CAUSE NO.
_________
STEVEN HOTZE, M.D., § IN THE DISTRICT COURT
BRYAN SLATON, §
SHARON HEMPHILL, §
AL HARTMAN, §
HON. CATHIE ADAMS, §
HON. RICK GREEN, § ______ JUDICIAL DISTRICT
NORMAN ADAMS, §
§
Plaintiffs, §
§
v. §
§
RUTH R. HUGHS, §
in her official Capacity as Texas §
Secretary of State, §
§
Defendant. § TRAVIS COUNTY, TEXAS
PLAINTIFFS’ ORIGINAL PETITION, APPLICATIONS FOR EMERGENCY
TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, AND
PERMANENT INJUNCTION
COME NOW Plaintiffs, Steven Hotze, M.D., Bryan Slaton, Sharon Hemphill, Al Hartman,
Hon. Cathie Adams, Hon. Rick Green, and Norman Adams, and file their Original Petition,
Applications for Emergency Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction, and for cause would show as follows:
BACKGROUND FACTS
History typically measures the way our nation and state respond to adversity by our resolve
in our commitment to the liberties enshrined in our constitution. The strength of these liberties is
determined not by our resolve in times of ease, but in times of stress.
On March 13, 2020 Governor Abbott declared a state of disaster in response to a strain of
the novel coronavirus, COVID-19. Since issuing his disaster proclamation, Governor Abbott has
unilaterally suspended numerous laws. For instance, on June 26, 2020, Governor Abbott issued
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GA-28, stating “I have issued executive orders and suspensions of Texas laws in response COVID-
19….” (Exhibit “A”) In GA-28, among other things, limits the occupancy of certain business and
orders that “people shall not visit bars or similar establishments that hold a permit from the Texas
Alcoholic Beverage Commission (TABC)….” (Exhibit “A”) On July 2, 2020 Governor Abbott
issued Executive Order GA-29. (Exhibit “A”) In GA-29 Governor Abbott states that he can
suspend law and states, “Every very person in Texas shall wear a face covering over the nose and
mouth when inside a commercial entity or other building or space open to the public, or when in
an outdoor space, wherever it is not feasible to maintain six feet of social distancing from another
person who is not in the same household. . . .” (Exhibit “A”)
Texas Election Code §85.001(a) provides that “[t]he period for early voting by personal
appearance begins on the 17th day before election day and continues through the fourth day before
election day.” On July 27, 2020, Governor Abbott chose to suspend the Texas Election Code,
Section 85.001(a), unilaterally amending the Texas Election Code and moving early voting back
to Tuesday, October 13, 2020. (Exhibit “B”) Governor Abbott’s July 27, 2020 Order also
amended Texas Election Code §86.006(a-1), ordering, “I further suspend Section 86.006(a-1) of
the Texas Election Code, for any election ordered or authorized to occur on November 3, 2020, to
the extend necessary to allow a voter to deliver a marked ballot in person to the early voting clerk’s
office prior to and including on election day.”
This draconian order is contrary to the Texas spirit and invades the liberties the people of
Texas protected in the constitution. If the courts allow this invasion of liberty, today’s
circumstances will set a precedent for the future, forever weakening the protections Texans
sacrificed to protect.
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Viruses mutate, so there may be a different coronavirus strain, or some other contagion,
next year. Like the flu vaccine, this year’s coronavirus vaccine may not protect against next year’s
strain. Will we allow a Governor to unilaterally suspend laws, bypass the Texas Legislature and
trample on the Texas constitution? We cannot allow Governor Abbott to issues Orders similar to
his July 27, 2020 edict that set precedent for future governmental remedies to viruses or diseases.
Will it be a little easier next time for a governor to unilaterally make sweeping changes to the
Texas Election Code, force people to wear certain items or not act in government-disapproved
activities on pain of criminal sanctions? If Governor Abbott’s July 27, 2020 Order is implemented,
the government will further trample on the liberties of Texans.
