*1 vacated, Commission to consider under section and the case is remanded to the 52.108(3). trial court judgment for rendition of opinion. accordance with this jurisdiction not, however,
That does ex- allega- tend to AT & T Communications’ against engaged
tions SBCS that it has
with SWBT cross-subsidization and a
price squeeze. AT T& Communications
argues allegations squarely that 55.006, agree
within section and we
the language provision of that is broad enough encompass them. But the es- In re the Honorable Robert
sence of the allegations is that SWBT and FRANCIS, Relator. have engaged predatory pricing, SBCS No. 06-0040. subject which is the specific section argues 52.107. SBCS to also allow Supreme Texas. allegations predatory pricing to be con- 52.108(3) sidered as violations of section Argued Jan. nullify procedural
would restrictions Decided Jan. imposed by complaint section 52.107 that by interexchange must be made carrier proof by preponderance must Indeed, agree.
the evidence. We the title 52.108,
of section “Other Prohibited Prac-
tices”, following after section 52.107 enti- “Predatory
tled Pricing”, indicates that the
prohibited practices covered section predatory pricing
52.108 are other than
covered section 52.107. The fact that
AT & T Communications is an interex-
change complain carrier which could under bring
section 52.107 does not allow it to complaint
the same under section 52.108.
Accordingly, we conclude that the Com- jurisdiction
mission’s over SBCS extends allega- to AT T& Communications’ engaged preferen-
tions that SBCS has allegations
tial activities and not engaged
SBCS has with SWBT in cross- price squeeze.
subsidization or a Of
course, held, already as we have the Com- may
mission 60 AT chapter consider under allegations
T & Communications’ engaged competition. has in unfair
SWBT judgment appeals of the court of
reversed, judgment of the trial court is *2 County judge upon district chal-
Travis another candidate. lenge duty Candidates have a to file *3 applications comply for office that with the Election Code. But the ballot is not Texas restricted to those who never make a mis contrary, To the Election Code take. anticipates that candidates will occasional ly requires party offi specifically err and them that no candidate is ciаls to assist so unnecessarily. ballot excluded from the Wood, Ray Doug Ray,W. Randall Buck easily a defect could have been When L.L.P., Bonilla, Austin, Deborah Wood & properly per officials cured had Hankinson, Rick Thompson, G. Law Of- role, in nothing formed their PC, Dallas, for fices of Deborah Hankinson requires mandatory exclusion as a Code Relator. remedy. We hold that the trial court Keel, York, Larry York Patrick 0. F. concluding in that it does. erred Shack, Field, L.L.P., Keller & Edward M. Davidson, Wilson, Margaret A.
Donna G.
I
Reilly,
Crowley, Potts &
Frank
Michael C.
judicial
for statewide
office
Candidates
L.L.P., Austin,
Party.
Reilly,
for Real
an application accompa-
Texas must file
opinion
Justice BRISTER delivered
of at
by
nied
a
Court, in
which Chief Justice
eligible
least 50
voters from each of the
JEFFERSON,
HECHT, Justice
Justice
appellate
districts.2 The follow-
State’s
joined.
GREEN
MEDINA
Justice
at the
ing
appear
top
statement must
primary
With the arrival of the biennial
page
petition:
each
season,
again
must
once
we
address
I
of this
know that the
requires
whether the Texas Election Code
(insert
name) to
is to entitle
candidate’s
to be
papers
minor defects
a candidate’s
on the
placed
have his or her name
by eliminating the error or the
addressed
(insert
title,
ballot for the office of
office
case,
In this
a candidate for
candidate.1
other
including any place number or
Appeals
filed
the Texas Court
Criminal
number)
(insert
distinguishing
for the
signed by hundreds of
225-page petition
a
name) primary elec-
political party’s
voters,
enough to have
eligible
more than
by signing
I
this
tion.
