## In the Court of Appeals Second Ap pellate District of T exas

at For t Worth

___________________________ No. 02

- 22

- 00412

- CV

___________________________

On Appeal from the 4 3rd District Court Parker County, Texas Trial Court No. CV22

- 0923

Befo re Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Womack 

### C HRISTOPHER 

### R

AMSEY 

### , N ATASHA 

### R

ANDOLPH 

### , K

YNDEE 

### V ENABLE 

### , AND 

### A UBREY 

### V ENABLE 

### , Appellants

V



### . C RICKETT 

### M I LLER 

### , P AT 

### D EEN 

### , G EORGE 

### C ONLEY 

### , C RAIG 

### P E ACOCK 

### , L ARRY 

### W ALDEN 

### , AND 

### S TEVE 

### D UGAN 

### , Appellees2 MEMORANDUM OPINION
I. I NTRODUCTION
In this case, we m ust deci de whether the tr ia l court ha s sub j ect matter jur isdiction to adjudic ate Ap pellants ’ com plaints concerning Pa rker County ’ s use of an
electronic voting syste m. The trial court granted Parker Count y ’ s p lea to the jurisdiction and dismiss ed Appellants ’ laws uit

. Because we agree with th e tri al court ’ s

conc lusion that it lacks jurisdiction, we w ill affirm

. I I. B ACK GROUND
I n August 2022, Appellants Christopher Ramsey, Natasha Randol ph, Ky ndee
Vena ble, and Au b rey Venable

— all acting pro s e
— filed suit against Parker County 1 claiming that its use of an electroni c vo ting system ha d v i olated

— and will c ontinue to
violate

— cert ain provision s of the Texa s Election Code and certain of Appellants ’ federal and state constitutional rights , including the ir rights to due process and equal protection

. I n broad terms, Appella n ts all ege d that elec troni c voting system s may be subject to attack by c ybercriminals or hostile foreign actors who might wish to manipulat e the outcome of elections and that this vulnerability creates a risk that Appellants ’ v otes might not be counted pro perly. Base d on th e se allegations,

1 Appellants nam ed Parker County Elect ions Administrator Cricket t Miller ; Parker County Judge Pat De en ; and Parker County Commiss ioners George Conl ey, Craig P e ac ock, Larry W al den, and Steve Dugan as defendants. Because Appellants sued these individuals in their official capacities, we refer to the defendants (Appellees here) collectively as Parker Count y for ease of discussi on .3

Appell ants sought , amo ng other t hings, a declaratory judgment that Parker County ’ s approval of its electron ic voting system was unlaw ful and emergency inju nc tive rel ief
pr oh ibi ting Parker County from “ requiring or permit t ing voters to have votes cast or tabulated using any electronic voting systems

. . . . ”
Parker County filed a plea to th e jurisdiction and a motion to dismiss Appellants ’ lawsuit in which it as serte d that the trial court lacked subject matter jurisdicti on bec aus e, amon g other t hings, Appellants did not have standing and had failed to plead sufficient facts to overcome Parker County ’ s governmental immunity. After a hearing , the trial court signed an order dis mi ssing Appell ants ’ lawsuit for l ack of jurisd i ction. Appellants, again act ing pro se, timely filed this appeal

. III. D ISCUS SION
A. Pleas to the Jurisdict ion Generally: S tandard of Review and Applicable Law A plea to t he jurisdiction is a dil atory plea that seeks dis missal of a case for lack
of s ubject matter jurisdiction. Harris Cnty. v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004). A jurisdictional plea ’ s purpose is to defea t a cause of a ction withou t regard to the

assert ed claims’ merits. Blan d ISD v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). The ple a

ma y challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights ISD v. Clark , 544 S.W.3d 755, 770 ( Tex. 2018). T he plea to t he jurisdiction
standa rd generally mirrors tha t of a traditional motion for summary judgment under
Te xas Ru le of Civil Procedure 166a(c). Tex. Dep ’ t of Parks & Wildlife v. Miran da , 133 S.W.3d 217, 22 8 (T ex. 2004). Under this standard, the governmental unit must4

meet the summa ry judgment standard of pr oof by successfully as s erting and supporting w

ith evi dence that the trial court lacks subject matter jurisdic tion. Id. The burden then shifts to the plaintiff, who

— wh en the facts underlying the merits and subject matter jurisdic tion are intertwined

