4/23/2020 12:22 AM Marilyn Burgess - District Clerk Harris County Envelope No. 42493895 By: Carolina Salgado Filed: 4/23/2020 12:22 AM CAUSE NO. ______

STEVEN HOTZE, M.D, § IN THE DISTRICT COURT Hotze Health & Wellness Center, § § Plaintiff, § § v. § _____ JUDICIAL DISTRICT § , in her official capacity § as Harris County Judge, § § Defendant. § HARRIS COUNTY,

PLAINTIFF’S ORIGINAL PETITION, APPLICATIONS FOR EMERGENCY TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION

COMES NOW Plaintiff, , MD, files this his Original Petition, Applications for Emergency Temporary Restraining Order, Temporary Injunction, and Permanent Injunction, and for cause would show as follows:

BACKGROUND

In Judge Hidalgo’s Harris County, the heavy hand of local government will fine individuals who refuse to wear a mask, fail to wash their hands, get within six feet of another, or inadvertently touch their face. The rights we enjoy under the Texas Constitution are being trampled on by Judge

Hidalgo, while millions of individuals have lost their jobs and thousands of businesses are on the brink of bankruptcy. If Judge Hidalgo’s Order is not declared unconstitutional and void, once this virus passes, the rights we are afforded under the Texas Constitution will be forever damaged.

Viruses mutate, so there may be a different coronavirus strain next year. Like the flu vaccine, this year’s coronavirus vaccine may not protect against next year’s strain. Will we allow Judge

Hidalgo’s Order to set precedent for future governmental remedies to viruses or diseases? Will it be a little easier to force people to wear certain items? Today a mask, tomorrow a hazmat suit –

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where does it stop? Every day Judge Hidalgo’s Order is allowed to stay in place, the liberties of the residents of Harris County are trampled on.

Judge Hidalgo’s April 22, 2020 Order

On April 22, 2020, in response to the COVID 19 pandemic, the Harris County Judge, Lina

Hidalgo, issued an order that requires all residents of Harris County, age 10 and older, to wear a mask that covers their nose and mouth when outside their home. (Exhibit “A”). She further ordered:

“Residents shall wash their hands before leaving the residence and upon return, and shall take the following additional actions after leaving their residences:

 Stay at least six feet away from others; and  Avoid touching the nose or face.”

(Exhibit “A”).

Any resident who does not wear a mask, is within six feet of another person, or that touches their nose or face is subject to a $1,000 fine.

DISCOVERY CONTROL PLAN

Plaintiffs intend to conduct discovery under Level 2 of the rules set forth in Rule 190 of the Texas Rules of Civil Procedure.

DISCLOSURES

Plaintiffs request Defendant provide disclosures in accordance with Texas Rule of Civil

Procedure 194, including relevant documents.

TRCP 47 STATEMENT

Plaintiffs are suing for injunctive relief and declaratory relief.

Plaintiffs are seeking monetary relief of less than $100,000.00

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JURISDICTION AND VENUE

The Court has subject-matter jurisdiction under the Texas constitution, Article V, § 8, as the amount in controversy exceeds the minimum jurisdictional limits of the court of exclusive interest. The Plaintiff seeks relief that can be granted by courts of law or equity.

The Court has jurisdiction over the Plaintiff’s request for declaratory relief against

Defendant, Lina Hidalgo, because the Declaratory Judgment Act waives governmental immunity when the plaintiff is challenging the validity of an ordinance or order. See Tex. Civ. Prac. & Rem.

Code §§ 37.004, 37.006; Texas Lottery Commission v. First State Bank of DeQueen, 325 S.W.3d

628 (2010; Texas Education Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994).

The Court has jurisdiction over the Plaintiff’s request for injunctive relief against

Defendant, Lina Hidalgo, because the county judge is acting ultra vires by forcing Plaintiff and others to wear masks, wash their hands, not touch their face, or be within six feet of another in violation of Texas law. See City of El Paso v. Heinrich, 284 S.W.3d 366-368-69 (Tex. 2009).

Plaintiff Steven Hotze has standing to seek declaratory and injunctive relief because he has been affected by the county judge’s April 24, 2020 Order to wear a mask.

