1/20/2023 4:04 PM
Marilyn Burgess - District Clerk Harris County Envelope No. 72002452
By: Bristalyn Daniels Filed: 1/20/2023 4:04 PM
No. 2023-00841
TAMI C. PIERCE, § IN THE DISTRICT COURT Plaintiff/Contestant, § § V. § 165TH JUDICIAL DISTRICT §
DASEAN A. JONES, § Defendant/Contestee. § OF HARRIS COUNTY, TEXAS
DASEAN A. JONES’ GENERAL DENIAL AND TEX. CITIZENS PARTICIPATION ACT MOTION (Anti-SLAPP)
The Honorable Judge DaSean Jones, Defendant/Contestee in the above matter files this ‘General Denial and Texas Citizen Participation Act Motion (Anti-SLAPP),’ in his individual capacity, and shows in support the following:
GENERAL DENIAL
Judge Jones hereby denies each and every allegation contained in the plaintiff/contestant’ s Petition. Judge Jones specifically denies that the plaintiff/contestant is entitled to any relief whatsoever and demands strict proof of each and every allegation.
WRITTEN OBJECTION TO THE ELECTION CONTEST
Judge Jones objects to this election contest due to Contestant failing to strictly comply with TEX. ELEC. CODE § 232.008 and §232.009. A contestant must deliver, electronically or otherwise, a copy of the petition to the secretary of state by the same deadline prescribed for the filing of the petition. TEX. ELEC. CODE §232.008 (d). Judge Jones demands strict proof of compliance with this section. If the contestant
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did not send notice to the Texas Secretary of State, this matter must be dismissed for failing to comply in a timely manner.
Additionally, the canvas authority must receive notice if a general election will be necessary if the contestant prevails. TEX. ELEC. CODE §232.009 (a). In order to effectuate this notice, a contestant “must attach to the petition a statement informing the clerk that the notice is required and containing the name and address of each person to whom the notice is required to be delivered.” TEX. ELEC. CODE §232.009 (d) (emphasis added).
Here, the contestant has not provided the required notice and has failed to include a necessary party, the Election Administrator, who is directly responsible for allegations in Pierce’s petition. If Tatum is excluded, then Judge Jones, an innocent party, will have to bear the cost of defending Harris County's actions related to the 2022 General Election.
TEXAS CITIZENS PARTICIPATION ACT MOTION (Anti-SLAPP Motion)
INTRODUCTION
Judge DaSean Jones, a 21-year active Reserve Army Lieutenant Colonel and recipient of the Bronze Star, has fought for this country in combat and now must defend democracy in Harris County, Texas. The contestant has alleged that the Harris County Election Administrator is so incompetent and lacking in ability that they cannot accurately tally the votes, let alone manage an election in the United States’ third largest county.
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While Judge Jones holds his esteemed colleague and challenger in high regard, he should not be responsible for resolving the legal problems, if any, caused by the Election Administrator Clifford Tatum. Judge Jones asserted his First Amendment right by running as a candidate in the 2022 General Election. Thus, Judge Jones has submitted this Anti-SLAPP motion, seeking the immediate dismissal of the election contest as the contestant failed to (1) provide clear and specific evidence of each element stated in her petition, (2) neglected to include the Election Administrator, (3) failed to notify the Texas Secretary of State, and (4) did not attach the requisite notice pursuant to Tex. Elec. Code § 232.009 prompting the District Clerk to send timely notice to the Harris County Canvas Board.
EVIDENCE
Judge Jones submits and incorporates by reference the following evidence in support of this motion:
i. Exhibit 1: Plaintiff/Contestant’s Original Petition
ii. Exhibit 2: Affidavit of DaSean Jones.
iii. Exhibit 3: Business Records Affidavit.
iv. Exhibit 4: Judge Jones’ Candidate Application.
v. Exhibit 5: November 8, 2022, Canvas Report-Official Results. (Pg 1805 to 1863).
vi. Exhibit 6: Attorney’ s Fees Affidavit. (will produce at hearing).
