State v. Chris Hollins, in His Official Capacity as Harris County Clerk

Affirmed and Memorandum Opinion filed September 18, 2020.

In The

Fourteenth Court of Appeals

NO. 14-20-00627-CV

THE STATE OF TEXAS, Appellant
V.

CHRIS HOLLINS, IN HIS OFFICIAL CAPACITY AS HARRIS COUNTY
CLERK, Appellee

On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2020-52383

MEMORANDUM OPINION

This is an accelerated appeal from an interlocutory order denying appellant’s
application for temporary injunction. Appellant, the State of Texas, contends the
trial court abused its discretion in denying its application for temporary injunction.
We conclude the State did not meet its burden of proof and affirm the order of the
trial court denying the State’s application for temporary injunction.
 I. Background

On August 25, 2020, the Harris County Clerk, Chris Hollins, posted a public
message on the verified Twitter account of the “Harris County Clerk,” stating that
the Harris County Clerk’s Office would be mailing every registered voter an
application to vote by mail. Two days later, Keith Ingram, the Director of Elections
for the Secretary of State, sent a letter to Hollins stating that Hollins’s proposed
plan constituted an abuse of voters’ rights under Election Code section 31.005.1
Ingram directed Hollins to “immediately halt any plan to send an application for
ballot by mail to all registered voters.”

Ingram and Hollins spoke by telephone on August 31 wherein Hollins
informed Ingram he declined to conform to Ingram’s request. On that same day,
the State filed an application for temporary restraining order, temporary injunction,
and permanent injunction in the district court seeking to prohibit Hollins from
mailing out vote-by-mail applications to all Harris County registered voters. The
State’s complaint was that Hollins’s proposed plan was an ultra vires act not
connected to his official duties as the Harris County Clerk and that such conduct
would result in irreparable harm to Texas citizens.

On September 9, 2020, the 127th District Court held a hearing on the State’s

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Section 31.005 of the Election Code provides:
(a) The secretary of state may take appropriate actions to protect the voting rights of the
citizens of this state from abuse by the authorities administering the state’s electoral
processes.
(b) If the secretary determines that a person performing official functions in the
administration of any part of the electoral processes is exercising the powers vested in
that person in a manner that impedes the free exercise of a citizen’s voting rights, the
secretary may order the person to correct the offending conduct. If the person fails to
comply, the secretary may seek enforcement of the order by a temporary restraining
order or a writ of injunction or mandamus obtained through the attorney general.
Tex. Elec. Code Ann. § 31.005.

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application in which Ingram and Hollins both testified. During the hearing, the
State argued that Hollins’s proposal was outside the scope of Hollins’s authority as
early voting clerk and would cause confusion among voters, ultimately inducing
some voters to commit felony voter fraud. Ingram testified that by sending the
application to voters who might not qualify to vote by mail, the clerk was “walking
them into a felony.” Ingram explained that section 84.0041 of the Election Code
provides that if a voter knowingly or intentionally submits false information on an
application to vote by mail, that voter is subject to prosecution for a state jail
felony. See Tex. Elec. Code Ann. § 84.0041. The State did not take issue with
Hollins sending the applications to voters aged 65 years or older because, it argued,
there is no chance of confusion with these voters as their age alone (with no other
personal determination by the voter) qualifies them to vote by mail.2 In response,
Hollins emphasized the educational nature of the materials sent with the
applications, specifically, the red-siren graphics accompanying a warning that,
despite receiving the application, not all voters are eligible to vote by mail.
Hollins’s proposed mailer is depicted below:

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Section 82.003 of the Election Code qualifies all registered voters over the age of 65 on
election day to vote by mail. See Tex. Elec. Code Ann. § 82.003.

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 The mailer containing the application states, “DO YOU QUALIFY TO
VOTE BY MAIL?” in large capital letters and bold font, and specifically instructs
the voter to “READ THIS BEFORE APPLYING FOR A MAIL BALLOT.” The
mailer then lists the four categories of voters that are qualified to vote by mail
pursuant to the Election Code. See Tex. Elec. Code Ann. §§ 82.001-82.004. The
mailer explains the disability qualification by citing language from the Texas
Supreme Court’s opinion in In re State, 602 S.W.3d 549 (Tex. 2020). While
Ingram commended Hollins on the informational nature of the mailer, stating,
“I’ve read this full mailer and I think it’s very good,” he disapproved of including
an application in the mailer.

The trial court denied the State’s motion for temporary injunction. This
interlocutory appeal followed.

