to the court’s consideration of
these declarations absent the opportunity to cross-examine the declarants, and the
declarations were ultimately not admitted at the hearing. Cf. 1RR.5-6.

30
is “nothing in [these witnesses’] background that would indicate an expertise” in

public-health measures that are required to protect voters during a pandemic, they

do not satisfy Plaintiffs’ burden of proof. O’Cana, 2019 WL 1414021, at *9 (“[A]

claim will not stand or fall on the mere ipse dixit of a credentialed witness.”) (citing
City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009)). This is particularly

true in light of the multiple steps that the Governor and other state officials have

taken to protect voters’ health. Supra at 5-7.

Equally unavailing are Plaintiffs’ other closely related theories of harm, namely

that they need to prepare for upcoming elections and fear they may be prosecuted if

they encourage individuals to vote by mail who are not entitled to do so. The Third

Court has repeatedly held that the “mere possibility” that someone “might apply

[a] challenged rule . . . at some point in the future is not sufficient to raise a justiciable

controversy.” VanderWerff v. Tex. Bd. of Chiropractic Examiners, No. 03-12-00711-

CV, 2014 WL 7466814, at *2 (Tex. App.—Austin Dec. 18, 2014, no pet.) (mem.

op.). Whether any state or local executive officer “will bring an enforcement action

. . . depends on many factual contingencies that have not yet come to pass and are
not before the Court.” Trinity Settlement Servs. v. Tex. State Sec. Bd., 417 S.W.3d

494, 506 (Tex. App.—Austin 2013, pet. denied). Because these alleged injuries re-

main contingent on facts not yet known, Plaintiffs claims are not yet ripe.

31
 B. Plaintiffs seek an advisory opinion because they assume
contingencies that may never occur.
Plaintiffs also seek an impermissible advisory opinion. The separation of powers

enshrined in the Texas and U.S. Constitution “prohibit[s] courts from issuing advi-

sory opinions because such is the function of the executive rather than the judicial

department.” Tex. Ass’n of Bus., 852 S.W.3d at 444 (citing Fireman’s Ins. Co. of New-

ark v. Burch, 442 S.W.2d 331, 333 (Tex. 1968)); Morrow v. Corbin, 62 S.W2d 641, 644

(Tex. 1933); see also, e.g., Steele Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101

(1998) (collecting cases). Under Texas law, the hallmark of an advisory opinion is
that plaintiffs “have posed a problem which is hypothetical, ‘iffy’ and contingent.”

Fireman’s Ins. Co., 442 S.W.2d at 334. As with ripeness, a case is impermissibly con-

tingent if the relevant facts are still evolving, Waco ISD, 22 S.W.3d at 853, but the
question is less strictly about timing than about whether the court advising what the

law could be on a hypothetical set of facts. Patterson, 971 S.W.2d at 444; see also Fin.

Comm’n of Tex., 418 S.W.3d at 592 (Johnson, J., concurring in part).

As discussed above, Plaintiffs claimed that they brought suit because (at the

time) “[p]ublic health experts and government agencies and officials at all levels”

were “imposing social distancing measures” that interfered with a voter’s ability to

vote in person. CR.33-34. It was predictable that those measures would change be-

fore July. They have, in fact, changed. And they will almost certainly change again

between now and election day. While we can all “well appreciate that the parties

would prefer a definite answer” as to what measures will be necessary to protect

voters later this year “rather than to take an educated guess,” that does not relieve

32
Plaintiffs of their obligations to ensure that these “questions are presented in a justi-

ciable form.” Fireman’s Ins. Co., 442 S.W.2d at 333. Because this case “involves un-

certain or contingent events that [will not occur] as anticipated” by the complaint

“and may not occur at all,” it seeks an advisory opinion that is outside the jurisdic-
tion of this Court. Bridgeport ISD, 447 S.W. 3d at 917; Calif. Prod., Inc. v. Puretex

Lemon Juice, Inc., 334 S.W.2d 780, 781 (Tex. 1960) (“The Uniform Declaratory

Judgments Act does not license litigants to fish in judicial ponds for legal advice.”).

III. Because Plaintiffs Have Not Pleaded a Violation of the Election Code,
They Have Established Neither Jurisdiction Nor Entitlement to a
Temporary Injunction.
Assuming that Plaintiffs could establish a justiciable dispute, they have not

pleaded—let alone proven—any violation of the Election Code. Without such a vio-

lation, they can establish neither a waiver of sovereign immunity nor an entitlement
to a temporary injunction.17

A. Plaintiffs have pointed to no violation of the Election Code.

As discussed above, though the Constitution protects a fundamental right to

vote, that right does not encompass a right to vote by mail. McDonald, 394 U.S. at

807; see also, e.g., Ray v. Texas, No. 2:06-cv-385, 2008 WL 8441630, at *6 (E.D. Tex.

