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NO.

____________
CRUZ QUINTANA, JR. and GEORGE
RICE, Plaintiffs,
v.
COUNTY OF HIDALGO, TEXAS;
RAMON GARCIA, in his official
capacity; and COMMISSIONERS A.C.
CUELLAR; EDDIE CANTU; JOE M.
FLORES AND JOSEPH PALACIOS, in
their official capacities,
Defendants.

IN THE ______ DISTRICT COURT


OF
HIDALGO COUNTY, TEXAS

PLAINTIFFS ORIGINAL PETITION AND APPLICATION FOR TEMPORARY


RESTRAINING ORDER AND TEMPORARY AND PERMANENT INJUNCTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW plaintiffs CRUZ QUINTANA, JR. and GEORGE RICE, complaining of
and about defendants the COUNTY OF HIDALGO, TEXAS, and the County Judge and County
Commissioners in their official capacities, and for such cause of action would respectfully show
the Court the following:
Introduction
1.

August 9, 2016, when Hidalgo County Commissioners Court called for a second special

election on the creation of a Healthcare District tax, they also approved two lists of polling
places for the November elections composed exclusively of public buildings, where voting is
expected. One list is for Election Day locations, and another shows twenty-nine Early Voting
substations where any county voter can vote during the entire two weeks of Early Voting.

It

was not until five weeks later, in late September, that the public learned that the County would
also be loading up voting machines for a grand tour of Hidalgo County hospitals and other
institutions tied to the supporters of the Border Health PAC, an inaptly-named political
1

committee well-known to be supported by doctors and other politically connected interests that
has been spending large sums of money promoting the new tax.
2.

The political background of this case is obvious. However, this court need not wade into

politics to decide this case. The plain text of Texas law is obvious and prohibits Hidalgo
Countys cynical attempt to manipulate the results of Proposition One.
Discovery Control Plan
3.

Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, plaintiff intends to conduct

discovery in this case under Level 3.


Parties
4.

Plaintiff Cruz Quintana, Jr. is an individual residing at 207 Santa Fe St., San Juan, TX

78589, and a taxpayer and registered voter of said county. The last three numbers of Plaintiffs
drivers license number are 502. The last three numbers of Contestants social security number
are 652. Plaintiff is subject to Hidalgo County property taxes. Plaintiff has also been an active
opponent of the proposed Hidalgo County Healthcare District. Additionally, Plaintiff voted
against the creation of the district the first time it was on the ballot and rejected, in 2014.
(Exhibit A Quintana declaration).
5.

Plaintiff George A. Rice is an individual residing at 8443 N. 25th Lane, McAllen,

Hidalgo County, TX 78504, and a taxpayer and registered voter of said county. The last three
numbers of Plaintiffs drivers license number are ___. The last three numbers of Contestants
social security number are 309. Plaintiff is subject to Hidalgo County property taxes. Plaintiff
has also been an active opponent of the proposed Hidalgo County Healthcare District.
Additionally, Plaintiff voted against the creation of the district the first time it was on the ballot
and rejected, in 2014. (Exhibit B Rice declaration).

6.

Defendant County of Hidalgo is a governmental entity with a main office at 100 E. Cano,

Edinburg, Hidalgo County, Texas 78539.


7.

Defendant Ramon Garcia is the County Judge. He is sued in his official capacity. He

may be served at his official office or wherever he may be found.


8.

Defendant A.C. Cuellar, Jr. is the Commissioner for Precinct 1. He is sued in his official

capacity. He may be served at his official office or wherever he may be found.


9.

Defendant Eddie Cantu is the Commissioner for Precinct 2. He is sued in his official

capacity. He may be served at his official office or wherever he may be found.


10.

Defendant Joe M. Flores is the Commissioner for Precinct 3. He is sued in his official

capacity. He may be served at his official office or wherever he may be found.


11.

Defendant Joseph Palacios is the Commissioner for Precinct 4. He is sued in his official

capacity. He may be served at his official office or wherever he may be found.


Jurisdiction and Venue
12.

This suit is for declaratory and injunctive relief within the jurisdiction of this Court.