— must show that there is a d i sputed
material fact re garding the jurisdictional issue. Id. (citing Huckabee v. Time Wa rner Ent.
Co. , 19 S.W.3d 413, 420 (Tex. 2000)).
Whether the trial court has subject matter jurisdiction is a legal que stion that we
review de novo. Id. at 226. We r e view a plea to the jurisdictio n by considering the pleadings, the f

actual asse rtions, and all relevant evidence in the record. City of Houston

v . Hous. Mun. Emps. Pension Sys. , 549 S.W.3d 56 6, 575 (Tex. 2018). When reviewing a plea to the jurisdiction t h at inco rporates evidence impli cating the merits of the case,

we must “take as true all evidence favorable to the nonmovant” and “indulge every

re asonable inference and resolve any doubts in t he nonmovant ’ s favor. ” Miranda , 133 S.W.3d at 228 (citing Sci. S pectrum , Inc. v. Martinez

, 941 S.W.2d 910, 911 (Tex. 1997)). If the ev

idence creates a fact question regarding jurisdiction, the trial court

mus t deny the plea and leave its resolution to th e factfinder. Id. at 227

– 28. But if the
evid ence is undisputed or fail s to raise a fact quest ion on the jurisdictional issue, the
trial court rules on the plea as a matter of law. Id. at 228. B. Scope of this Ap peal
While Appellants ’ brief addresses the jurisdictional issues raised in Parker
Count y ’ s p lea to the jur isdict

ion , it also includes ar gu ments regarding the substantive5

merits of Appellants ’ claims, which are not properly at iss ue in thi s appeal. See Kehoe v.
Kendall C nty

. , No. 04

- 19

- 00825

- CV, 2020 WL 4045991, at * 2 (Tex. App.

— San Antonio July 1 5, 2020, no pet.) (mem. op.) (citing MHCB ( USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal Dist. Rev

. Bd. , 249 S.W.3d 68, 89 (Tex. App.

— Houston [1st Dist.] 2007, pet. denied) ). Because all of Appellants ’ enumerated appellate issu e s relate to the subs tantive mer its of their claims , we w ill n ot address them

. 2 Rather, we
will limit ou r inquiry to th e sole question decided by the trial court: whether it has subject matter jurisdiction to adjudicate Appellants ’ claims. 3 Se e MHCB , 249 S.W.3 d

at 89

. To resolve this question , we mus t, as a thresh old matter, de termine whether Appellants have st anding

.

2 Although we wi ll not add ress t h e merits of Appellants ’ claim s, w e may , if
neces sary, consider th e claims ’ viability in determining whet her Parker County retai ns governmental immunity

. See P ere z v. Turn er , 653 S.W.3d 191 , 198 (

T ex. 2022)

.

3 I n their b rief, Appellants arg ue that the tri a l judg e was b iased because Appellants ’ lawsuit calls into question “ the methods and m echanisms through which [he himself was] granted offic e. ” We construe this as a complaint that the tr ial judge should have recused himself due to bias. S ee Tex. R. Civ. P . 18b(b)(2) (providing that

“ [ a ] judge must recuse in any proceeding in which

. . . the judge has a personal bias or prejudice concerning the subject matter or a party”). “ But a litigan t claiming that a judge is biased or prejudiced must timely move to r e cuse the jud ge in the trial court in accordance with Rule 18a; otherwise the issue is waived on appea l. ” Jonson v. Duong , 642 S.W.3d 189, 19 5 (Tex. App.

— El Paso 2021, no pet.) ( first cit ing Nairn v. Killeen Indep. Sch. Dist. , 366 S.W.3d 22 9, 250

– 51 (Tex. A pp.

— El Paso 2012, no pet .) ; and then citing Esquivel v. El Paso Healthcare Sys., Ltd. , 225 S.W.3d 83, 88 (Tex. App.

— El Paso 2005, no pet.) ) ; accord Frankli n v. City of Fort Worth , No. 02

- 12

- 00453

- CV, 2014 WL 3696092, at * 4 (Tex. App.

— Fort Worth July 24, 2 0 14, no pet.) (mem. op.)

. Here, the record contains no motion to recuse, and Appellants do not contend in th eir brief that t he y raised the t rial judge ’ s alleged bias below

. Accordingly, t he issue is not preserved for our review , and we wi ll not address i t
. See Jonso n , 642 S.W.3d at 19 5

.6

C . Standing “Standing is a constitutional prerequisite to main taining suit[ ]” and an essential component of subject matter j urisdiction. Tex . Dep ’ t of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 646 (Tex. 2004). Ordinarily , a citizen lacks standing to bring a lawsuit challenging the lawfulness of governmenta l acts. Brown v. Todd , 53 S.W.3d 297, 302 (Tex. 2001). “This is because ‘[g]ov ernments cannot operate if every citizen who
concludes t hat a public official has abused his discretion is granted the right to come into court and bring such official ’ s public acts u nder judicial review.’ ” Andrade v.
Venable , 372 S.W.3d 134, 136

– 37 (Tex. 2012) ( quoting Bland , 34 S.W.3d at 555 ). The general te st for constitutional standing in Texas is whether there is a justiciable controversy between the parties that will actually be resolved by the relief sought in court. Bacon v. Tex. Hist. Comm ’ n , 411 S.W.3d 161, 174 (Tex. App.