Oct. 31, 2006), vacated on other grounds sub. nom. Ray v. Abbott, 261 Fed. App’x 716

(5th Cir. 2008); accord Fuentes v. Howard, 423 S.W.2d 420, 523 (Tex. App.—El Paso

1967, writ dism’d). As there is no constitutional right to vote by mail, it is available

17
Because the trial court’s temporary injunction applies both to Travis County and
the State, this appeal implicates both governmental and sovereign immunity. This
brief will refer to both as sovereign immunity for simplicity.

33
only on the terms the Legislature provides. McDonald, 394 U.S. at 807. In Texas,

those terms have long been “deemed mandatory in nature” and to “permit no ap-

plication of the substantial compliance rule.” Kelly v. Scott, 733 S.W.2d 312, 313-14

(Tex. App.—El Paso 1987, no writ) (citing Branaum v. Patrick, 643 S.W.2d 745 (Tex.
App.—San Antonio 1982, no writ)).

The interpretation adopted by the trial court ignores this longstanding rule of

construction, which was deliberately chosen by the Legislature to address “many of

the abuses now prevailing in absentee voting.” McGee v. Grissom, 360 S.W.2d 893,

894 (Tex. App.—Fort Worth 1962, no writ.) (per curiam) (discussing Act of May

12, 1959, 56th Leg.,R.S., ch. 483, § 6, 1959 Tex. Gen. Laws 1055, 1060)); see also

Commission on Federal Election Reform, Building Confidence in U.S. Elections § 5.2

(2005) (discussing ongoing problems with absentee ballots). In interpreting a statute,

the Court is to give effect to the Legislature’s intent by looking to the statute’s plain
language. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). Courts presume that

the Legislature included each word in the statute for a purpose and that words not

included were purposefully omitted. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008).
Moreover, courts presume that the Legislature understood—and followed—the

rules of English grammar. Tex. Gov’t Code § 311.011; see also Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012) (de-
scribing presumption as “unshakeable”).

Properly construed, section 82.002 does not permit an otherwise healthy indi-

vidual to vote by mail merely because going to poll carries a risk to the public health

that even Plaintiffs’ expert “cannot quantify.” See 2RR.117. Instead, it permits a

34
qualified voter to vote by mail “if the voter has a sickness of physical condition that

prevents the voter” from voting in person “without a likelihood of . . . injuring the

voter’s health.” Tex. Elec. Code § 82.002(a). The clause that does the primary work

of the sentence is “voter has a sickness or physical condition.” Sidney Greenbaum,

The Oxford English Grammar § 6.3 (1996). The remainder of the sentence begin-

ning with the word “that” is a dependent clause defining sickness and condition. Id.

§ 5.6; Spradlin v. Jim Walker Homes, Inc., 34 S.W.3d 578, 580-81 (Tex. 2000). This
dependent clause does not become relevant unless and until the Court determines

that Plaintiffs (or the voters Organizational Plaintiffs purport to represent) satisfy

the clause that they have a “sickness or physical condition.” Greenbaum, supra, at

§§ 6.5, 6.9.

An otherwise healthy person does not have a “sickness or physical condition”

within the meaning of section 82.002 merely because he subjectively fears contract-
ing COVID-19. Because the Election Code does not define these operative terms,

courts consult common usage. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d

830, 838 (Tex. 2018). The common understanding of “sickness” is the “state of
being ill” or having “a particular type of illness or disease.” New Oxford Am. Dic-

tionary 1623 (3d ed. 2010). A person ill with COVID-19 would certainly qualify as

having a sickness. However, a fear of contracting a sickness does not fall within the
terms selected by the Legislature—namely, that a voter “has a sickness.” Tex. Elec.

Code § 82.002.

35
 Nor does a fear of contracting COVID-19 qualify as a “physical condition.” The

common understanding of the term “physical” is “of or relating to the body as op-

posed to the mind.” New Oxford Am. Dictionary 1321. “Condition” is defined as

“an illness or other medical problem.” Id. at 362. Combining the two words, a
“physical condition” is an illness or medical problem relating to the body. For ex-

ample, the Legislature first allowed individuals with a physical disability to vote by

mail in 1935 during the height of the polio epidemic. Act of Oct. 30, 1935, 44th Leg.,
2nd C.S., ch. 437, § 1, 1935 Tex. Gen. Laws 1700. Some of the people who contracted

this highly virulent disease required long-term treatment in iron lungs even after they

no long suffered active infections.18 Such individuals would have a physical condition
that prevents them from voting in person.