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FACTS
1. Judge Jones is an incumbent candidate for the Harris County 180th Judicial District Court located in Houston, Texas. See Exhibit 2 and 4. Judge Jones filed an application with the Harris County Democrat Party in Harris County, Texas to be on the ballot for November 8, 2022. See Exhibit 4. It is undisputed the election was held November 8, 2022 The official results of the election indicated Judge Jones received 534,460 votes, and Tami C. Pierce received 534,011. See Exhibit 5. Judge Jones won by 449 votes. Since he received the majority of the vote, he should remain the Judge of the 180th Judicial District Court.
2. Plaintiff/Contestant instituted this suit solely on the scope of inquiry outlined in the Tex. Elec. Code § 221.003. See Exhibit 1. Judge Jones does not waive his constitutionally-protected rights.
ARGUMENTS AND AUTHORITIES
3. In June 2011, the Texas Legislature enacted the Citizens Participation Act (hereinafter “CPA”). The CPA is codified in Sections 27.001-27.011 of the Texas Civil Practice and Remedies Codes. The purpose of the CPA is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law...” TEX. CIV. PRAC. & REM. CODE § 27.002 (emphasis added).
4. The CPA provides that when, as here, “a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.” Id. at §
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27.003(a) (emphasis added). Exercise of the right of free speech means a communication made in connection with a matter of public concern. TEX. CIV. PRAC. & REM. CODE 27.001 (3) (emphasis added). Communication includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic. TEX. CIV. PRAC. & REM. CODE 27.001 (1) Matter of public concern means a statement or activity regarding a matter of political, social, or other interest to the community or a subject of concern to the public. Id. at 27.001 (7)(B) and (C) (emphasis added). When individuals are candidates for public office, they place their character in issue and such issues of character and fitness for office are matters of public concern. Fitzjarrald v. Panhandle Publ'g, 228 S.W.2d 499, 503 (Tex. 1950); Light Pub. Co. v. Huntress, 199 S.W. 1168, 1173 (Tex.Civ.App. San Antonio 1919). More importantly, “the right to become a candidate for public office is a right protected by the First Amendment to the United States Constitution.” See Magill v. Lynch, 560 F.2d 22, 29 (1st.Cir.1977); Davis v. City of Dallas, 992 S.W.2d 621, 623 (Tex. App. 1999). The right to run for public office touches on two fundamental freedoms freedom of individual expression and freedom of association and is protected by the First Amendment. AM. JUR., 2d ed., § 606, Constitutional Law. 5. Judge Jones submitted his application to be on the ballot December 2, 2021. See Exhibit 4. This application immediately put his character and fitness for office at issue. See Exhibit 2. The public was allowed to vote for or against him while considering all aspects of his character as a valid candidate. Id. This act of seeking
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re-election is the pinnacle of political speech. In short, he is asking the public to elect him as a democrat, a lawyer, a service member, a husband, a father, as the incumbent and, most importantly the best candidate for office. Id. Clearly, running for office is a matter of public concern. This type of speech is what our legislature has attempted to protect by passing the CPA. Thus, the Court must declare that Judge Jones was engaging in a constitutional protected activity.
6. Upon filing of a motion to dismiss under the CPA, the Court shall dismiss the legal action if the moving party “shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party's exercise of the right of free speech; the right to petition; or the right of association.” Id. at § 27.005(b) (emphasis added). Judge Jones has demonstrated through a preponderance of evidence that the legal action is connected to his right to free speech, specifically, his pursuit of the 180th Judicial District Court bench. It is evident that he would not have been served this suit if he had not sought office, and the suit is related to his right to free speech and freedom of association. If this Court does not grant Judge Jones's motion, a dangerous precedent will be set. This will imply that a candidate must bear the cost of defending the government-operated electoral process in order to win an election. This will have a detrimental effect on candidates across the State and reduce participation in our democracy.