Contestant brings this action pursuant to the Texas Uniform Declaratory Judgment Act, Texas
Election Code 273.081, Tex. Civ. Prac. & Rem. Code 65.001 et seq., and Texas Rule of Civil
Procedure 680.
13.

Hidalgo County is the proper venue for this petition because Defendants are Hidalgo

County residents and the actions of which Plaintiffs complain occurred and are occurring in
Hidalgo County. Tex. Civ. Prac. & Rem. Code 15.002.
Statement of Facts
Background
14.

On August 12, 2014, Hidalgo County Commissioners Court approved an order for a

special election on a countywide Hospital District under chapter 1122 of the Texas Special
3

District Local Laws Code (Special Districts Code). Pursuant to such order, the election was
held contemporaneously with the November 4, 2014 general election.
15.

Hidalgo County voters rejected the creation of the Hospital District in that election, with

52% voting against and 48% in favor. In terms of total votes, 34,304 were cast in favor and
36,817 against, for a margin of 2,513 votes out of 71,121 cast.
16.

After the defeat of the Healthcare District in 2014, the enabling legislation was amended.

See 2015 Tex. Sess. Law Serv. Ch. 382 (H.B. 1596) (Vernons).
17.

The enabling legislation sets forth certain specific requirements for the creation of the

district and requiring certain standard items to be included in the order calling an election. Tex.
Spec. Dist. 1122.021. (The items required to be in the order of election were not amended;
they are standard items required in such election orders, as illustrated further below.)
18.

Polling place identification. Particularly relevant here, the statute specifically requires

that:
(c) The order calling an election under this section must state:
(1) the nature of the election, including the proposition that is to appear
on the ballot;
(2) the date of the election;
(3) the hours during which the polls will be open; and
(4) the location of the polling places.
Tex. Spec. Dist. 1122.021 (emphasis added).
19.

Publication requirement. The statute further requires that


The Hidalgo County Commissioners Court shall give notice of an election under
this section by publishing a substantial copy of the election order in a newspaper
with general circulation in Hidalgo County once a week for two consecutive
weeks. The first publication must appear not later than the 30th day before the
date set for the election.

Id.

20.

In an August 9, 2016 special meeting, Commissioners Court voted to accept a second

petition filed pursuant to chapter 1122 of the Special Districts Code. The Court approved an
order for another special election on a countywide Healthcare District. (Exhibit C Aug. 9,
2016 Order of Election) (hereinafter Election Order). 1 The Election Order calls for the
election to be held contemporaneously with the November 8, 2016 general election.
21.

The Election Order states as follows with regard to polling places:


2. County Election Precincts and Polling Places
Voting in the election shall be conducted within and throughout Hidalgo County
at those election day polling places designated by the Hidalgo County
Commissioners Court for the November 8, 2016 Election, such sites listed in
Attachment A attached hereto and incorporated herein at this point for all
purposes.

22.

There was no Attachment A as referenced in the Election Order.

23.

However, the Commissioners Court did, at the same meeting on August 9, 2016, vote to

approve the Election Day Poll Locations and Early Voting Substation Locations (both attached
as Exhibit D). 2

These polling locations are exclusively public buildings, such as school

buildings, city halls, and fire stations. The Early Voting Substation list includes twenty-nine
polling places, all open from 7:00 am to 7:00 pm during the entire Early Voting period (Oct. 24
Nov. 4).
24.

These polling locations were not actually attached as Attachment A as stated in the

Election Order, but they were at least attached to the public agenda for the August 9
Commissioners Court meeting, so the Commissioners and the public were aware of these lists
prior to the Courts vote to approve the Election Order and these particular polling sites, all of
which included public buildings.

All exhibits referenced in this petition are incorporated fully herein.

The relevant parts of the minutes of the August 9, 2016 meeting are attached as Exhibit E.

September Surprise
25.

However, more than five weeks later, Commissioners Court voted to approve an entirely

separate Early Voting Mobile Schedule (the Mobile List). (Exhibit F.) This Mobile List is
comprised of schedules for three separate mobile voting units to be stationed at various
additional locations in Hidalgo County for portions of the early voting period.
26.