DISCOVERY CONTROL PLAN
Plaintiffs intend to conduct discovery under Level 2 of the rules set forth in Rule 190 of
the Texas Rules of Civil Procedure.
DISCLOSURES
Plaintiffs request Defendant provide disclosures in accordance with Texas Rule of Civil
Procedure 194, including relevant documents.
TRCP 47 STATEMENT
Plaintiffs are suing for injunctive relief and declaratory relief.
Plaintiffs are seeking monetary relief of less than $100,000.00.
JURISDICTION AND VENUE
The Court has subject-matter jurisdiction under the Texas Constitution, Article V, § 8, as
the amount in controversy exceeds the minimum jurisdictional limits of the court of exclusive
interest. Plaintiffs seek relief that can be granted by courts of law or equity.
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The Court has jurisdiction over the Plaintiffs’ request for declaratory relief against
Defendants because the Declaratory Judgment Act waives governmental immunity when the
plaintiff is challenging the validity of an ordinance, order, or government action. See Tex. Civ.
Prac. & Rem. Code §§ 37.004, 37.006; Texas Lottery Comm’n v. First State Bank of DeQueen,
325 S.W.3d 628 (2010; Texas Ed. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994).
The Court has jurisdiction over the Plaintiffs’ request for injunctive relief against
Defendants because Defendant is acting ultra vires by unlawfully enforcing a provision that
violates Texas law and the Texas Constitution. See Cty of El Paso v. Heinrich, 284 S.W.3d 366-
368-69 (Tex. 2009).
Plaintiffs have standing to seek declaratory and injunctive relief because they are adversely
and irrevocably harmed by the illegal Order Defendants is implementing.
The Court has personal jurisdiction over the Defendants.
Venue is proper in Travis County because Defendant has her principal office in Travis
County, Texas. See Tex. Civ. Prac. & Rem. Code § 15.002(a)(3).
Plaintiffs have provided the Texas Attorney General with notice of this suit as required by
Texas Civil Practice & Remedies Code §30.004(b).
PARTIES
Plaintiff Steven Hotze, M.D. is a registered voter in Harris County, Texas who is eligible
to vote, is a resident of Harris County, Texas, a citizen of the United States and who voted in
person in the March 3, 2020 primary and will vote in the November 2020 general election.
Plaintiff Bryan Slaton is the Republican nominee for Texas House of Representatives
District 2. Plaintiff Bryan Slaton is on the ballot in the general election on November 3, 2020.
Plaintiff Bryan Slaton is a registered voter in Hunt County, Texas who is eligible to vote, is a
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resident of Hunt County, Texas, a citizen of the United States and who voted in person in the
March 3, 2020 primary and will vote in the November 2020 general election.
Plaintiff Sharon Hemphill is the Republican nominee for the 80th Judicial District in Harris
County, Texas. Plaintiff Sharon Hemphill is on the ballot in the general election on November 3,
2020. Plaintiff Sharon Hemphill is a registered voter in Harris County, Texas who is eligible to
vote, is a resident of Harris County, Texas, a citizen of the United States and who voted in person
in the March 3, 2020 primary and will vote in the November 2020 general election.
Plaintiff Al Hartman is a registered voter in Harris County, Texas who is eligible to vote,
is a resident of Harris County, Texas, a citizen of the United States and who voted in person in the
March 3, 2020 primary and will vote in the November 2020 general election.
Plaintiff Norman Adams is a registered voter in Harris County, Texas who is eligible to
vote, is a resident of Harris County, Texas, a citizen of the United States and who voted in person
in the March 3, 2020 primary and will vote in the November 2020 general election.
Plaintiff Hon. Rick Green is a former member of the Texas House of Representatives and
a registered voter in Hays County, Texas. Plaintiff Rick Green is a registered voter in Hays
County, Texas who is eligible to vote, is a resident of Hays County, Texas, a citizen of the United
States and who voted in the March 3, 2020 primary and will vote in the November 2020 general
election.