The Court has personal jurisdiction over each of the Defendants.

Venue is proper because a substantial portion of the events giving rise to the claims occurred in Harris County, Texas. See Tex. Civ. Prac. & Rem. Code §§ 15.002, 15.008, 15.035.

PARTIES

Plaintiff Steven Hotze, M.D. is the owner of Hotze Health & Wellness Center, located at

20214 Braidwood Drive, Katy, Harris County, Texas. Dr. Hotze resides in Harris County, Texas.

Defendant Lina Hidalgo is the elected county judge of Harris County and is being sued in her official capacity as county judge. She may be served with process at the following address:

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Hon. Lina Hidalgo c/o Harris County Attorney Vince Ryan 1019 Congress, 15th Floor , Texas 77002 or wherever she may be found.

STATEMENT OF THE CLAIM

THE DECLARATION

1. Judge Lina Hidalgo’s April 22, 2020 Order Violates the Texas Constitution

The people of the State of Texas have never repealed Article I, § 28 of the Texas

Constitution.

“The legislature has the exclusive authority to define crimes and to designate the punishments for those crimes.” Neil v. State, No. 12-16-00236-R, 2017 Tex. App LEXI 8862, at

*3 (Tex. App. – Tyler Sep. 20, 2017) (citing Grant v. State, 505 S.W.2d 279, 282 (Tex. Crim. App.

1974)). Judge Hidalgo’s April 22, 2020 Order makes it a punishable offense to not wear a mask, fail to wash your hands, touch your face, or get within six feet of another in Harris County.

Specifically, if one chooses to violate her order, the individual can be fined $1,000. Accordingly, the order is void in that it attempts to usurp the authority vested in the Texas Legislature.

2. Judge Hidalgo’s April 22, 2020 Order Violates the Governor’s Executive Orders

Since March 19, 2020, Governor Abbott has issued numerous executive orders. His orders make it clear that they supersede any order issued by a county judge or mayor under the Texas

Disaster Act of 1975. See Texas Government code § 418 et seq. Governor Abbott’s orders do not require citizens of this state to wear masks, wash their hands, refrain from touching their face, or stay six feet away from another. Clearly, Judge Hidalgo has exceeded her authority by issuing orders that are contrary to and more restrictive than those issued by Governor Abbott.

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3. Judge Hidalgo’s April 22, 2020 Order Violates Texas Government Code § 410 et seq.

Texas Government Code § 410 et seq. does not allow Judge Hidalgo to force individuals to wear masks or other facial coverings, wash their hands, refrain from touching their face, or stay six feet away from another. Specifically, the Disaster Act limits Judge Hidalgo’s power to those provisions expressly described in the statute. The Disaster Act does not contain any language forcing private citizens to wear masks, wash their hands, refrain from touching their face, or stay six feet away from another under the threat of fines.

4. Judge Hidalgo Is Violating Article XI, § 5 of the Texas Constitution by Enforcing Her Order to Wear Masks, Wash Hands, Refrain from Touching Face, or Stay Six Feet Away from Another Against the Residents of Harris County

Article XI, § 5 of the Texas Constitution provides that:

[N]o charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.

Tex. Const. article XI, § 5.

Articles 4512.1 through 4512.6 of the Revised Civil Statutes continue to exist as “general laws enacted by the Legislature of this State.” The state constitution therefore forbids city officials to enact or enforce any order “inconsistent” with those laws.

An order that forces one to wear a mask, wash hands, refrain from touching one’s face, or stay six feet away from another during the COVID-19 pandemic is inconsistent with the

“Constitution of the State.” TEX. CONST. article XI, § 5. Specifically, Judge Hidalgo’s Order violates, among other things, Article I § 19 of the Texas Constitution. (See below).

Judge Hidalgo’s April 22, 2020 Order therefore violates Article XI, § 5 of the Texas

Constitution.

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5. Judge Hidalgo’s Order Violates Article I, § 19 of the Texas Constitution

Article I, § 19 states:

“DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.”