While the polling locations approved with the Election Order are exclusively public

buildings, the Mobile List is heavy with private healthcare and other institutions.
27.

The Mobile List includes the following healthcare institutions as polling sites:

28.

TLC Pharmacy & Medical Equipment, 1242 E. Business Hwy. 83, Mission
Doctors Hospital at Renaissance, 5501 S. McColl Rd., Edinburg (two full days 7 am
to 7 pm)
Rio Grande Regional Hospital, 101 E. Ridge Rd., McAllen
McAllen Medical Center Hospital, 301 W. Expressway 83, McAllen
Edinburg Regional/Childrens Hospital, 1102 W. Trenton Rd., Edinburg
South Texas Behavioral Health, 2102 W. Trenton Rd., Edinburg
Cornerstone Regional Hospital, 2302 Cornerstone Blvd., Edinburg
McAllen Heart Hospital, 1900 S. D St., McAllen
Womens Hospital at Renaissance, 5502 S. McColl Rd., Edinburg
Knapp Medical Center Hospital, 1401 E 8th St., Weslaco
Mission Regional Hospital, 900 S. Bryan, Mission

Among the hospitals, note that Renaissance institutions are heavily represented,

occupying three full days from 7 am to 7 pm. By contrast, no other institution on the Mobile List
is slated to host a mobile unit more than two days.
29.

The Mobile List also includes two locations associated with Lone Star National Bank

(118 S. Cage Blvd. in Pharr and corporate office at 520 E. Nolana Ave. in McAllen).
30.

The Mobile List also identifies two locations associated with IDEA Public Schools,

which despite the name is actually a nongovernmental nonprofit that operates charter schools.
Voting is scheduled not only for an IDEA campus (IDEA McAllen Academy at 201 N. Bentsen
Rd.), but also at IDEAs regional headquarters (505 Angelita Dr., Weslaco). While there are a
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handful of other school buildings included on the Mobile List, none of them are represented
more than once.
31.

Seeming out of place at first glance, two media entities are playing host to mobile voting

units, Entravision (801 N. Jackson) and Telemundo (200 S. 10th St.).


32.

While this list may seem odd to an outsider, the connections scream out to anyone with

knowledge of Hidalgo County politics. These institutions are all affiliated with the Border
Health PAC (see Exhibit G), a political committee registered with the Texas Ethics Commission
that is well known for supporting the Hidalgo healthcare district, which would impose a tax on
county residents to pay largely to hospitals. As of the latest report filed October 5, 2016, the
Border Health PAC maintained more than $1,000,000 on hand. 3
33.

Alonzo Cantu, political activist and well-known supporter of the proposed Hidalgo

County Healthcare District, is on the Border Health PAC board of directors. See id.
34.

It is well-known that Cantu was an initial investor in Doctors Hospital at Renaissance

(DHR) and constructed the building, and remains Chairman of the Finance Committee. (Exhibit
H.) Revealingly, The Monitor has referred to the Border Health PAC as Doctors Hospital at
Renaissances political action committee. 4 Cantu is also Chairman of Lone Star National Bank 5
and on the board of IDEA Public Schools. (Exhibit I). In 2007, the Washington Post reported
on Cantus bundling for Hillary Clinton, and Cantu reportedly admitted that his bundling and the
Border Health PAC were initiated to stop federal legislation that would have regulated the

Tex. Ethics Comn, Border Health


http://204.65.203.5/public/100645251.pdf.

PAC

monthly

report

filed

Oct.

5,

2016,

available

at

The Monitor, Border Health PAC biggest single donor to Lt. Gov. Patrick (Jul. 16, 2015), available at
http://www.themonitor.com/news/local/border-health-pac-biggest-single-donor-to-lt-gov-patrick/article_a138ffee2c1f-11e5-8751-63b1602707d2.html.
5

Notably, S. David Deanda, Jr., President of Lone Star, is also on the Board of Managers at DHR.

hospitals ownership structure.

(Exhibit J, How Big Man in McAllen Bundles Big for

Clinton).
35.