By contrast, to the extent that a fear of contracting COVID-19, without more,

could be described as a “condition,” it is a mental or emotional condition, not a

physical condition as required by the Election Code. The distinction between sick-

ness and condition is significant: The Legislature used no modifier for “sickness,”

allowing a qualified voter with mental illness to vote by mail.19 By contrast, it limited
the term “condition” to “physical condition.” The Legislature is presumed to have

18
E.g., JoNel Aleccia, 60 Years in an iron lung: U.S polio survivor worries about new
global threat, NBC News, Nov. 30, 2013, http://www.nbcnews.com/healthmain/60-
years-iron-lung-us-polio-survivor-worries-about-new-2D11641456 (describing expe-
rience of someone who contracted polio in 1953).
19
See Tex. Att’y Gen. Op. No. KP-0149 (2017) (concluding that behavioral abnor-
mality sufficient to result in civil commitment qualifies as a sickness).

36
“intended to differentiate between the meaning of construction” when it uses dif-

ferent words or phrases. Guarantee Mut. Life Ins. Co. v. Harrison, 358 S.W.2d 404,

407 (Tex. App.—Austin 1962, writ ref’d n.r.e.). The Legislature undoubtedly could

have allowed more widespread voting by mail, but it did not and was not required to
do so. See McDonald, 394 U.S. at 810-11.

Plaintiffs’ argument to the contrary—that because COVID-19 poses a risk to the

public health, all voters are disabled—is without foundation. To begin with, it ig-
nores that the relevant term requires a “likelihood” of injury to a particular “voter’s

health.” Tex. Elec. Code § 82.002(a). The terms “likely” and “likelihood” have

“different shades of meaning,” but, in legal contexts, they “[m]ost often . . . indi-

cate[] a degree of probability greater than five on a scale of one to ten.” Bryan A.

Garner, Modern Legal Usage 530 (2d ed. 1995); accord New Oxford Am. Dictionary

1012. Plaintiffs have made no effort to prove that COVID-19 makes it more likely
than not that any particular voter will become ill by voting in person.

But even if some lesser degree of likelihood sufficed, Plaintiffs’ reading inverts

the terms of section 82.002. This can be seen on the face of the complaint, which
asks for a declaration that all Texas voters are disabled “regardless of age and phys-

ical condition.” CR.11. And it is confirmed by looking to the ordinary rules of gram-

mar: “without a likelihood . . . of injuring the voter’s health” is an adverbial clause
twice subordinated to the requirement that a voter has a “sickness or physical con-

dition.” Greenbaum, supra, at § 6.11, Figure 6.4.4. To elevate this clause to the

prominence ascribed by Plaintiffs would be to rewrite the sentence and to violate the

rule that a court is to take “statutes as [it] find[s] them and construe them so that no

37
part is surplusage, but so that each word has meaning.” Shinogle v. Whitlock, No. 18-

0703, 2020 WL 855237, at *3 (Tex. Feb. 21, 2020) (per curiam) (quotation marks

omitted). Courts “presume that the Legislature is bound to know the consequence s

of its actions.’” Cadena Commercial USA Corp. v. TABC, 518 S.W.3d 318, 338 (Tex.
2017). The “court may not judicially amend a statute” by adding or deleting words

simply because it seems ill-advised under the circumstances. Id. at 337.

B. Without a violation of the Election Code, Plaintiffs cannot

overcome sovereign immunity.
Because Plaintiffs have not pointed to a violation of the Election Code, they can-
not overcome sovereign immunity. Private parties may not sue a unit of the State

absent the State’s consent. Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542

(Tex. 2003). And it is Plaintiffs’ burden to “affirmatively demonstrate the court’s

jurisdiction by alleging a valid waiver of immunity.” Id. A waiver may only be “ef-

fected by clear and unambiguous language.” Tex. Gov’t Code § 311.034; TxDOT v.

City of Sunset Valley, 146 S.W.3d 637, 641 (Tex. 2004). Any ambiguity weighs against

a waiver—particularly in the election context. Thiel, 535 S.W.2d at 2 (“Elections are

political matters, and the courts may take jurisdiction . . . only if the law has specifi-

cally granted such authority.”). Plaintiffs have invoked Election Code section

273.081, Civil Practice and Remedies Code section 37.003, and the ultra vires and

constitutional-violations doctrines. The trial court did not specify upon what sup-

posed waiver of immunity it relied, but none is a valid ground for jurisdiction.20

20
Plaintiff-Intervenors also cited Texas Civil Practice & Remedies Code § 65.011.
CR.50. To the extent that was intended to invoke a waiver of immunity, it is without

38
 1. By its express terms, Election Code section 273.081 only provides a
remedy for violations of the Election Code.
Election Code section 273.081 does not expressly allow private parties to sue ei-

ther the State or a county, stating only that “[a] person who is being harmed or is in

danger of being harmed by a violation or threatened violation of this code is entitled

to appropriate injunctive relief.” This is insufficient to waive sovereign immunity in

this case for three reasons.