7. Now, once the defendant demonstrates that the suit involves one of the abovereferenced, constitutionally protected rights, the burden shifts to the plaintiff to demonstrate by clear and specific evidence a prima facie case for each essential element
Judge DaSean Jones
of the claim. Id. § 27.005(c) (emphasis added). If the plaintiff cannot develop a prima facie showing for each element, the Court must dismiss the claim. Id. In evaluating a motion to dismiss, the court must construe the CPA liberally to fully effectuate its purpose and intent to encourage and safeguard a defendant's constitutional rights. Id. at § 27.002, 27.011(emphasis added).
8. Pierce has sued Judge Jones under the Texas Election Code section 221.003. Pierce’s petition states:
“Plaintiff/Contestant Pierce contends that the outcome of the November 2022 election for judge of the 180th Judicial District Court, as shown by the final canvass, is not the true outcome at least due to any or all of the following reasons:
a. illegal votes (meaning votes that are not legally countable) were counted; or b. an election officer or other person officially involved in the administration of the election: i. prevented eligible voters from voting; ii. failed to count legal votes; or iii. engaged in other fraud or illegal conduct or made a mistake.”
See Exhibit 1 at Page 13 (emphasis added).
9. Pierce tracked the language of the scope of the inquiry and alleged that the true outcome is undeterminable due to “any or all of the reasons” outlined in the code. It is highly doubtful that Contestant can prove any of the plead elements by a standard of clear and specific evidence. Jones demands that Pierce prove all the plead reasons in her petition including the allegations on information and belief.
10. Procedurally, the CPA also has provisions for expedited considerations and rulings on a motion to dismiss and staying discovery. Once the motion is filed, the Court must set the motion for hearing not later than 30 days after it is served, and
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the Court must rule on the motion not later than 30 days after the hearing. See id. § 27.004, 27.005. Once the motion is filed, discovery is stayed until the court rules on the motion to dismiss. Id. at § 27.003(c).
11. If the defendant is successful in dismissing the legal action, the defendant is entitled to court costs, attorney’ s fees, and other expenses incurred in defending against the action as justice and equity may require. Id. § 27.009(a)(1). In addition to assessing costs, attorneys' fees, and expenses, the court shall also impose sanctions sufficient to deter the plaintiff from bringing a similar action in the future. Id. § 27.009(a)(2) (emphasis added). Judge Jones request the Court to reserve ruling on attorney fees until after the hearing.
CONCLUSION
12. In conclusion, Judge Jones’ s alleged activities are protected activities under the Citizens Participation Act and Plaintiff failed to produce clear and specific evidence on all elements of her claim. Therefore, this Court must exercise its powers pursuant to the Citizens Participation Act and dismiss Plaintiff’s claims.
PRAYER
13. Therefore, Judge Jones requests that the Court grant this motion, sign an order dismissing Plaintiff’s claims with prejudice, and award Judge Jones attorney’s fees and sanctions against Plaintiff to prevent similar conduct in the future. It is further requested that the Court hold a hearing on this motion within the next 30-
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days in accordance with the CPA and grant any other general or specific relief that may be deemed appropriate.
Respectfully submitted, THE OLIVER J. LAW FIRM, PLLC. 4141 Southwest Freeway Suite 390 Houston, Texas 77027
O: (713) 851-1110 C: (281) 788-8074 F: (281) 596-6951 oliver@theoliverjlawfirm.com
By:/s/Oliver J. Brown
Oliver J. Brown, Esq. State Bar No. 24087222 SD TX Fed Id. 2276574 Attorney for Hon. Judge DaSean Jones
Judge DaSean Jones 2023-00841
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Oliver Brown Bar No. 24087222 oliver@theoliverjlawfirm.com Envelope ID: 72002452 Status as of 1/20/2023 4:07 PM CST
Case Contacts
Name
Tami Pierce
Paul FSimpson
Robin Brokaw
Oliver JasonBrown
BarNumber Email
tpiercelaw@gmail.com psimpson@mcginnislaw.com rbrokaw@mcginnislaw.com oliver@theoliverjlawfirm.com
TimestampSubmitted
1/20/2023 4:04:09 PM
1/20/2023 4:04:09 PM
1/20/2023 4:04:09 PM 1/20/2023 4:04:09 PM
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