in Re: Kristi Pena
05-17-00197-CV
| Tex. App. | Feb 28, 2017Background
- Relator Kristi Pena sought placement on the May 6, 2017 Irving mayoral ballot and submitted an application and petition requiring at least 36 valid Irving voter signatures.
- The Irving City Secretary rejected the petition because she could not validate five signatories as registered Irving voters, leaving Pena short of the required signatures.
- Pena filed affidavits asserting those five were registered when they signed, and filed an original petition for writ of mandamus asking the Court to compel the City Secretary to accept the petition and certify her on the ballot.
- The mandamus record did not show the City Secretary was presented the affidavits before Pena filed in this Court, nor that Pena formally demanded the Secretary accept the application in light of those affidavits and was refused.
- The court concluded Pena failed to show she provided the affidavits to the City Secretary and asked for performance of the non-discretionary duty, so mandamus relief was inappropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City Secretary must accept petition once affidavit evidence conclusively establishes signers were registered Irving voters | Affidavits conclusively prove the five challenged signers were registered; Secretary must accept and certify Pena on the ballot | Secretary did not have the affidavits before making the validation decision and thus did not fail to perform any duty | Court: Duty to accept arises only after relator presents uncontroverted evidence to the Secretary and requests acceptance; relator did not show she did so, so mandamus denied |
| Whether relator satisfied mandamus prerequisites (duty, demand, refusal) | Relator contends duty existed and Secretary refused to accept despite affidavits | Secretary lacked opportunity to act on affidavits; no demand/refusal shown | Court: Relator failed to show she demanded action based on the affidavits and that Secretary refused; prerequisites not met |
| Whether court may resolve factual dispute about voter status in mandamus | Affidavits conclusively resolve factual dispute | Election official must be presented evidence first; court should not resolve such factual disputes in mandamus | Court: Cannot resolve factual disputes in mandamus; official must first be presented with records to trigger non-discretionary duty |
| Whether procedural steps (presenting evidence to official) are required before seeking mandamus | Procedural step unnecessary if record conclusively shows eligibility | Must present public records to appropriate official and request performance before mandamus | Court: Presentation and demand are required; omission is fatal to mandamus claim |
Key Cases Cited
- In re Cullar, 320 S.W.3d 560 (Tex. App.—Dallas 2010) (mandamus relief requires presentment of records to election official before duty to act arises)
- Wentworth v. Meyer, 839 S.W.2d 766 (Tex. 1992) (statutory or constitutional restrictions on office-holding are strictly construed against ineligibility)
- In re Cercone, 323 S.W.3d 293 (Tex. App.—Dallas 2010) (letter challenging signatures did not constitute a demand that an official refrain from certifying a candidate)