First, section 273.081 is a remedy provision, not a waiver. The Legislature typi-

cally uses certain phrases “to confirm its intent to waive immunity from suit.” Wich-

ita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003). A statute may ex-

pressly “provide[] that a state entity may be sued or that ‘sovereign immunity to suit

is waived.’” Id. None of those “magic words” are present in section 273.081. Only
on “rare occasions” has the Texas Supreme Court found that a statute waives sov-

ereign immunity “absent ‘magic words,’ such as the State’s ‘sovereign immunity to

suit and liability is waived.’” Id.

To determine whether a statute creates one of those rare immunity waivers that

does not use the usual “magic words,” a court considers: (1) “whether the statutory

provisions, even if not a model of clarity, waive immunity without doubt”; (2) “am-

biguity as to waiver is resolved in favor of retaining immunity”; (3) “immunity is

waived if the Legislature requires that the [governmental] entity be joined in a law-

basis. Cf. City of Dallas v. England, 846 S.W.2d 957, 960 (Tex. App.—Austin 1993,
writ dism’d w.o.j.) (affirming sovereign immunity in a section-65.011 case).

39
suit”; (4) “whether the Legislature provided an objective limitation on the govern-

mental entity’s potential liability”; and (5) “whether the statutory provisions would

serve any purpose absent a waiver of immunity.” Harris Cty. Hosp. Dist. v. Tomball

Reg’l Hosp., 283 S.W.3d 838, 844 (Tex. 2009) (citing Taylor, 106 S.W.3d at 697-98,
700). Section 273.081 does not exhibit any of these characteristics. It speaks neither

to immunity (factors 1 and 2), nor to the role or potential liability of a government

entity in a law suit (factors 3 and 4). And, section 273.081 serves a purpose without
waiving immunity: It creates a private cause of action where one previously did not

exist. City of El Paso, 505 S.W.3d at 139; cf. Brown v. De La Cruz, 156 S.W.3d 560,

567 (Tex. 2004) (stating that “causes of action may be implied only when a legisla-

tive intent to do so appears in the statute as written”).

Second, for the reasons discussed above, Plaintiffs’ request is based on a funda-

mental misunderstanding of what the Election Code requires. As a result, even if

section 273.081 did waive immunity for violations of the Election Code, Plaintiffs’

claims would fall outside its ambit.

Third, assuming that Plaintiffs could overcome these problems, Plaintiffs have
not identified any violation of the Election Code. To the contrary, both in their com-

plaint and at the hearing, Plaintiffs made clear that they wanted an injunction “so

that they do not risk violating the law.” CR.38. That is, “[they]’re asking this Court
to clarify” the law, not accusing someone of violating it. 2RR.38. As discussed in

more detail below, there is no general waiver of immunity to seek clarification of the

law.

40
 2. The UDJA does not fill the gap and allow a plaintiff to seek a
declaration of what a statute means.
Pointing to Holt v. Texas Department of Insurance, No. 03-17-00758-CV, 2018

WL 6695725 (Tex. App.—Austin Dec. 20, 2018, pet. denied), Plaintiffs have also

asserted that the UDJA creates jurisdiction “to have a court determine, quote ‘any

question of construction or validity under,’. . . [a] statute.” 2RR.167. Plaintiffs mis-

understand how the UDJA and sovereign immunity interact.

Texas law could not be clearer that the UDJA is “not a general waiver of sover-

eign immunity.” Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388

(Tex. 2011); see also, e.g., Town of Shady Shores v. Swanson, No. 18-0413, 2019 WL

6794327, at *6 (Tex. Dec. 13, 2019). Thus, sovereign immunity “will bar an other-

wise proper [U]DJA claim that has the effect of establishing a right to relief” on be-
half of a private individual or entity “against the state for which the Legislature has

not waived sovereign immunity.” Sawyer Tr., 354 S.W.3d at 388.

