Last November Houston voters approved an amendment to the city charter that changed the length and maximum number of terms elected officials can serve.
The lawsuit by Phillip Paul Bryant alleges the language on the ballot tricked voters into thinking they were voting for limiting terms, when they really extended them.
But the city says the plaintiff missed the deadline to deliver the citation.
"And so the city's legal department has filed a plea to the jurisdiction, essentially saying that you filed a lawsuit but you didn't give timely and proper service,” Mayor Sylvester Turner says. "And as a result the lawsuit should be dismissed."
The city also claims the wrong person was served because the certified mail was accepted and signed by a city employee who works in the mail room instead of then-Mayor Annise Parker.
Eric Dick, attorney for the plaintiff, dismisses both arguments. He points out the Texas Election Code only says a citation has to be returned to the court if it's not served within 20 days.
He says if you miss the deadline, you can try again.
"There's no case law to follow what they're saying. They're just making stuff up," Dick says. "It's sanctionable. It's frivolous. They can't win on the merits of the case, so they're just lying. It's a straight-up bold-face lie."
Theodore Rave, professor at the University of Houston Law Center, says the problem with the plaintiff's assertion is that election contests need to be filed within 30 days after an election.
"It's possible that if the plaintiffs had, within that original 30 days after the election, gone back to the court and asked for a new citation, that might have reset the 20-day clock and the plaintiff could have served that new citation within 20 days," Rave says.
The lawsuit was filed in time but the city wasn't served until six weeks after the election.
Dick also takes issue with the way the city is challenging the lawsuit, saying in a press release, "what is humorous about the City of Houston's argument for dismissal of the underlying lawsuit is that one of the elements of a special appearance is that the person or entity seeking, it isn't a resident of Texas."
A judge is scheduled to hear both parties on Feb. 26.
Here’s the original petition.
See the city’s motion here.