Now the Border Health PAC, run or at least greatly influenced by Cantu, is the biggest

mouthpiece in favor of setting up a new healthcare tax, a large portion of the proceeds of which
would go to hospitals such as Cantus DHR.
36.

Understanding those connections, the other odd pieces in the Mobile List also make

sense. Entravision, hosting polling on 10/29 from 8 am to 5 pm, is affiliated with Larry Safir,
who served as executive vice president for 16 years. (Exhibit K). Mr. Safir is also presently on
the DHR board of managers. Telemundo, hosing polling on 10/29 from 8 am to 5 pm, was
formerly headed by president Sam F. Vale. Mr. Vale is apparently closely connected with
Alonzo Cantu, and even discussed Cantus proficiency at political organizing in the Washington
Post article noted above. (Exhibit J).
Hidalgo Countys late Mobile List violates election order requirements
37.

Individuals in the United States have fundamental rights of speech and association under

the First Amendment, including the right to make political contributions and set up political
committees. At the same time, Texas statutes serve to protect against the manipulation of polling
locations to benefit one side in an election. They do this, in part, through notice requirements.
38.

The statute enabling the Healthcare District election specifically states that the order for

the election must statethe location of the polling places. Tex. Spec. Dist. 1122.021.
39.

The Election Order does not satisfy this requirement. The Election Order says that

polling shall be conducted at those election day polling places designated by the Hidalgo
County Commissioners Court for the November 8, 2016 Election, such sites listed in
Attachment A attached hereto and incorporated herein at this point for all purposes. (Exhibit

A) (emphasis added). This language clearly refers to the list of Election Day and Early Voting
Substation Locations that were approved on the same date by the Commissioners Court.
40.

This language cannot possibly refer to the Mobile List, as the Mobile List was not before

the Court that day. It therefore was not posted to the public agenda as required under the Open
Meetings Act, as would be necessary if it were to be a part of the August 9 Election Order. The
public had no notice of the Mobile List on August 9, when the Election Order was considered,
and therefore had no opportunity to see or comment on what would later be revealed as the
mobile unit locations. The Mobile List was not discussed, mentioned, or alluded to on August 9,
2016. The Mobile List was not considered or approved until five weeks later, September 20,
2016.
41.

In other words, opponents of the Healthcare District tax had no notice until five weeks

after the Election Order was considered and approved that the polling places on the measure in
November 2016 would actually be heavily weighted with hospitals, medical institutions, and
other interests related to or influenced by Alonzo Cantu, the Border Health PAC, and doctors
interests.
42.

The Healthcare District measure is a special election. See Election Order p. 2 (The

Special Election on the creation of a countywide Healthcare District shall be held on Tuesday,
November 8, 2016[.]).
43.

By contrast with other elections, the required notice of a special election constitutes a

condition upon which authority is granted to hold the election, andthere must be a substantial
compliance with the law.

It has often been held that failure to give the required notice

invalidates the special election. Turner v. Lewie, 201 S.W.2d 86, 8889 (Tex. Civ. App. 1947),
writ dismd (emphasis added). See also Greater Beauxart Garden Mun. Util. Dist. v. Cormier,
596 S.W.2d 597, 601 (Tex. Civ. App. 1980).
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44.

The Turner court explained why formal compliance with the notice requirements is

required for a valid special election, and publicity over the issue will not excuse a complete
failure of statutory notice:
The proceedings of the election, and those leading up to it, must themselves give
sufficient notice regarding the election and its purposes. It is not enough that some
or even all of the voters learned of the election through reading news items, or by
conversations with other citizens, or by hearing of it through any means other than
the notices required to be given by the statutes regulating the election. If there is
not a substantial compliance with the law in the proceedings leading up to the
election, there is no valid election. The will of the majority of the voters might be
expressed in any number of ways, as in a mass meeting, or by petition, and yet not
amount to an election. Our system of government depends for its existence on
orderly elections, held strictly in accordance with the law, and surrounded by all
of the safeguards which the lawmakers have seen fit to impose. It is important that
the voters receive legal notice of the election and the purposes for which it is to be
held.
Turner, 201 S.W.2d at 89 (emphasis added).
45.