Plaintiff Cathie Adams is the former Chairperson, Republican Party of Texas and a
registered voter in Collin County, Texas. Plaintiff Cathie Adams is a registered voter in Collin
County, Texas who is eligible to vote, is a resident of Collin County, Texas, a citizen of the United
States and who voted in the March 3, 2020 primary and will vote in the November 2020 general
election.
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Defendant Ruth Hughes (the “Secretary”) is sued in her official capacity as the Secretary
of State of Texas and is sued in her official capacity only. The Secretary’s official responsibilities
include serving as the Chief Election Officer for Texas, assisting county election officials and
ensuring the uniform application and interpretation of election laws throughout Texas. See TEX.
ELECTION CODE § 31.001(a). As head of the Elections Divisions of her office, the Secretary is
charged with administering the Texas Election Code. The Secretary may be served at 900
Congress, Suite 300, Austin, Texas 78751.
STATEMENT OF THE CLAIM
The facts below are supported or proved by the attached Exhibits, which are incorporated
herein for all purposes.
THE DECLARATION
1. Abbott’s July 27, 2020 Order Violates Article I, Section 28 of the Texas
Constitution
“The Constitution is not suspended when the government declares a state of disaster.” In
re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020). “All government power
in this country, no matter how well-intentioned, derives only from the state and federal
constitutions.” In re Salon A La Mode et al., No. 20-0340 (concurring opinion, J Blacklock) (Tex.
May 5, 2020). During a pandemic “the judiciary, the other branches of government, and our fellow
citizens—must insist that every action our governments take complies with the Constitution,
especially now. If we tolerate unconstitutional government orders during an emergency, whether
out of expediency or fear, we abandon the Constitution at the moment we need it most.” Id.
Any government that has made the grave decision to suspend the liberties of a free people
must demonstrate that its chosen measures are absolutely necessary to combat a threat of
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overwhelming severity. Id. Before suspending freedoms protected from infringement by the
Constitution, the government is also required to demonstrate that less restrictive measures cannot
adequately address the threat. Id. Whether it is strict scrutiny or some other rigorous form of
review, courts must identify and apply a legal standard by which to judge the constitutional validity
of the government’s anti-virus actions.
Justice Blacklock further stated: “[W]hen constitutional rights are at stake, courts cannot
automatically defer to the judgments of other branches of government. When properly called
upon, the judicial branch must not shrink from its duty to require the government’s anti-virus
orders to comply with the Constitution and the law, no matter the circumstances.” Id.
Government power cannot be exercised in conflict with the constitution, even in a
pandemic. In re Abbott, 2020 WL 1943226 at *1 (Tex. Apr. 23, 2020). Texas law does not and
cannot empower a Governor to unilaterally suspend the laws of the State of Texas. Article I, § 28
of the Texas Constitution states, “No power of suspending laws in this State shall be exercised
except by the Legislature.” The Texas Supreme Court has long held that the Legislature cannot
delegate “to anyone else the authority to suspend a statute law of the state.” Brown Cracker &
Candy Co. v. City of Dallas, 104 Tex. 290, 294-95 (1911); Arroyo v. State, 69 S.W. 503, 504 (Tex.
Crim. App. 1902) (“Under the constitution, the legislature ha[s] no right to delegate its authority .
. . to set aside, vacate, suspend, or repeal the general laws of this state.”).
“[P]rior to 1874 this section was as follows: ‘No power of suspending laws
in this state shall be exercised, except by the legislature, or its authority’”
(emphasis added). Arroyo, 69 S.W. at 504. This constitutional provision
was then specifically amended to remove the provision allowing the
Legislature to delegate its suspension power by “its authority.” Id. This was
expressly done to remedy “the history of the oppressions which grew out of
the suspension of laws by reason of such delegation of legislative authority
and the declaration of martial law.” Id.
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Article I, § 28 was created in part in response to then-Governor F.J. Davis “declar[ing] . .