Holt, in which plaintiffs challenged the constitutionality of a rule regarding tem-

porary income benefits, does not hold otherwise. 2018 WL 6695725, at *1. Courts

have held that the UDJA waives immunity for challenges to the constitutionality of

a statute, which may require some amount of construction. TxDOT v. Sefzik, 355

S.W.3d 618, 622 (Tex. 2011); McClane Co. v. Tex. Alcoholic Beverage Comm’n, 514

S.W.3d 871, 875 (Tex. App.—Austin 2017, pet. denied). But Plaintiffs disclaimed

any challenge to the constitutionality of section 82.002. 2RR.37.

Because this action is one that seeks only a “description of the law’s require-

ments,” 2RR.164, the UDJA does not waive immunity. It is well-established that the

41
“UDJA does not waive . . . immunity when the plaintiff seeks a declaration of his or

her rights under a statute or other law.” Sefzik, 355 S.W.3d at 621. Because Plaintiffs

seek no more than a clarification of what they maintain is an ambiguous statute, there

has been no waiver, and the case should have been dismissed. Trinity Settlement
Servs., 417 S.W.3d at 505; McClane, 514 S.W.3d at 876 (“Precedent from the Texas

Supreme Court and from this Court compels us to conclude that the UDJA does not

waive sovereign immunity for ‘bare statutory construction’ claims.”).

3. There is no jurisdiction under the ultra vires and constitutional-

violation doctrines.
This analysis does not change merely because Plaintiffs invoke the common-law

doctrine that there is no immunity for ultra vires conduct or constitutional violations.

This is true for three separate reasons.

First, Plaintiffs cannot rely on the constitutional-violation doctrine because they

expressly disclaimed any constitutional claims in this case. The constitutional-viola-

tion doctrine waives immunity only to the extent a plaintiff has “plead[ed] a facially

valid constitutional claim.” Garcia v. Kubosh, 377 S.W.3d 89, 96 (Tex. App.—Hou-

ston [1st Dist.] 2012, no pet.) (collecting cases). The Original Petition made conclu-

sory allegations that section 82.002 was unconstitutional. CR.8. But Plaintiffs subse-

quently disclaimed any intent to pursue such a theory in this action, 2RR.37, so they

cannot invoke a waiver of sovereign immunity based on purported constitutional vi-

olations.

Second, Plaintiffs’ cannot assert an ultra vires claim due to the redundant-reme-

dies doctrine. Under this doctrine, a court will not entertain an ultra vires claim

42
brought under the UDJA when “the Legislature created a statutory waiver of sover-

eign immunity that permits the parties to raise their claims through some other ave-

nue.” Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 79 (Tex. 2015)

(citing Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665, 669
(Tex.App.–Austin 2006, no pet.) (en banc) (“When a statute provides an avenue for

attacking an agency order, a declaratory judgment action will not lie to provide re-

dundant remedies.”); see also Alamo Express, Inc. v. Union City Transfer, 309 S.W.2d
815, 827 (1958). Here, if Plaintiffs had pleaded actual illegal action, they would have

been allowed to proceed under Texas Election Code section 273.081 against the in-

dividual responsible, and the ultra vires claim would have been redundant. Because

they have not, the ultra vires doctrine is inapplicable. Cf. City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex. 2009) (“Stated another way, [ultra vires] suits do not seek

to alter government policy but rather to enforce existing policy.”).

Third, these common-law doctrines could support relief only against the Travis

County Clerk. Ultra vires suits “do not attempt to exert control over the state—they

attempt to reassert the control of the state.” Id. As a result, such claims will lie not
against the State, but rather against the official alleged to be violating state or federal

law. E.g., Sefzik, 355 S.W.3d at 621. The only named individual supported the re-

quested relief at the hearing—and therefore cannot be said to have acted ultra vires
against Plaintiffs (if she has acted at all).21 As a result, the ultra vires doctrine cannot

support the requested relief.

21
Whether the State could sue the Travis County Clerk for a violation of State law is
a separate question not before the Court.

43
 C. Without a violation of the Election Code, Plaintiffs cannot
establish the elements of a temporary injunction.
For similar reasons, because Plaintiffs have not shown that the named defendant

has violated the Election Code, they failed to meet their burden to merit a temporary

injunction. To obtain such extraordinary relief, the applicant must plead and prove:

(1) a cause of action against the defendant, (2) a probable right to the relief sought,

and (3) a probable, imminent, and irreparable injury. Walling v. Metcalfe, 863 S.W.2d

56, 57 (Tex. 1993) (per curiam). For the reasons discussed extensively above, Plain-

tiffs can plead no cause of action under the Election Code because their reading of
the statute is incorrect. Moreover, Plaintiffs’ asserted injuries are inherently specu-

lative. Their own medical expert acknowledged that he “cannot quantify” how dan-

gerous the pandemic will be to the public—let alone to any individual—in July.
2RR.117. Their epidemiologist did not bother to contact Travis County election of-

ficials to educate herself about what precautions they intended to take to protect vot-

ers—let alone analyze whether those measures would be effective. 3RR.90. Without
some form of analysis, such “[f]ear or apprehension of possible injury is insufficient

to support a finding of imminent injury.” DPS v. Salazar, 304 S.W.3d 896, 908 (Tex.

