Cаrlos CASCOS, in His Official Capacity as Secretary of State of Texas, Petitioner, v. TARRANT COUNTY DEMOCRATIC PARTY; Steve Maxwell, in His Official Capacity as Chair of the Tarrant County Democratic Party; Texas Democratic Party; Gilberto Hinojosa, in His Official Capacity as Chair of the Texas Democratic Party, Respondents
NO. 14-0470
Supreme Court of Texas.
October 30, 2015
Rehearing Denied November 20, 2015
473 S.W.3d 780
Max Renea Hicks, Law Office of Max Renea Hicks, Austin, Chad Wilson Dunn, Brazil & Dunn, LLP, Houston, for Respondents.
PER CURIAM
Political parties may apply to the secretary of state for state funds to reimburse expenses connected with administering primary elections. See
The secretary of state declined to reimburse certain legal expenses because the political party incurred those expenses after the primary election and in connection with the general election. The district court also declined to require the secretary to reimburse these expenses. The court of appeals reversed that decision, however, concluding that the secretary of state abused his1 discretion because the legal expenses werе connected to the primary election. 434 S.W.3d 188, 197–99, 202–03 (Tex.App.—San Antonio 2014). Because we conclude the secretary of state did not abuse his discretion in denying reimbursement, we reverse and render.
The legal expenses at issue arise from a suit contesting Wendy Davis‘s candidacy for a state senate seat in 2008. Davis ran in the Democratic primary unopposed but faced legal challenges to her candidacy before and after the primary. Before the
About four months after the primary election, Kim Brimer, Davis‘s Republican opponent, sued in Tarrant County to remove Davis from the general-election ballot. See Brimer v. Maxwell, 265 S.W.3d 926 (Tex.App.—Dallas 2008, no pet.). Brimer alleged that Davis was constitutionally ineligible to run for the Legislature because her application for the Democratic primary was filed during her term on the Fort Worth City Council. Id. at 928; see also
After defending Brimer‘s challenge to Davis‘s candidacy, the state and county Democratic Party chairpersons applied for reimbursement of related attorney‘s fees. The secretary of state had previously approved a reimbursement request for legal expenses related to the first, рre-primary challenge to Davis‘s candidacy but denied this request. The secretary reasoned that the Brimer legal expenses were “unrelated to the administration of the primary election,” which had already been held, and therefore should not be reimbursed from primary-election funds the Legislature appropriated.
Litigation ensued in Travis County, and following a bench trial, the trial court upheld the secretary of state‘s decision. The court found the Election Code to be “ambiguous on the issue of whether the secretary of state [was] required tо reimburse the Texas and Tarrant County Democratic parties for attorney‘s fees incurred in successfully litigating the eligibility of a Democratic candidate brought by her Republican opponent.” Because the statute‘s application was unclear, the trial court deferred to the secretary‘s determination. The court of appeals, however, disagreed with the trial court‘s reading of the statute, concluding that the Election Code plainly requires reimbursement of the legal expenses. 434 S.W.3d at 197–99, 202–03.
The appellate court identified the “crucial question” to be “whether the legislature intended to reimburse from state primary election funds a party‘s legal expenses for an election contest suit that seeks general election relief but is based on a complaint that the candidate was ineligible to appear on the primary election ballot.” Id. at 198. The relevant statute authorizes the secretary of state generally “to pay expenses incurred by a political party in connection with a primary election” or “in connection with the administration of primary elections.” Id. (quoting
The Election Code expressly grants the secretary of state discretion in determining what expenses are reimbursable from the primary fund. The Code provides that reimbursable expenses are those that the “secretary determines reasonably necessary for the proper holding of the primary election.”
Before an expense can be reimbursed, the party must submit a “written statement of estimated expenses to be incurred in connection with a primary еlection” to the secretary of state.
Although Brimer‘s suit came four months after the primary and the political party‘s request for reimbursement of legal expenses came later still, the secretary of state agreed not to contest the reimbursement request on the issue of timeliness. This concession in a Rule 11 agreement was for the stated purpose of expediting the case. Thus, instead of raising additional procedural issuеs, the secretary stood on the initial reason for rejecting the expense—that the Brimer litigation expenses were “unrelated to the administration of the primary election.”
The case was further expedited by stipulated facts, including a stipulation that the secretary of state had previously reimbursed certain legal expenses in connection with the primary election, including reimbursement for legal expenses incurred by the party in defending the Cerda litigation, the pre-primary attack on Davis‘s candidacy.3 Notwithstanding the litigants’ efforts to expedite a merits-based decision on the political party‘s reimbursement claim, the secretary argues here that the claim should be dismissed on sovereign-immunity grounds because the stipulations at trial omitted a necessary jurisdictional fact.
As noted, the Election Code requires a political party to file with the secretary a written estimate of anticipated primary election expenses. See
The court of appeals rejected a similar argument, deducing from the parties’ stipulations about the secretary paying other primary expenses, including other legal expenses, either that the political party “met the statutory requirement by filing a statement of estimated primary expenses or the secretary of state waived аny complaint about the requirement.” 434 S.W.3d at 197. Although the court‘s deduction may not be entirely correct, we agree that this record does not support the dismissal of the case on sovereign-immunity grounds.
Statutory prerequisites to suit are jurisdictional requirements for governmental entities, and, as such, are properly asserted in a plea to the jurisdiction. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 511 (Tex.2012). The secretary of state did not file a plea to the jurisdiction nor did he argue a lack of subject-matter jurisdiction in the trial court. Instead, the case proceeded expeditiously to a benсh trial on the merits with the secretary raising sovereign immunity only as an affirmative defense in his answer, an indication that the secretary viewed his immunity in the trial court as extending to liability rather than to suit. See Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004) (“Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction.“).