. counties under martial law” and depriving of liberty “offenders by court martial in Houston,”
George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative
Analysis 84 (1977). Texas Government Code §418 is therefore unconstitutional on its face because
it purports to delegate legislative power to suspend laws to the Governor in contravention of Texas
Constitution, Art. I, §28 and Art. II, §1.
As the subject Order endeavors to suspend several provisions of the Texas Constitution,
and on its face admit that Defendant is suspending laws in accordance with Texas Gov’t Code
Chapter 418, the Order itself is an unconstitutional suspension of the laws and, therefore, violate
Article I, §28 of the Texas Constitution and are “null and void.” See Arroyo, 69 S.W. at 504.
Additionally, to the extent the Texas Disaster Act allows for the suspension of laws by the
Governor, it is unconstitutional and void.
The Texas Constitution limits Defendant’s authority even in times of crisis or
“extraordinary occasions.” If not limited, and if Constitutional rights may be suspended or
infringed, unilaterally and for unlimited duration, whenever a Governor “declares” an emergency,
then such rights are wholly illusory. Governor Abbott’s July 27, 2020 order violates the Texas
Constitution and therefore should be declared void.
2. Abbott’s July 27, 2020 Order Violates Texas Government Code, Chapter 418
Texas Government Code § 418 et seq., the Texas Disaster Act, precludes Governor Abbott
from unilaterally amending the Texas Election Code. Specifically, the Disaster Act limits
Governor Abbott’s power to those provisions expressly described in the statute. The Disaster Act
does not contain any language expressly allowing Governor Abbott to amend the Texas Election
Code.
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3. Abbott’s July 27, 2020 Order Violates Article I, § 19 of the Texas Constitution
Abbott’s July 27, 2020 Order violates the due course of law provision of the Texas
Constitution because it deprives Plaintiffs of their constitutionally protected rights without due
course of law. Article I, § 19, entitled, “Deprivation of life, liberty, etc.; due course of law,” states:
“No citizen of this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disenfranchised, except by the due course of the law
of the land.”
Tex. Const. art. 1, § 19. Governor Abbott’s actions constitute a violation and result in harm to
Plaintiffs and their due process rights and Plaintiffs (1) have a liberty or property interest entitled
to procedural due process protection; and (2) if so, the courts must determine which process is due.
Mosley v. Tex. Health & Human Servs. Comm’n, 593 S.W.3d 250, 264 (Tex. 2019). Due process
at a minimum requires notice and an opportunity to be heard at a meaningful time and in a
meaningful manner. Id.
4. Texas Government Code, Chapter 418, Violates the Texas Constitution
Texas Government Code Chapter 418 is unconstitutional on its face and as applied. Texas
Government Code Chapter 418 is unconstitutional on its face because it is an improper delegation
of legislative authority expressly prohibited by Texas Constitution, Art. II, §1. Abbott’s July 27,
2020 Order is facially unconstitutional because Defendant issued the Order pursuant to Chapter
418 (an unconstitutional statute) and because they purport to exercise the power to suspend laws
which authority is reserved exclusively to the legislature. Tex. Const. art. I, §28. As such, Texas
Government Code Chapter 418, and all orders issued pursuant thereto, should be declared
unconstitutional and rendered null and void.
5. Abbott’s July 27, 2020 Order Violates the Separation of Powers Doctrine
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The Order Defendant is tasked with implementing/enforcing, i.e., Abbott’s July 27,2020
Order, violates the separation of powers provision of the Texas Constitution because it suspends
laws. Article II, §1 of the Texas Constitution provides that “The powers of the Government of
the State of Texas shall be divided into three distinct departments, each of which shall be confided
to a separate body of magistracy, to wit: Those which are Legislative to one; those which are
Executive to another, and those which are Judicial to another; and no person, or collection of
persons, being of one of these departments, shall exercise any power properly attached to either
of the others, except in the instances herein expressly permitted.” Tex. Const. art. 2, §1. The
Texas Constitution vests the Legislature with “legislative power, i.e., the law-making power of
the people.” Tex. Const. art. 3, § 1.