II. Analysis

A. Applicable Law and Standard of Review

“A temporary injunction’s purpose is to preserve the status quo of the
litigation’s subject matter pending a trial on the merits.” Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 204 (Tex. 2002); Conrad Constr. Co., Ltd. v. Freedman’s
Town Pres. Coal., 491 S.W.3d 12, 15 (Tex. App.—Houston [14th Dist.] 2016, no
pet.). “A temporary injunction is an extraordinary remedy and does not issue as a
matter of right.” Butnaru, 84 S.W.3d at 204. To obtain a temporary injunction, 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 in the interim. Id.; Conrad Constr., 491 S.W.3d at 15. The applicant bears
the burden of production to offer some evidence of each of these elements. Conrad
Constr., 491 S.W.3d at 15.

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 Whether to grant or deny a temporary injunction rests within the trial court’s
sound discretion. Butnaru, 84 S.W.3d at 204; Conrad Constr., 491 S.W.3d at 16.
We should reverse an order on injunctive relief only if the trial court abused that
discretion. Butnaru, 84 S.W.3d at 204.

B. The State failed to meet its burden to prove “probable, imminent, and
irreparable injury.”

In its brief, the State articulates a single issue:

For over a century, the Supreme Court has held that county officials
have only those powers specifically granted or necessarily implied by
the Legislature. Contrary to that well-established law, the trial court
held that because no law forbids election clerks from sending
unsolicited mail-in ballots, they must have authority to do so. The
issue presented is whether this was a misinterpretation of the law and
therefore an abuse of discretion.
The temporary injunction applicant, here the State, bears the burden to offer
some evidence on each element of a temporary injunction. Conrad Constr., 491
S.W.3d at 15. The State alleged the following to show harm: (1) inherent harm to
the State in its sovereign capacity and (2) voter confusion leading to felony voter
fraud. We address these in turn.

1. Harm in the Sovereign Capacity

The State argues that under Yett v. Cook, it need only establish that Hollins’s
plan would be ultra vires to establish an injury. See Yett v. Cook, 281 S.W. 837,
842 (Tex. 1926). Yett merely establishes that the State has standing to assert an
ultra vires claim in a mandamus proceeding, not that an ultra vires action is
harmful by its very nature. See id. at 220-221. The State also cites to Texas
Association of Business v. City of Austin, for the proposition that its alleged ultra
vires claim results in automatic harm to the State. See Tex. Assoc. of Bus. v. City of
Austin, 565 S.W.3d 425, 441 (Tex. App.—Austin 2018, pet, denied). In that case,
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the Austin Court of Appeals found the State would suffer harm if a proposed
municipal ordinance that was directly preempted by a state law was put into effect.
See id. at 441. There was no claim of ultra vires conduct in that case. We are not
persuaded by the State’s argument that ultra vires conduct automatically results in
harm to the sovereign as a matter of law.

2. Voter Confusion

At the preliminary injunction hearing, Ingram testified that, “We don’t allow
or disallow counties to do anything. Counties are the ones that run elections in
Texas, we assist and advise. The limited exception to that is whenever a county
election official is abusing voters by misleading them and walking them into a
felony.” Thus, the State reveals its ultra vires argument is reduced to a single
proposition: that the Harris County Clerk, by sending an informational brochure
with an application to vote by mail, is misleading voters and potentially “walking
them into a felony.”

The thrust of the State’s argument regarding harm resulting from voter
confusion is that voters will be unable to follow the directions on the mailer,
erroneously designate themselves qualified to vote by mail, and thus become
subject to prosecution for felony voter fraud under section 84.0041 of the Election
Code. See Tex. Elec. Code Ann. § 84.0041. The State emphasizes that the
application sent by the Harris County Clerk (as opposed to applications sent by
third-party groups, such as the League of Women Voters) connotes a certain level
of official imprimatur that would lead voters to believe they have been sanctioned
and approved to fill out the application. However, this argument supports the
opposite conclusion. For example, when a voter sees an application sent by the
County Clerk with its official imprimatur, red sirens, and directions regarding
when a voter is and (more importantly) is not qualified to receive a mail-in ballot

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(instructions that are not required to be sent with third-party unsolicited mail-in
ballot applications), it is more likely a voter would know to take this application
seriously, to read all warnings, and to follow all stated precautions.

Further, the testimony at the injunction hearing revealed that the Secretary of
State’s website itself does not define disability, leaving voters without guidance.
Conversely, the mailer includes information that helps voters determine whether
they are disabled under Texas law for the purposes of voting by mail, including
important details about the Texas Supreme Court’s ruling clarifying the
qualifications for a disability that would allow a registered voter to vote by mail.