While the burden is ordinarily on the plaintiff to affirmatively establish jurisdiction, Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex.2012), the underlying jurisdictional fact here—whether the political party filed the written estimate of primary-election expenses—was not in dispute at trial. The secretary, of course, knows whether a statement was filed because the statement is filed with his office, and he does not assert that none was filed. Rather the secretary argues that the political party failed to establish jurisdiction conclusively by obtaining a stipulation of that fact. Like the court of appeals, we decline to dismiss the case on such tenuous grounds. We accordingly turn to the merits.
Although the Election Code authorizes the secretary of state “to pay salaries and other necessary expenses in connection with the administration of primary elections,” it also provides that state funds may not be used to reimburse “[e]xpenses incurred in connection with a convention of a political party or other party activity that is not necessary for the holding of a primary election.”
The political party responds that the secretary of state has adopted a rule on the payment of legal expenses in connection with primary elections and has previously applied that rule to reimburse a political party‘s post-primary legal expenses
The secretary‘s legal-expense rule, however, does not obligate the secretary to pay post-primary legal expenses out of the primary-election fund when those expenses relate to the general-election ballot. The rule applicable here instead states that the secretary will “only pay legal expenses related to litigation concerning the conduct of the primary election.” 28 Tex. Reg. 8217, 8223 (2003) (to be codified at
Chapter 173 generally provides that the “secretary of state may spend state funds appropriated for primary finance to pay salaries and other necessary expenses in connection with the administration of primary elections” but that expenses “not necessary for the holding of a primary election may not be paid with state funds.”
Pursuant to that authority, the secretary revised the administrative rules on primary elections in 2003 to provide guidance on his “use and management of all primary funds.” 28 Tex. Reg. 8217, 8218 to be codified at
The secretary of state is the state‘s chief election officer responsible for ensuring the uniform application and interpretation of election laws throughout Texas. Those duties include the implementation of chapter 173 and its primary-finance provisions. Chapter 173 authorizes the secretary to spend appropriations “to pay salaries and other necessary expenses in connection with the administration of primary elections,”
The court of appeals recognized the discretionary nature of the secretary‘s decision but did not apply an abuse of discretion standard. See 434 S.W.3d at 197–200. Instead, the court construed “in connection with a primary election” broadly to include (or rather, “not exclude“) the expenses at issue here and reversed on the basis of that construction. Id. at 198. This approach is problematic for two reasons. First, it improperly takes a snippet of language out of its statutory context. See In re Mem‘l Hermann Hosp. Sys., 464 S.W.3d 686, 701 (Tex.2015) (“Proper construction requires reading the statute as a whole rather than interpreting provisions in isolation.“). Second, it reads the secretary‘s discretion out of the statute. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008) (stating that court “must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous“).
Subsection (a)‘s broad permission to use state funds to pay expenses incurred “in connection with a primary election” is limited to uses “provided by this chapter.”
While section 173.001(a) permits the use of state funds for primary-related expenses, it does not expressly reference the secretary. Instead, other provisions authorize and obligate the secretary to act. Specifically, section 173.001(c) authorizes the secretary to spend state funds for primary-related expenses.
While chapter 173 permits public funds to pay expenses incurred “in connection with a primary election,” it obligates the secretary to approve (and thus pay) only those he determines to be “reasonably necessary for the proper holding of the primary election.”
The secretary‘s determination here, which denies legal expenses incurred by the political party in defending its nominee‘s right to appear on the general-election ballot four months after the primary election concluded, is neither arbitrary nor inconsistent with the statute, which limits reimbursement to those expenses reasonably necessary to the holding or administration of the primary election.
We recognize possible instances in which a governmental entity has limited its own discretion through the adoption of rules and regulations governing that discretion. See, e.g., Phillips v. Brazosport Sav. & Loan Ass‘n, 366 S.W.2d 929, 935 (Tex.1963). But as discussed above, the pertinent version of the secretary‘s administrative rules for determining which expenses are reasonable and necessary does not indicate what relationship must exist between legal expenses and the primary election. The rules do clarify that legal expenses can be reimbursed when reasonably necessary to a primary election, but neither party argues that legal expenses cannot be reimbursed at all. The secretary‘s administrative rules simрly do not speak directly to this dispute.
And although the secretary paid similar expenses once in the past, no basis exists in the record to conclude that the secretary had an improper motive for changing that policy or even that the prior payment was an intentional policy decision rather than an error or oversight. The secretary is not forever bound by the handling of a single application for payment, particularly one that was never legally challenged.
Because neither chapter 173 nor the appliсable administrative rule obligates the secretary of state to reimburse a political party for legal expenses incurred in defending its nominee‘s right to appear on the general-election ballot, we conclude that the secretary did not abuse his discretion in denying the requested reimbursement from the primary-election fund. The secretary of state‘s petition for review is granted, and without hearing oral argument, we reverse the court of appeals’ judgment and render judgment that the political parties take nothing.
Notes
Subject to appropriation by the Texas Legislature, notwithstanding anything to the contrary in this chapter, and only if prior written approval is obtained as set forth in subsеction (c) of this section, the SOS may provide primary-fund reimbursement for legal fees and expenses incurred by the party chair only for a lawsuit commenced against the chair which seeks to include a candidate‘s name on the Primary Election ballot after the chair either rejected the candidate‘s application or declared the candidate ineligible or which seeks to exclude a candidate‘s name from the Primary Election ballot after the chair declined to do so.