Only the Legislature can exercise law-making power, subject to restrictions imposed by
the constitution. Tex. Const. art. II, § 1. Because of the Texas Constitution’s “explicit prohibition
against one government branch exercising a power attached to another,” Perry v. Del Rio, 67
S.W.3d 85, 91 (Tex. 2001), exceptions to the constitutionally-mandated separation of powers may
“never be implied in the least; they must be ‘expressly permitted’ by the Constitution itself.” Fin.
Comm'n of Texas v. Norwood, 418 S.W.3d 566, 570 (Tex. 2013). These restrictions must be
expressed or clearly implied. Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim. App.
1991) (citing Gov’t Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 563 (Tex. 1963)). The
Legislature may enact laws that enhance the general welfare of the state and resolve political
questions, such as the boundaries of political subdivisions, subject to constitutional limits. Carter
v. Hamlin Hosp. Dist., 538 S.W.2d 671, 673 (Tex. Civ. App.-Eastland 1976); see Hunter v. City
of Pittsburgh, 207 U.S. 161, 178-79 (1907).
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The Legislature may delegate some of its powers to another branch, but only if those
powers are not more properly attached to the legislature by Constitutional mandate. For example,
Legislative power cannot be delegated to the executive branch, either directly or to an executive
agency. State v. Rhine, 297 S.W.3d 301, 306 (Tex. Crim. App. 2009). The issue becomes a question
of the point at which delegation becomes unconstitutional. Id. The Texas Supreme Court has
described the problem: "the debate over unconstitutional delegation becomes a debate not over a
point of principle but over a question of degree." Tex. Boll Weevil Eradication Found., Inc., 952
S.W.2d 454, 466 (Tex. 1997).
The Texas Court of Criminal Appeals in Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim.
App 1978), stated that sufficient standards are necessary to keep the degree of delegated discretion
below the level of legislating. The existence of an area for exercise of discretion by the executive
branch requires that standards are formulated for guidance and there is limited discretion. Ex parte
Granviel, 561 S.W.2d at 514. The statute must be sufficiently complete to accomplish the
regulation of the particular matters falling within the legislature's jurisdiction, the matters of detail
that are reasonably necessary for the ultimate application, operation and enforcement of the law
may be expressly delegated to the authority charged with the administration of the statute. Ex parte
Granviel, 561 S.W.2d at 514. Therefore, if the Legislature has not provided sufficient standards
to guide the executive’s discretion and the delegated power is legislative, that executive has been
granted a power that is more properly attached to the legislature and the delegation is an
unconstitutional violation of separation of powers. State v. Rhine, 297 S.W.3d 306 (Tex. Crim.
App. 2019).
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Texas Government Code Chapter 418 not only does not provide robust, specific standards
related to delegation of legislative authority, it provides NO standards to guide Defendant’s
discretion when identifying penalties, including fines and incarceration.
CAUSES OF ACTION
The Plaintiffs brings their claims for relief under the Uniform Declaratory Judgment Act.
They also bring suit under City of El Paso v. Heinrich, 284 S.W.3d, 366, 368-369 (Tex. 2009),
which authorizes ultra vires claims against public officials who act in violation of state law.
Plaintiffs are seeking relief entirely under state law and are not asserting any claims that
arise under federal law.
EMERGENCY APPLICATION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs reallege and incorporate the foregoing paragraphs and incorporate them here as
if fully set forth herein.
Plaintiffs seek a temporary restraining order preventing Defendant from implementing
Governor Abbott’s July 27, 2020 Order. A temporary restraining order serves to provide
emergency relief and preserve the status quo until a hearing may be had on a temporary injunction.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). To obtain injunctive relief, “the
applicant must plead and prove three specific elements: (1) a cause of action against the defendant;
(2) a probable right to the relief sought; and (3) a probable, imminent, and irreparably injury in the
interim.” See Butnaru, 84 S.W.3d at 204. An applicant must plead a cause of action and present
some evidence that tends to sustain it to show a probable right of recovery. Intercontinental
Terminals Co., LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 897 (Tex.App.—Houston [1st Dist.]