App.—Austin 2009, no pet.) (citing Frey v. DeCordova Bend Estates Owners Ass’n,

647 S.W.3d 246, 248 (Tex. 1983)). It is certainly not sufficient to overcome the

State’s paramount interest in bringing “order, rather than chaos, [to] the democratic

process” by requiring uniform election laws. Storer v. Brown, 415 U.S. 724, 730

(1974).

44
IV. The Temporary Injunction Is Impermissibly Overbroad.
Even if Plaintiffs established an entitlement to enjoin Travis County, the trial

court’s decision to extend that injunction to the State and a wide swath of state actors

was impermissible. A temporary injunction is an extraordinary remedy and never is-

sues as a matter of right. Walling, 863 S.W.2d at 57. To obtain a temporary injunc-

tion, Plaintiffs “‘must plead and prove three specific elements: (1) a cause of action

against the defendant; (2) a probable right to the relief sought; and (3) a probable,

imminent, and irreparable injury in the interim.” Tex. Ass’n of Bus., 565 S.W.3d at
437 (emphasis added) (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.

2002)); see also, e.g., Walling, 863 S.W.2d at 57. “If [this] burden is not discharged

as to any one element,” a plaintiff “is not entitled to extraordinary relief.” Dall. An-
esthesiology Assocs., P.A. v. Tex. Anesthesia Grp., P.A., 190 S.W.3d 891, 898 (Tex.

App.—Dallas 2006, no pet.). The trial court also balances the equities, “including a

consideration of the important factor of the public interest.” Methodist Hosps. of Dall.
v. Tex. Indus. Accident Bd., 798 S.W.2d 651, 660 (Tex. App—Austin 1990, writ

dism’d w.o.j.).

Most importantly, a trial court abuses its discretion “when the evidence does

not reasonably support the conclusion that the applicant has a probable right of re-

covery.” State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975). In this instance,

Plaintiffs face an elevated burden of proof because rather than seeking to maintain
the status quo, they ask the judiciary to “extend the option to vote by mail to all

registered voters.” CR.49. Moreover, the trial court ordered that the State post the

45
availability of voting by mail on “the appropriate agency website.” CR.961. An in-

junction that requires such affirmative action is considered a “mandatory” injunc-

tion. Black’s Law Dictionary 904 (10th ed. 2014). “[T]he issuance of a preliminary

mandatory injunction is proper only” if the plaintiff demonstrates through compe-

tent evidence that such “a mandatory order is necessary to prevent irreparable injury

or extreme hardship.” Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202,

208 (Tex. 1981) (emphasis added).

The injunction fails to satisfy Texas Rule of Civil Procedure 683, exceeds the

jurisdiction of the court, and is lacking in any evidentiary basis.

A. The temporary injunction does not satisfy Rule 683.

As an initial matter, the temporary injunction is unclear about what it purports
to enjoin. Texas Rule of Civil Procedure 683 requires (among other things) that an

injunction “set forth the reasons for its issuance” and to be “specific in terms,” in-

cluding by “describ[ing] in reasonable detail . . . the act or acts sought to be re-

strained.” Moreover, it is binding only on parties to the action and “those persons

in active concert or participation with them.” Tex. R. Civ. P. 684. “The require-

ments of 683 are mandatory and must be strictly followed” or “the injunction order

is subject to being declared void and dissolved.” InterFirst Bank San Felipe, N.A. v.

Pay Constr. Co., 715 S.W.3d 640, 641 (Tex. 1986) (per curiam) (collecting cases).

The injunction is ambiguous as to what extent it is meant to apply outside of

Travis County. Plaintiffs have asserted elsewhere that the injunction is binding in all

parts of the State. See, e.g., Mot. for Prelim. Inj. At 10, Texas Democratic Party v. Ab-

bott, 5:20-CV-00438-FB (W.D. Tex.), ECF No. 10. The State (as an entity) does not,

46
however, enforce early-voting rules either inside or outside Travis County. See Tex.

Elec. Code § 86.001(a). Instead, first-line responsibility remains where it has always

been: on county officials.