— Austin 2013, no pet.) (citin g Tex. Ass ’ n of Bus. v. Tex. Air C

ontrol Bd. , 852 S.W.2d 440, 446 (Tex. 1993)). Thus, c onstitutional standing concern s not only whether a justiciable
controversy e xists , but also whe ther the particular pl aintiff has a sufficient personal
stake in the cont roversy to assure th at it is “ actual ” in the sense that the court ’ s decision would resolve it

. Id. ( first citing Patterson v. Planned Parenthood , 971 S.W.2d 439, 442 (Tex. 1998) ; and then citing Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist. , 925 S.W.2 d 659, 662 (Tex. 1996) ).7

The Texas Supreme Court , noting the p arallels between the test s for standing
under federal and Texas law and looking to the U nited States Supre me Court fo r guidance, ha s ex plained that st anding requires th ree essential e lem ents: First, the plaintiff must have suffered a n “ injury in fact ”

— an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “ actual or imminent, not ‘ co njectural ’ or ‘ hypothetical. ’ ” Second, there must be a causal connection between the injury and the conduct compla ined of

— the injury has to be “ fairly

. . . trace[able] to the challenged action of the defendant, and not

. . . th[e] result [of] the independent a ction of some third party not b efore the court. ” Third, it must be “ like ly, ” as opposed to merely “ speculative, ” that the injury will be “ redressed by a favorable decision. ” Heckman v. Williamson C

nty

. , 369 S.W.3d 137, 154

– 55 (Tex. 2012) (quoting Lujan v. Defenders of Wildlife , 504 U. S. 555, 560

– 61, 112 S. Ct. 2130 , 2136 (1992 ) )

. Thus, a plaintiff “ su[ing] solely as [a] citizen []

. . . insi st [ing] th at the government follow the law ” do es not have standing

. See Andrad e v. NAACP of Aus tin , 345 S.W.3d 1, 8 (Tex. 2011). Rather, “ regard less of the claim asserted, ‘ a plain tiff

m ust show that he has suffered a particularized injury distinct from the general public. ’ ” 4 P ere z

, 653 S.W.3d at 19 9 ( quoting Venable , 372 S.W.3d at 137 )

.

4 We note that Appellants seek, among other things, injunctive relief under Tex as Elec tion Code Section 273.081. But the Tex as Supreme Court has made it cle ar that this statutory provis ion does not itself create stan ding ; rath er, a plaintiff seeking injunctive relie f under Sect ion 273.081 mus t still show “ injury or damage

‘ other than as a member of the general public. ’ ” In re Morris , No. 23

- 0111 , 2023 WL 254 30 47 , at *7 n.47 (Tex. Mar. 17, 2023) (quoting NA ACP of Austin , 345 S. W.3d at 17 ).8

Here, Appellants have failed to establish standing. First, th e in jur y that they
have alleged i s not “ con crete and par ticularized

. ” See Heckman , 369 S.W.3d at 154

– 55 (quoting Lujan , 504 U.S. at 560

– 61 , 112 S. C t. at 2136 )

. Inst ead , Appellants m erely

assert a generalized gr

ievance

. See Lujan , 504 U.S. at 573

– 74 , 112 S. C t. at 2143

. The prelimina r y stat ement to Appellants ’ petit ion reveals the g eneralized nature of their
claims : This

. . . is an action to bring transparency, fairness, honesty, and exemplary q uality to Texas election s and to hold responsible thos e government officials who violate t he equ al protection and due process rights of [Appell ants] (and all Texas citizens) guaranteed by the Texas Constitution.

. . . [Appellants] (and all Texas citizens) ha [ve] a fundamental l e gal right to the clearly establ ished principles of election equal i ty, in tegrity, accurateness, honesty, and justice. [Emphasis added.]
This excer pt plainly demo n strates that Appellants filed suit “ solely a s
citi zens
. . . i n s ist[ing] that the government foll ow the law. ” S ee NAACP of Austin , 345 S.W.3d at 8. Far fro m asser ting disparate tr eatment or a particularized injury , Appellants actually imply that the y are in the same situation as “ a ll Texas citizens

. ” 5

5 I n NAACP of Austin , the Texas Supreme Co urt recognized that vote rs o ften have standing to bring claims asser ting a den ial of equal protection and h eld that the appellants had standing to sue for an equal protection violat ion based on th eir
co mplaint that they were forced to use a specific electr onic voting system ad opted by Travis County while absentee voters, members of the military , and voters living i n counties other than Travi s County were not. 345 S.W.3d at 6