Thus, courts have held that, regarding a special election such as the Healthcare District

election, the election will be invalid if the government failed to substantially comply with the
statutory requirements. Chumney v. Craig, 805 S.W.2d 864, 869 (Tex. App.Waco 1991, writ
denied) (finding substantial compliance by noting that, while publication of the election order in
the newspaper was a few days late, it included the specific locations of the voting boxes). 6
46.

The Election Order here is not in substantial compliance with the statutory requirement

because it did not include or otherwise identify the polling places to be used in the election;
namely, the very odd and obviously strategically-chosen Mobile List weighted toward Border
Health PAC-affiliated institutions.

Chumney implies that the official election order at issue there did specify all of the voting boxes, unlike the
Election Order approved by Hidalgo County Commissioners Court. See 805 S.W.2d at 869 (The only matters in
the election order not covered in the March 29 issuewere the exact wording of the proposition and the specific
location of the voting boxes, information which appeared in the official notice in the April 5 issue.).

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47.

Commissioners Court directed local legislative representatives to push a bill through the

Legislature making certain changes to the enabling legislation intended to improve chances of
passing Proposition One. The statute, both before and after the amendments, contains standard
notice provisions required in orders calling special elections. Hidalgo County cannot effectively
sponsor legislation enabling it to impose a new taxing regime and then wholly ignore the
requirements in the very statute the County asked for.
Hidalgo Countys failure to publish the Election Order violates required notice provisions
48.

Aside from the failure to properly and timely identify all polling locations in the Election

Order itself, Hidalgo County also failed completely to publish the required notice of the election
in the newspaper.
49.

The enabling legislation mandates that Hidalgo County shall give notice of an election

under this section by publishing a substantial copy of the election order in a newspaper with
general circulation in Hidalgo County once a week for two consecutive weeks. The first
publication must appear not later than the 30th day before the date set for the election. Tex.
Spec. Dist. 1122.021.
50.

Today is 21 days out from Election Day, and there has been no legal publication of the

election order in any form, much less the two publications required under the statute.
51.

A review of the Commissioners Courts agendas since August 9 reveals plenty of

opportunities to direct the required publications. In fact, the Healthcare District was on the
Courts agenda eight times from August 16 through October 4, but never did the Commissioners
see fit to discuss publication required by the law. 7

The Health Care Funding District was on the Commissioners Court agenda August 16, 23 and 30; September 6, 13,
20 and 27; and October 4.

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52.

Perhaps the Commissioners were reluctant to publish legal notice to the public of the

election order because they realized how absurd it would look to present the notice of yet another
Healthcare District election that includes a list of all polling places, heavily tilted toward
hospitals and other Border Health PAC-affiliated institutions.
53.

Regardless of the rationale, as indicated above, this failure also reflects that the County is

not in substantial compliance with the statutory requirements. See, e.g., Turner, 201 S.W.2d at
88-89.
Hidalgo County Commissioners lack a rational reason to support the Mobile List polling
places
54.

Aside from lack of notice, the Mobile List is substantively invalid because it is irrational

and/or an abuse of discretion. See Rodriguez v. Vera, 249 S.W.2d 689 (Tex. Civ. App. 1952)
(rejecting commissioners courts designation of polling place as arbitrary).
55.

There is no rational reason that, if the County is to have mobile units, they should travel

to hospitals and other Border Health PAC-related institutions rather than standard public
buildings that abound in Hidalgo County. The Mobile List is not even geographically dispersed.
The Mobile List, therefore, does not serve any legitimate governmental interest in providing
access to the ballot box. It is an obvious attempt to manipulate the election results by taking the
ballot boxes right to the institutions where Border Health PAC sponsors have influence over their
employees.
56.

Even worse, it is already apparent that DHR, the most-represented hospital institution on

the Mobile List, is engaging in partisan politicking in favor of Proposition One, and candidates
who support Proposition One, right on the very campus that is slated to host ballot boxes.
57.

