5/18/2015 6:46:54 PM

Chris Daniel - District Clerk Harris County

Envelope No. 5331342
By: Carla Carrillo
Filed: 5/18/2015 6:46:54 PM

CAUSE NO. 2014-44974

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HARRIS COUNTY, TEXAS

152ND JUDICIAL DISTRICT

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ANNISE D. PARKER, MAYOR;

ANNA RUSSELL, CITY
SECRETARY; AND
CITY OF HOUSTON,
Defendants.

IN THE DISTRICT COURT

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VS.

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JARED WOODFILL,
STEVEN F. HOTZE, MD
F.N. WILLIAMS, SR. and
MAX MILLER,
Plaintiffs,

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Motion for New Trial

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TO THE HONORABLE JUDGE OF THIS COURT:

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Plaintiffs, Jared Woodfill, F.N. Williams, Sr., and Max Miller, hereby

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As the Court is aware, a Final Judgment was entered in favor of

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file Plaintiffs Motion for New Trial and will show as follows:

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the Defendants on April 17, 2015. The purpose of this Motion for New
Trial is two-fold. First, it is important to extend this Courts plenary power
for as long as possible in the event that the Texas Supreme Court grants
mandamus relief which is presently pending, fully briefed and ripe. In that
Original Proceeding, Plaintiffs as Relators have asked the Supreme Court
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to order the City Secretary to conduct a proper count of all signers of the
Referendum Petition and to identify whether each particular signer, buy
name and by page number, is or is not a validly-registered voter as of the

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date of their signature. Should this occur, then Plaintiffs will ask this Trial
Court to consider the impact of that count on whether the minimum

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threshold has been met. So it is important that this Court not be divested

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of jurisdiction prior to that occurrence. Second, because certain appellate

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points must be raised in a motion for new trial in order to preserve those

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Two of the Plaintiffs herein timely filed a Notice of Appeal on

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complaints upon appeal, Plaintiffs make those challenges herein.

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April 30, 2015, and that appeal is currently pending in the 14th Court of

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Appeals. In addition, the Texas Supreme Court ordered full briefing on the

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merits on a previously-filed Original Proceeding. On May 13, 2015, all

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three Plaintiffs (and prior Plaintiff Hotze) as Relators filed their Reply Brief

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and also filed an Emergency Motion asking the Supreme Court to order
Defendant Russell to count and identify each signer of the Referendum
Petition who is a registered voter. Both the Mandamus Proceeding and the
Emergency Motion remain pending.

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As this Court knows, Plaintiffs have repeatedly requested that

Secretary Russell be required to perform this work, but she has never done
so. Instead, only the advocates for the City and the Mayor have performed

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only a partial and intentionally flawed reviewlimiting their tally only to

registered voters who appear on those pages which this Court has ordered

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to be included within the count. In addition, the Defendants refused to

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specify by name which of the signers were in fact validated as registered

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voters on a particular page. Further, the Defendants did not analyze the

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registration status of any signers as of the date of signature, but, instead,

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reviewed the registration status of a particular signer during the month of

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April of 2015. Because over a thousand signers have moved since they

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signed the Referendum Petition, this intentionally flawed review resulted

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in a severe undercount of validly-registered voters. Finally, the Defendants

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refused to share any tallies involving signers on any of the pages which

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had been disqualified by the Court. These are not new issues raised for the
very first time in this Motion for New Trial.

In addition to seeking

mandamus relief from this Court, which was denied, Plaintiffs filed a
written objection and a motion to require the City Secretary to recount all
of the signatures on the Referendum Petition.
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The Court refused this

requested relief. A true and correct copy of that previously-filed objection

and motion is attached hereto as Exhibit 1, and is fully incorporated herein
by this reference. Accordingly, the Plaintiffs request the Court to grant a

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new trial and allow for a count by the City Secretary as she was and is
required to perform under the Houston City Charter.

Should the Court not be inclined to grant this relief, then

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Plaintiffs ask the Court to not deny this Motion, but to instead simply not

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rule one way or the other. This will allow the Courts plenary power to be

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extended as long as possible, which may become very important should

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In addition, Plaintiffs seek entry of a new trial based on the

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the Texas Supreme Court grant mandamus relief.