By requiring Plaintiff to wear a mask, wash his hands, refrain from touching his face, and stay six feet away from others or face severe fines, Judge Hidalgo violates Article I, § 19 of the

Texas Constitution. Specifically, Plaintiff is deprived of his liberty or freedom to choose to wear or abstain from wearing a mask, to wash or not wash his hands, to touch or refrain from touching his face, or to be within six feet of another. Accordingly, the order is void under the Texas

Constitution.

6. Judge Hidalgo’s Order Impossible to Enforce

After Judge Hidalgo announced her draconian order, HPOU tweeted a response to the mandate, labeling the order as “draconian” and impossible to enforce when murders are up 35 percent. (HPOU Tweet, April 22, 2020).

Joe Gamaldi, the president of the Houston Police Officers’ Union, stated that “making not wearing one [a mask] punishable by law, and asking our officers to enforce it, will do irreparable damage to our relationship with the community. We are already stretched too thin without having to enforce this”. (abc13.com, Harris Co. Mask Order official and comes with $1,000 Fine, April

22, 2020).

7. No Relationship Between Timing of “Mask Order” and Virus-Related Harm

On the same day Harris County Commissioner’s Court plans to close the $60 million-dollar pop-up hospital at NRG Park, because it wasn’t needed, Judge Lina Hidalgo orders anyone over the age of 10 to wear a mask in public, wash their hands, refrain from touching their face, and stay Page 6 of 8

six feet away from others. Lieutenant Governor said it best, “Her abuse of the use of executive orders is the ultimate government overreach. These kind of confused government policies fuel public anger – and rightfully so.”

As described in the attached affidavit of Dr. Shiva ____, there is no compelling interest to implement the Judge Hidalgo’s draconian, nonsensical, over-intrusive order. (Exhibit “B”).

CAUSES OF ACTION

The Plaintiff brings his claims for relief under the Uniform Declaratory Judgment Act.

They also bring suit under City of El Paso v. Heinrich, 284 S.W.3d, 366, 368-369 (Tex. 2009), which authorizes ultra vires claims against public officials who act in violation of state law.

Plaintiff is seeking relief entirely under state law and is not asserting claims that arise under federal law or any federal cause of action.

GROUNDS FOR TEMPORARY INJUNCTION

To obtain a temporary injunction, an 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 in the interim.” Butnaru v. Fort Motor Car Co., 284 S.W.3d 198, 205 (Tex.

2002).

The Uniform Declaratory Judgment Act and Heinrich each provide the plaintiff with a cause of action to seek declaration and injunctive relief against the county judge over her issuance and enforcement of her April 22, 2020 Order.

The Plaintiff has a probable right to relief because the county judge’s enforcement of her

April 22, 2020 order against the residents of Harris County violates Article XI, § 5 of the Texas

Constitution.

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Plaintiff will suffer probable, imminent, and irreparable injury absent a temporary restraining order and temporary injunction because the Defendant is trampling on Plaintiff’s rights under the Texas Constitution and is violating Executive Orders from the Governor and is exceeding her authority under the Texas Government code § 410 et seq. (Exhibit “C”).

DEMAND FOR JUDGMENT

Plaintiff demands the following relief:

a. a declaration that Judge Lina Hidalgo’s April 22, 2020 Order violates Article I § 19 of

the Texas Constitution and is invalid;

b. a declaration that Judge Hidalgo’s April 22, 2020 Order violates Article XI, § 5 of the

Texas Constitution and is invalid;

c. a declaration that Judge Hidalgo’s April 22, 2020 Order violates Governor Greg

Abbott’s coronavirus Executive Orders;

d. a temporary and permanent injunction that prevents Judge Lina Hidalgo from

enforcing her April 22, 2020 Order;

e. an award of nominal and compensatory damages;

f. an award of costs and attorneys’ fees; and

g. all other relief that the Court may deem just, proper, or equitable.

Respectfully submitted,

/s/ Jared R. Woodfill Jared R. Woodfill State Bar No. 00788715 Woodfill Law Firm, P.C. 3 Riverway, Suite 750 Houston, Texas 77056 Tel: (713) 751-3080 Fax: (713) 751-3058 [email protected] (service) [email protected] (non-service) Page 8 of 8