– 11. Ap p ellants ass ert an eq ual protection claim, but un l ike the NAACP of Austin a ppellants, they do no t a ll ege di sparate tr eat ment. The closest Appellants come to mak ing such an allegation is their statement that “ [a] voting system that co unts ballots cas t by s ome voters u sin g diff erent standards from ballots cast by other voters also violates the Equ al Pr otect ion rights of th e voters. ” Even if this vague a sse rtion

— which is bur

ied in Appellants ’
re quest for e merg ency inju nctive relief and is not in cluded in the section of the ir9

Thus, they have failed to show that they have “ suffered a part icularized injury distinct from the general p u blic. ” See P ere z , 653 S.W.3d at 19 9 ( quoting Venable , 372 S.W.3d at
137 ) ; see also Garcia v. City of Willis , 593 S.W.3d 201, 206

– 08 (Tex. 2019) ( holding appellant lacked s tanding to bring prospective claim s regard ing the cons titutionality of

re d

- light tr a ffic c ameras bec ause he “ st[ood] in the same shoes as any other citizen who might potentially be fined for running a red light ” and therefore “ lack [ed] the particularized interest for standing that prospective reli ef requires ” )

. Second , Appellants do not allege an “ act ual or immin ent ” i n jur y . See Heckman , 369 S.W.3d at 154 (quoting Lujan , 504 U.S. at 560 , 112 S. C t. at 2136 )

. Appellants ’ claimed injury is premised on the possibi lity th at cybercriminals or hostile foreign

actors might be able to mani pula t e the outcome of elections in Parker County

. However, Appel lants have not shown that such manipulation has actually o ccurred or
pet ition describing thei r e qual protection c aus e of action

— could be considered sufficient to assert an equal protection claim based on disparate trea tment , Appellants would stil l lack standin g because, as will be d iscussed below , their co mplaint of p oss ibl e i njury is based on the certification of elect ronic voting systems , a duty given exclusively to the Te xas Secret ary of S tate, not Park er County. See Tex. Elec. Code Ann. § 122.031 (a)

. Thus, the alleged injury is not “ fairly

. . . trace [able] to the
c hal len ged action of the defendant

. ” See Heckman , 369 S.W.3d at 154

. Moreover, even if we were to assume that Appellan ts have stand ing to bring such a claim, the trial court wo uld still lack subject mat ter jurisdiction because the claim is not viable and thu s P arker County would retain gover nmental immunity. See N AACP of Austin , 345 S.W.3 d at 11

– 14 ; see also P ere z , 653 S.W.3d at 198 ( “ If the plaintiff ’ s claim lacks
mer it even when taking the pleaded facts as true, the pleading has not overc ome the governm ent ’ s immunity. ” ). As the su preme court pointed out in concl uding that the NAACP of Austin appell ants ’ similar equal protection claim concerning the certification of e lectronic voting machines was not viable , “ [n ] o voting system is [perfect ] , ” and while o ther v oting systems may pro vi de more secu rity, “ the equal pro tection claus e does not require infallibility. ” 345 S.W. 3d at 14

.10

is imminent. Because Appellants alleg e an inj ury that is merely “ ‘ conjectural ’ or

‘ h ypothetical , ’ ” they have not est ablished s tandin g. See id

. Third, Appellants ’ alleged injury is not “fairly

. . . traceable” to Parker County ’ s condu ct. See id. Appellants ’ complain ed

- of injury stems from the certificat ion a nd approval of the e lectronic voti ng system utilized by Parker County (or electron ic voting systems in general). But Parker County plays no role in the certification
process; ra ther, this is the sol e responsibility of the Texas Secretar y of State. See T ex. Elec. Code Ann. § 122.031 (a)

. Thus, Appellants have failed to sho w a causal

co nnection between Parker Co unty ’ s actions and the po tential injury that they allege.
See Heckman , 369 S.W.3d at 154 (quoting Lujan , 504 U.S. at 560 , 112 S. C t. at 2136 ) ; Ell is v. Wildcat Creek Wind Farm LLC , No. 02

- 20

- 00050

- CV, 2021 WL 1134416 , at * 3 , *6

– 8 (Tex. App.

— Fort Worth Mar. 25, 2021, no pet.) (mem. op.) (hold ing that appellants lacked standing because, among other things, they had failed show a causal
link between th eir injury and th e defendant ’ s cond uct )

. In sum, because Appellants f a iled to esta blish the required elements of standing , the trial court pro perl y dismissed their lawsuit for lack of jurisdiction.
I V. C ONCLUSION Having determined that Appellants lack standing and that the trial court thus lacks subject matter jurisdict i on , we affir m the trial court ’ s dismissal order

.11 /s/ Dana Womack
Dana Womack Justice
Delivered: May 25, 202 3