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following: (1) evidence that must be heard such as one of jury misconduct

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or newly discovered evidence or failure to set aside a judgment by default;

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(2) a complaint of factual insufficiency of the evidence to support a jury

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finding; and (3) a complaint that a jury finding is against the overwhelming
weight of the evidence.

As for (1), the evidence which should be

considered by this Court is the fact that the Defendants have intentionally
refused to count and identify the registration status of each and every
signer of the Referendum Petition as of the date of signature. All of the
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undisputed evidence already proves this is true, as demonstrated, for

example, by the transcript of the hearing before the Court which is attached
hereto as Exhibit 2. But the Court may wish to delve deeper into this issue,

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and, in the event wants to uncover further evidence, such as asking

Defendant Russell under oath what she and her office have done in the

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past and did or not did on the most recent count, then such issue must be

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raised by a motion for new trial. As for (2) and (3), Plaintiffs assert that

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certain failures to find and/or affirmative findings in response to certain

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sub-findings to Jury Questions 1, 4, 5 and 6 are either legally and factually

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insufficient and/or against the overwhelming weight of the evidence.

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More specifically, the Jurys failure to find Yes instead of No and/or

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their affirmative finding of No in response to Question 1, subparts 1-2, 4,

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7, 9-28, 30-31, 36, 38-41, 48-52, 57, 66-75, 8091, 94-98, is not supported by

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legally or factually evidence, and is against the overwhelming weight of

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the evidence.

For example, each of these Circulators signed the

Referendum Petition as a Circulator as a matter of law, because each of

them put their own mark in their own handwriting. Further, each of these
Circulators subscribed their own name beneath at the end of the
instrument as a matter of law, as demonstrated by the words of the Notary
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Public, who signed and affixed their official seal to the Circulator Affidavit
with the words Sworn to and subscribed before me. Furthermore,

Circulator more than once on a particular page.

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there is no legal or factual basis for requiring a Circulator to sign as a

The affirmative Yes findings in response to Jury Question

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subparts 4.1 and 4.3-4.13 are likewise legally and factually insufficient

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and/or against the overwhelming weight of the evidence as well. More

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specifically, there is no finding by the Jury as to which particular pages of

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the Referendum Petition include forgery, and there is no evidence in this

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record that forgery occurred. The only evidence of so-called forgery

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came from a handwriting expert, Janet Masson. But the evidence was

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limited to her review of the handwriting of particular signers of the

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Referendum Petition by voters. She specifically conceded that she did not

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analyze whether a Circulator himself or herself forged any of the

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signatures of registered voters at the top of the pages of the Referendum

Petition.

Moreover, the forgery concept pushed by the Defendants

derives its source from the In Re Francis case. However that case has
nothing to do with a Referendum Petition, as previously briefed by the
Plaintiffs. In support of their argument, the Defendants cite the Texas
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Supreme Courts decision in In re Francis, 186 S.W. 3d 534 (Tex. 2006). In

that case, the High Court invalidated an entire page of voter signatures
because statutorily required information was lacking.

But this is like

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comparing apples to oranges. The Francis case deals with a statewide

judicial candidates attempt to submit qualifying petition signatures in

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order to get on the primary ballot. In particular, Section 141 of the Texas

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Election Code governs that process, and Section 141.063 specifically

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conditions the validity of petition signatures on whether the required

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Circulator affidavit of Section 141.065 has been used. That is why the High

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Court made the point that the omission of any statutorily required info

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(e.g., a proper affidavit) would render signatures on that petition invalid.

Nowhere does Section 277 contain similar language that the

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case.

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Unlike Section 141, Section 277 is the Code section which applies in this

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Circulator affidavit has to be in conformity with any particular

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requirements or else otherwise valid voter signatures will be invalidated.

Nor does the Houston City Charter say this either. Thus, there is no law
which supports the idea that these Jury findings bear the consequence of
invalidating all of that Circulators work.