There are 254 counties in Texas, 253 of which are not parties to this action and
thus are not bound by this injunction. Tex. R. Civ. P. 683. If the County Clerk of

Kleberg County, which has had fewer than a dozen cases of coronavirus as of May 8,

asks the Secretary of State if the court’s opinion applies in Kleberg County, can she
answer “no”?22 If an individual tells voters in Mitchell County, which has reported

only one confirmed case, that they are nonetheless disabled by fear of coronavirus,

can local prosecutors enforce the criminal sanctions passed by the Legislature? If not,
on what basis? The order does not say. For that reason, to the extent that Plaintiffs’

out-of-court assertions are correct and the injunction applies outside Travis County,

it is impermissibly overbroad. E.g., Tex. Health & Human Servs. Comm’n v. Advocates
for Patient Access, 399 S.W.3d 615, 625-29 (Tex. App.—Austin 2013, no pet.).

B. The State’s intervention did not give the trial court jurisdiction or
grounds to extend any relief beyond Travis County.
The only ground Plaintiffs have ever asserted for such a broad order is that the

State’s intervention made the State a party for all purposes. CR.330. The trial court

did not expressly adopt that view, reciting only that the State had intervened to pro-

tect its interest in the uniform application of state law. CR.958. The State’s inter-

vention to preserve the uniform application of state law did not provide grounds to

22
All county-specific counts are derived from Texas Coronavirus Map and Case
Count, N.Y. Times (updated May 8, 2020, 8:27 A.M.E.T.).

47
enjoin the State at all—let alone all officials, at all levels of government, statewide—

for two reasons.

1. As an initial matter, Texas law establishes that a party’s intervention does

not make it a party for all purposes. Texas courts instead recognize an “expansive”
intervention doctrine. State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015). Under

Texas law, any individual may intervene if he “could have brought the same action,

or any part thereof, in his own name, or if the action had been brought against him, he
would be able to defeat recovery, or some part thereof.” Guaranty Fed. Sav. Bank v.

Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990) (emphasis added). A party

may even intervene to challenge the jurisdiction of the court. Good Shepherd Med.

Ctr., Inc. v. State, 306 S.W.3d 825 (Tex. App—Austin 2010, no pet.) (addressing

standing challenge brought by an intervenor).23 As a result, an intervenor may be

aligned with neither the plaintiff nor the defendant, but opposed to both. In re Motor

Co., 442 S.W.3d 265, 274 (Tex. 2014); Kim J. Askew, 1 Tex. Prac. Guide Civil Pre-

trial §§ 10:62-63 (2019).

The trial court should have defined the scope of Texas’s intervention by the in-
terests asserted in its plea in intervention. Corpus Christi People’s Baptist Church v.

Nueces Cty. Appraisal Dist., 904 S.W.2d 621 (Tex. 1995). This is true for all parties,

but it is particularly important when the Attorney General appears on behalf of the
State as intervenor to protect the integrity of and ensure compliance with state law.

23
See also, e.g., Interest of R.M., No. 05-18-01127-cv, 2019 WL 2266388, at *6-7 (Tex.
App.—Dallas May 24, 2019, pet. denied); In re Marriage of J.B. and H.B., 326
S.W.3d 654, 681 (Tex. App.—Dallas 2010, orig. proceeding).

48
Cf. City of Houston v. Savely, 708 S.W.2d 879, 889 (Tex. App.—Houston [1st Dist.]

1986, writ ref’d n.r.e.) (“The State of Texas, as intervenor, was limited to the scope

of relief sought by it in its petition.”).

In this instance, the State intervened at a time when Plaintiffs’ claims were in-
disputably limited to Travis County but ambiguous as to whether they challenged

the constitutionality of section 82.002. CR.8. As its plea made clear, the State limited

its intervention to preserving the uniformity of state election law within Travis
County and, to the extent Plaintiffs were bringing a constitutional challenge, defend-

ing the law. CR.16-23. Texas’s decision to protect its right as a sovereign to enforce

its own law did not make it a defendant or “confer authority on the trial court to

determine rights it is otherwise precluded from determining.” Van Dyke v. Littlemill

Ltd., 579 S.W.3d 639, 649 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (citing

Alexander Dubose Jefferson & Townsend LLP v. Chevron-Phillips Chem. Co., 540
SW.3d 577, 585 (Tex. 2018)).