When the trial court asked Ingram how many Chapter 84 indictments had
been prosecuted in the last 20 years, Ingram responded (on multiple occasions) that
he did not know. Further, when the trial court questioned Ingram about the mens
rea elements of section 84.0041, Ingram confirmed that a voter would need to act
intentionally or with knowledge of his or her fraudulent conduct to be found liable
under that section. A mere accidental misinterpretation of “disability,” for
example, would not subject a voter to liability. When Hollins’s counsel questioned
Ingram how a voter would knowingly and intentionally violate the statue given all
the information on the mailer, Ingram replied:

I don’t know the answer to that question. I mean, for most voters, I
agree this is sufficient, but not for all of them. And if they have the
attitude, well, I’m not really disabled, but nobody is checking so I’m
going to do it then that is exactly what 84.0041 is. And I’ve got the
application in my hand and the Clerk sent it to me.
Ingram’s response informs this court that “most” voters will have enough
information to decide whether to apply to vote by mail, and only a select few, if
any, will knowingly choose to break the law and falsify their application. A voter
who intends to engage in fraud may just as easily do so with an application

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received from a third-party as it would with an application received from the Harris
County Clerk. Mr. Ingram testified at the hearing that, “definitely some mailers
have that kind of language [regarding qualifications to vote by mail] on them but
not all of them -- not very many of them.” As discussed above, a voter would be
less likely to engage in fraud using the application sent by the County Clerk
because it has an official imprimatur, contains extensive explanations for what
qualifies a voter to receive a mail ballot under the law, and is accompanied by text
and red-siren graphics traditionally associated with danger and caution in general.

The State failed to meet its burden of showing that mailing the applications
will result in irreparable injury. The injury alleged by the State is at best
speculative. The State’s argument is based on mere conjecture; there is, in this
record, no proof that voters will intentionally violate the Election Code and no
proof that voters will fail to understand the mailer and intentionally commit a
felony, or be aided by the election official in doing so. Ingram’s conclusory
testimony at the temporary injunction hearing cannot carry the burden the State
was required to prove to show actual harm. Conclusory testimony does not raise a
genuine issue of material fact. Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013)
(“A conclusory statement of an expert witness is insufficient to create a question of
fact to defeat summary judgment.”) (internal quotations and citation omitted);
Davis v. Knott, No. 14-17-00257-CV, 2019 WL 438788, at *9 (Tex. App.—
Houston [14th Dist.] Feb. 5, 2019, pet. denied) (“A conclusory statement is one
that expresses a factual inference without providing underlying facts in support of
the conclusion.”) (citing Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249
S.W.3d 380, 389 n.32 (Tex. 2008) and Dolcefino v. Randolph, 19 S.W.3d 906, 930
& n.21 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding affidavit’s
statement that “this was false and defamatory and has injured me in my profession”

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was conclusory)).

An injunction is not proper when the claimed injury is merely speculative;
fear and apprehension of injury are not sufficient to support a temporary
injunction. Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 861 (Tex. App.—
Fort Worth 2003, no pet.). Accordingly, the trial court properly denied the State’s
application for temporary injunction.

Further, the temporary injunction applicant bears the burden of producing
some evidence on each element of a temporary injunction. Conrad Constr., 491
S.W.3d at 15. Because the State fails to produce evidence of irreparable injury, we
need not address the State’s arguments regarding cause of action or probable
success on the merits. See id.

We overrule the State’s sole issue.

C. Judicial Non-Intervention

“The rule is well established in Texas that the equitable powers of the courts
may not be invoked to interfere with public officials in taking any of the steps
involved in an election.” Ellis v. Vanderslice, 486 S.W.2d 155, 159 (Tex. Civ.
App.—Dallas 1972, no writ) (citing City of Dallas v. Dallas Consol. Elec. St. Ry.
Co., 105 Tex. 337, 341–42, 148 S.W. 292, 294 (1912); Leslie v. Griffin, 25 S.W.2d
820, 821 (Tex. Comm’n App. 1930); and Winder v. King, 1 S.W.2d 587, 589 (Tex.
Comm’n App. 1928). “The question is not simply whether a statutory contest is an
adequate remedy for irregularities in the process. The question is rather whether
the entire election process is immune from judicial interference until the result is
declared. The above authorities establish that it is.” Id. at 160.

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 III. Conclusion

Because we conclude the State failed to meet its burden in the temporary
injunction hearing, we hold the trial court did not abuse its discretion in denying
the State’s application for a temporary injunction. Accordingly, the order of the
trial court is affirmed.

PER CURIAM

Panel consists of Justices Spain, Hassan, and Poissant.

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