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The Jurys affirmative Yes findings in response to Jury

Question subparts 5.2-5.4, 5.8, 5.12 and 5.15 are likewise legally and
factually insufficient and/or against the overwhelming weight of the

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evidence as well. More specifically, there is no finding by the Jury as to

which particular pages of the Referendum Petition include non-accidental

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defects, and there is no evidence in this record that non-accidental defects

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actually occurred. The only evidence of so-called non-accidental defects

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came from a handwriting expert, Janet Masson. But the evidence was

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limited to her review of the handwriting of particular signers of the

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Referendum Petition by voters. She specifically conceded that she did not

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analyze whether a Circulator himself or herself committed a non-

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accidental defect regarding any of the signatures of registered voters at

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the top of the pages of the Referendum Petition. Moreover, the non-

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accidental defect concept pushed by the Defendants derives its source

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from the In Re Francis case. However that case has nothing to do with a
Referendum Petition, as previously briefed by the Plaintiffs, and as
mentioned above.
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The Jurys affirmative No findings and/or failure to find

Yes in response to Jury Question subparts 6.1 and 6.3-6.13 are likewise
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legally and factually insufficient and/or against the overwhelming weight

of the evidence as well. More specifically, there is no finding by the Jury as
to which particular pages of the Referendum Petition include Circulator

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Oaths that are not true and correct, and there is no evidence in this record
that untrue and incorrect oaths actually occurred. The only evidence of so-

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called non-accidental defects came from a handwriting expert, Janet

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Masson. But the evidence was limited to her review of the handwriting of

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particular signers of the Referendum Petition by voters. She specifically

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conceded that she did not analyze whether a Circulator himself or herself

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was aware that untrue and incorrect information was present regarding

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any of the signatures of registered voters at the top of the pages of the

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Referendum Petition. Moreover, the true and correct concept pushed by

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the Defendants derives its source from the In Re Francis case. However that

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case has nothing to do with a Referendum Petition, as previously briefed

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by the Plaintiffs, and as mentioned above.

Conclusion

For the reasons detailed above, Plaintiffs respectfully request that this
Court enter an order granting a New Trial, as well as all other and further
relief to which Plaintiffs may show itself to be justly entitled.
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Respectfully Submitted,
ANDY TAYLOR & ASSOCIATES, P.C.

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BY: /s/ Andy Taylor

Andy Taylor
State Bar No. 19727600
Amanda Peterson
State Bar No. 24032953
2668 Highway 36S, #288
Brenham, Texas 77833
713-222-1817 (telephone)
713-222-1855 (facsimile)

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ATTORNEYS FOR JARED WOODFILL,

F.N. WILLIAMS, SR. AND MAX
MILLER

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CERTIFICATE OF SERVICE

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I hereby certify that a true and correct copy of the attached document
was served via email on the 18th day of May, 2015 to the following
attorneys.

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Geoffrey L. Harrison
gharrison@susmangodfrey.com
State Bar No. 00785947
Alex Kaplan
akaplan@susmangodfrey.com
State Bar No. 24046185
Kristen Schlemmer
kschlemmer@susmangodfrey.com
State Bar No. 24075029
SUSMAN GODFREY L.L.P.
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366
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Facsimile: (713) 654-6666

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HAYNES AND BOONE, LLP

Lynne Liberato
State Bar No. 00000075
Kent Rutter
State Bar No. 00797364
William Feldman
State Bar No. 24081715
Katie Dolan-Galaviz
State Bar No. 24069620
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Facsimile: (713) 547-2600
Lynne.Liberato@haynesboone.co
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Kent.Rutter@haynesboone.com
william.feldman@haynesboone.c
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katie.dolangalaviz@haynesboone.com
Appellate Attorneys for All
Defendants

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CITY OF HOUSTON LEGAL DEPARTMENT

Donna Edmundson
State Bar No. 06432100
Lynette Fons
State Bar No. 13268100
Judith L. Ramsey
State Bar No. 16519550
900 Bagby, 4th Floor
Houston, Texas 77002
Telephone: (832) 393-6412
Facsimile: (832) 393-6259
David.Feldman@houstontx.gov
Lynette.Fons@houstontx.gov
Judith.Ramsey@houstontx.gov
Attorneys for Annise D. Parker, Mayor

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FULBRIGHT & JAWORSKI LLP

Edward B. Teddy Adams, Jr.
State Bar No. 00790200
Andrew Price
State Bar No. 24002791
Seth Isgur
State Bar No. 24054498
Geraldine W. Young
State Bar No. 24084134
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
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Telephone: (713) 651-5151

Facsimile: (713) 651-5246
Teddy.Adams@nortonrosefulbright.co
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Andrew.Price@nortonrosefulbright.com
Seth.Isgur@nortonrosefulbright.com
Geraldine.Young@nortonrosefulbright.c
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Attorneys for Anna Russell, City
Secretary

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/s/ Andy Taylor________

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