This past Saturday, October 15, 2016, DHR hosted a veterans event at Edinburg

Conference Center at Renaissance, a facility located on DHRs campus and which is controlled
12

by DHR. Hilda Garza DeShazo, a current candidate for State Representative HD 41 against
incumbent Bobby Guerra, was invited by a veteran to attend the event. Ms. DeShazo finished
block walking that morning and intended to stop by to talk to veterans. She had heard that
Bobby Guerra had been there previously. She exited her vehicle while wearing her campaign
shirt. Two security guards aggressively approached her, while she was still far from the entrance
and before she even stepped on the sidewalk, and told her she could not come in. DeShazo was
confused because she had thought it was a public event and she knew that Bobby Guerra had
been there already. The two guards told her he had, but that he had not been displaying
campaign materials. (Exhibit L DeShazo declaration).
58.

Later, DeShazo found out that Guerra had in fact been wearing campaign logos on his

clothes. Id. Rogelio Aleman, the veteran who invited DeShazo to the event, had been there and
witnessed Guerra and a campaign assistant both clearly wearing campaign apparel.
Application for temporary restraining order and temporary and permanent injunction
59.

Plaintiffs reallege and incorporate by reference all of the allegations contained in all of

the preceding paragraphs.


60.

For all reasons stated above, Plaintiffs have established likelihood of success on the

merits. Defendants have not substantially complied with the relevant statutes by failing to
include all polling places in the Election Order and by wholly failing to publish the legal notice
of the special election in the newspaper of general circulation. Additionally, the Mobile List is
substantively invalid because it is arbitrary and unrelated to any legitimate governmental interest.
61.

Hidalgo Countys actions will have an irreparable effect on Plaintiffs interests in this

election unless immediately restrained. See Blum v. Lanier, 997 S.W.2d 259, 263 (Tex. 1999)
(granting injunction where time remained to correct ballot deficiencies without delaying
election).
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62.

Plaintiffs are not seeking to enjoin the election, but only to prevent the County from

implementing an illegal and improperly-noticed Mobile List of polling places that violate the
express provisions of state statutes. Injunctions that delay an election would be improper, but
injunctions that facilitate the elective process can be appropriate. The Texas Supreme Court has
held that if the matter is one that can be judicially resolved in time to correct
deficiencieswithout delaying the election, then injunctive relief may provide a remedy that
cannot be adequately obtained through an election contest. Id. at 263-64.
63.

Money damages cannot adequately compensate these injuries and, absent injunctive

relief, the injuries will be irreparable. Accordingly, appropriate injunctive relief is necessary.
64.

Hidalgo County voters have twenty-nine full-time Early Voting substations at which they

may vote during the entire Early Voting period. Therefore, any argument that enjoining the
Countys mobile voting tour of hospitals and other interested institutions would make it difficult
for people to vote would be disingenuous at best.
65.

Moreover, voters still have until October 27 to submit a request to vote by mail. Thus,

patients in hospitals can easily vote in this election.

Striking the Mobile List will not

disenfranchise a single voter, but it will stop the Countys plans to manipulate Proposition One
by choosing its voters.
Conditions Precedent
66.

All conditions precedent have been performed or have occurred.


Prayer
WHEREFORE, PREMISES CONSIDERED, Plaintiff/Applicant respectfully requests:

1. A declaration that Hidalgo County has not substantially complied with the relevant statutes
because the Mobile List was not properly made a part of the Election Order nor was the
statutory publication requirement substantially met;
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2. A temporary restraining order be issued immediately enjoining the Defendants and all their
agents from implementing the Mobile List whatsoever, and
3. Temporary and permanent injunctions enjoining the Defendants and all their agents from
implementing the Mobile List whatsoever; and
4. That Plaintiff be awarded costs of this action, as well as all reasonable and necessary
attorneys fees pursuant to the Texas Uniform Declaratory Judgment Act and/or any other
relevant authority, and all other relief to which Contestant may be entitled.
Respectfully submitted,

_____________________________________
Jerad Wayne Najvar
Texas Bar No. 24068079
NAJVAR LAW FIRM
4151 Southwest Freeway, Suite 625
Houston, TX 77027
281.404.4696 phone
281.582.4138 fax
jerad@najvarlaw.com
Counsel for Plaintiffs

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