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 § LINA HIDALGO, in her official capacity § as Harris County Judge, § § Defendant. § HARRIS COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION, APPLICATIONS FOR EMERGENCY TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION COMES NOW Plaintiff, Steven Hotze, 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 – Page 1 of 8 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 Page 2 of 8 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: Page 3 of 8 Hon. Lina Hidalgo c/o Harris County Attorney Vince Ryan 1019 Congress, 15th Floor Houston, 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. Page 4 of 8 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. Page 5 of 8 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.