2011, no pet.). “[T]he applicant is not required to establish that it will prevail on final trial.” Texas
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Kidney, Inc. v. ASD Specialty Healthcare, No. 14-13-01106-CV, 2014 WL 3002425, at *2 (Tex.
App.—Houston [14th Dist.] July 1, 2014, no pet.).
The Uniform Declaratory Judgment Act and Heinrich each provide Plaintiffs with a cause
of action to seek declaration and injunctive relief against the Defendants. Plaintiffs have a probable
right to relief because, for the reason described above, the Defendants’ conduct shut down the
Plaintiffs’ businesses and violates the Texas Constitution. Plaintiffs will suffer probable,
imminent, and irreparable injury absent a temporary restraining order and temporary injunction
because the Defendants are trampling on Plaintiffs’ rights under the Texas Constitution and are
exceeding Defendants’ authority under the Texas Government code § 410 et seq. The deprivation
of liberty is an irreparable injury.
Without immediate relief, Plaintiffs will suffer imminent and irreparable harm. With each
day that passes Plaintiffs are deprived of liberty their liberty interest in having their respective
representatives, i.e., the Texas Legislature, debate, vote and be heard on any amendment to the
Texas Election Code or suspension of the Texas Election Code by Governor Abbott and the
enforcement of Governor Abbott’s July 27, 2020 Order by the Defendant.
The harm to Plaintiffs described herein is a direct and proximate result of the acts of
Defendant enforcing and implementing an unconstitutional order. The requested temporary
restraining order is appropriate to preserve the status quo until a hearing on Plaintiffs’ application
for temporary injunctive relief can be held. For just cause, Plaintiffs request the entry of a
Temporary Restraining Order as follows, and further requests entry of a Preliminary Injunction
following a hearing:
Plaintiffs will provide Defendant’s counsel with notice of this Application for Temporary
Restraining Order and hearing on same.
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Plaintiffs files this Verified Application for Temporary Restraining Order and Other Equitable
Relief pursuant to general principles of equity, Texas Rules of Civil Procedure 680, et seq., and
Texas Civil Practice and Remedies Code section 65.011. Plaintiffs are willing to post a bond as
required by Texas law in an amount determined by the Court.
GROUNDS FOR TEMPORARY INJUNCTION
Plaintiffs reallege the foregoing paragraphs and incorporates them here as if fully set forth
herein.
Plaintiffs request this Court to set is Request for Temporary Injunction for hearing and after
hearing issue a temporary injunction against Defendant.
Additionally, Plaintiffs further request that following a trial on the merits of this case, that
the Court enter a permanent injunction against Defendant.
DEMAND FOR JUDGMENT
Plaintiffs demand the following relief:
a. a declaration that Governor Abbott’s July 27, 2020 Order violates Article I § 19 of the
Texas Constitution and is invalid;
b. a declaration that to the extent Texas Government Code Chapter 418 allows Defendant
to suspend laws, issue penalties, and violates the separation of powers doctrine, that
Chapter 418 of Texas law is unconstitutional;
c. a temporary and permanent injunction that prevents Defendant from enforcing and
implementing Governor Abbott’s July 27, 2020 Order;
d. a temporary restraining order that suspends the enforcement of Governor Abbott’s July
27, 2020 Order;
e. an award of nominal and compensatory damages;
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f. an award of costs and attorneys’ fees; and
g. all other relief that the Court may deem just, proper, or equitable.
Respectfully submitted,
WOODFILL LAW FIRM, PC
/s/ Jared R. Woodfill
Jared R. Woodfill
State Bar No. 00788715
Woodfill Law Firm, P.C.
3 Riverway, Suite 750
Houston, Texas 77056
Tel: (713) 751-3080
Fax: (713) 751-3058
woodfillservice@gmail.com (service)
jwoodfill@woodfilllaw.com (non-service)
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