2. Even if the State did become a party in the sense that it was bound to the

trial court’s judgment that section 82.002 requires Travis County to accept mail-in
ballots from healthy individuals who fear COVID-19, that would not allow the trial

court to enjoin the State. “Immunity from liability and immunity from suit are two

distinct principles. Immunity from liability protects the state from judgment even if
the Legislature has expressly consented to the suit.” TxDOT v. Jones, 8 S.W.3d 636,

638 (Tex. 1999). In other words, even assuming that a claim against the State “may

be brought” under any of the theories that Plaintiffs have advanced, a trial court’s

“remedy may implicate immunity.” Heinrich, 284 S.W.3d at 373. An injunction that

49
may properly run against a state or county officer, nonetheless cannot run against the

State unless the Legislature has permitted it. Id. at 374 (“Parsing categories of per-

missible relief in cases implicating immunity inevitably involves compromise.”) (cit-

ing Douglas Laycock, Modern Remedies 482 (3d ed. 2002)); see also City of Galveston
v. State, 217 S.W.3d 466, 473 (Tex. 2007) (“Legislation rather than logic governs

immunity, just as Holmes said experience rather than logic governs the common

law.”).
In this instance, Texas Election Code section 273.081 and the ultra vires doctrine

allow a court to enjoin officials from violating the Election Code, but it does not waive

immunity against the State. Assuming that authorizing a remedy could waive im-

munity, it could run only against the Travis County Clerk, who is responsible for

processing the ballot applications of the only individuals Plaintiffs have identified as

potentially harmed. Supra at 3-4, 21-22. Texas intervened to the extent necessary to
defend the uniformity and constitutionality of state law. And the Legislature has al-

lowed the State to do so without waiving immunity. See Tex. Gov’t Code

§ 402.010(d).
Preserving the State’s ability to intervene without subjecting it to a statewide

injunction is vital to the proper function of our legal system. “As a sovereign entity,

the State has an intrinsic right to enact, interpret, and enforce its own laws.” Naylor,
466 S.W.3d at 790. At times, that right can be implicated in cases where neither party

has an interest to fully litigate the State’s position. Id. at 789. Under those circum-

stances, the State must intervene to protect its sovereign interest before the question

is decided or lose the right to litigate it on appeal. Id. A party is not required to choose

50
between protecting its vested rights and subjecting itself to litigation that would not

be otherwise permissible. Van Dyke, 579 S.W.3d at 648. Because the trial court could

not otherwise have issued its statewide temporary injunction against the State, it

could not do so because the State intervened to protect its right to enforce its own
law within the bounds of Travis County.

C. Plaintiffs offered no evidence to support relief beyond Travis

County.
Finally, to the extent that the injunction applies outside Travis County, it is un-

supported by competent evidence. This Court typically will not reweigh evidence in

support of a temporary injunction, but a party that completely fails to meet its burden

of proof is not entitled to such extraordinary relief as a matter of law. Dallas Anesthe-

siology, Assocs. P.A., 190 S.W.3d at 898. Here, to show that all voters are disabled by
a fear of contagion, Plaintiffs relied on the testimony of an epidemiologist and a pri-

mary-care physician who admitted under cross examination that their analyses were

limited to Travis County. 2RR.90, 117. Plaintiffs do not purport to offer any evidence
that the dangers are similar in places with lower population density—for example,

Zavala County, which only had one confirmed COVID-19 case as of May 1. To the

contrary, Plaintiffs’ expert acknowledged that the level of risk varies across the State.
2RR.100; 3RR.89. Taking these acknowledgements together, there is no evidence

supporting an injunction outside the geographic area specifically opined on by Plain-

tiffs’ experts.

51
 Prayer
The Court should vacate the temporary injunction and dismiss the case for lack

of jurisdiction. In the alternative, the Court should vacate the temporary injunction

and remand with instructions that its scope be limited to Travis County.

Respectfully submitted.

Ken Paxton Kyle D. Hawkins

Attorney General of Texas Solicitor General

Jeffrey C. Mateer Matthew H. Frederick

First Assistant Attorney General Deputy Solicitor General

Ryan L. Bangert /s/ Lanora C. Pettit

Deputy First Assistant Lanora C. Pettit
Attorney General Assistant Solicitor General
State Bar No. 24115221
Office of the Attorney General lanora.pettit@oag.texas.gov
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697 Counsel for Intervenor-Appellant

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 Certificate of Service
On May 11, 2020, this document was served electronically on Chad Dunn, lead

counsel for Plaintiffs, via chad@brazillanddunn.com, and on Joaquin Gonzalez, lead

counsel for Plaintiff-Intervenors, via Joaquin@texascivilrightsproject.org.

/s/ Lanora C. Pettit

Lanora C. Pettit

Certificate of Compliance
Microsoft Word reports that this brief contains 14,165 words, excluding the por-

tions of the brief exempted by Rule 9.4(i)(1).

/s/ Lanora C. Pettit

Lanora C. Pettit

53