understand
placed
Republican pri-
his name
ineligible
to vote
become
error,
mary ballot. But due to
clerical
in a con-
primary
participate
election or
did not state that he was
pages
several
including a
party,
vention of another
on that Court. The
running for “Place 8”
election,
holding
primary
party not
him a
Party of Texas listed
this
candidate,
during
voting year
which
name was removed
but his
Bell,
(Tex.2002);
172.021(g);
TEX. ELEC. CODE
See
1. See In re
Republican and Democratic candidates ing Party deadline. On December the judicial for statewide office must file their its review and notified Francis applications petitions completed and with the “state chair” primary they filings of the whose were order and his name However, (underlining original). § thority. 172.027 the is not con- part application purposes for sidered 172.023(a). § 4. See id. determining compliance of with the re- document, quirements applicable to each 172.022(a)(1). § 5. Id. deficiency requirements and a in the for may by one document be remedied the 141.032(a), (c). § 6. Id. The full text of this other contents the document. section reads: (d) A determination under this section that APPLICATION; § 141.032. REVIEW OF application complies applicable with the an NOTICE TO CANDIDATE. requirements preclude does not a subse- (a) application On the of an for a quent application determination that the ballot, authority the comply, subject does not to Section application whom the is filed shall review 141.034. application the to determine whether it (e) application If an does not form, complies with the as to applicable requirements, authority the content, procedure satisfy and that it must application immediately reject shall placed for the candidate’s name to be deliver to the candidate written notice of the ballot. rejection. the reason for the (b) (c), Except provided by as Subsection (f) apply does not to a determi- This section completed the review shall be not later than eligibility. nation of a candidate’s day application the fifth after the date the is by authority. received 141.032(c). § 7. Id. (c) accompanied by If an part is considered 141.032(b). 8. Id. application, and the review shall be completed practicable as soon as after the 141.032(e). au- date the is received 9. Id. posted may tempo
would be as a candidate end This Court review day rary injunction it was. from a writ of for —which appeal mandamus when an expedited later, days thirty Three minutes if, would inadequate; example, be deadline, attorney before the appeal completed could not Party another candidate notifiеd officials addition, issue moot.11 In became Section “Place about omission of 8” from sev- gives 273.061 of the Texas Election Code petition. Fri- eral On jurisdiction to issue a writ 6, 2006, Party day, January Chair re- compel mandamus to performance jected challenge this Francis certified any duty imposed by law connection a candidate.10 In a holding with the of an election.12 Monday, January County On Travis action, this mandamus Court reviews Judge District John Dietz reversed that trial court’s actions determine whether injunction ruling, signing temporary it A clearly abused its discretion.13 trial Party ordered “decerti- court what has no discretion to determine fy” enjoined the law is.14 him as a listing January candidate. On *5 interlocutory Francis filed an appeal, II day, the next Francis also filed an emer- disagreement the ma- There is no about gency petition for writ of mandamus in the terial facts. appeals. January of court On the court First, Fran- establishes record appeals petition of Francis’s denied complied cis’s day,
writ of mandamus. That same
Fran-
statutory require-
all
all
respects with
this emergency petition
cis filed
for writ of
ments,
225-
except
pages
that 27
of his
mаndamus,
this Court to
asking
order
page
requirement
lacked one
—the
injunc-
court to
its temporary
trial
vacate
designation
of a
number.
tion,
Republican Party
and to order the
Second,
put
name on
tes-
pri-
appointee
Chair
the State Chair’s
mary
interlocutory
tified
appeal
ballot. The
of
that she reviewed Francis’s
but
omis-
temporary injunction
pending
remains
failed to discover the occasional
Significantly,
in the court of
sion of “Place 8.”
there
appeals.
S.W.3d 201,
Comm’n,
ral
10. See id.
172.028.
Res. Conservation
85
(Tex.2002) (holding
207
"mandamus is
restraining
remedy
Dietz,
available to
Republican Party
v.
11. See
Texas
of
Rule
time limita
order that violates
680's
(Tex. 1997) (party
S.W.2d 86
chal
entitled to
tions”).
lenge
temporary injunction by
trial court's
Court);
Supreme
Bay
mandamus in
Sears v.
Sears,
273.061;
oud,
(1990)
CODE
(Supreme
TEX. ELEC.
trial any court concluded that omission explicitly says happens never what Code for a erroneously approves when a chair state rendered all on that inval- page containing signatures, invalid but id, that such errors could not be cured discovers the error later. As with other if approved even the State Chair had statutes, consequence noncompli- “the petitions, and that Francis could not be necessarily punishment.”16 ance is not certified as a agree candidate. We elections, judicial conclusion, statewide legal the first disagree but candidates are certified for the ballot the others. state chair.17 party’s Section *6 A 172.028(c)provides that a candidate’s name agree “may not be certified” chair if party We of omission any statutorily has filed for more than one required information on a candidate office,18 withdraws, dies, if renders on that or a candidate invalid.15 ineligible.”19 Section 172.027 of the Election or is “declared But the Code that a candidate must be de- says Code that a says candidate’s number never appear top “must at the of each of page ineligible petition signatures a clared when 141.063(a)(4) petition.” Section says contrary, party that a are invalid. To the while signature reject on a petition,20 is invalid unless chairs should such a if it 321, (Tex.1964) strictly mandatory (disqualifying 15.We have enforced statu S.W.2d 324 tory legal political candidacy candidate who listed his address as one for in See, Howell, precinct); Burroughs past. outside the relevant v. e.g., Wallace v. 707 704, 570, (Tex. Lyles, 1986) 142 Tex. 181 S.W.2d 573 (disqualifying (1944). judi candidate who filed for two positions cial and conditioned withdrawal Hash, (Tex. other); 16. Hines v. 843 S.W.2d qualification from one on for the 1993). Shaner, (Tex. Painter v. 1984) (noting "statutory mandates” should be 172.028(a). Walker, § construed”); 17. TEX. ELEC. CODE "strictly Brown v. (Tex.1964) (disqualifying § regular 18. Id. 141.033. application by candidate who mailed before, applications mail because sent but re after, § ceived 19. Id. 172.057. deadline must be sent via mail); registered Canady certified or v. Demo 141.032(e). County, cratic Executive Comm. Travis Id. erroneously accepted, analysis requires cannot chal- think the it be We same early lenged voting begins.21 years once type of here. Four same abatement in ago, we stated In that the re Gamble says only This is not the stаtute purposes the Election Code done, not something “must” but does (1) issue provisions here were to ensure say happens if This Court what it is not. are properly qualified that candidates statutes,22 as has considered several such (2) provide safety net for their errors: Supreme has the United States Court.23 Hash, we ad- example, Hines v. for indisputably de- section 141.032is While in pre-suit requirement dressed the notice signed to that candidates assure Act, Deceptive Practices the Texas Trade properly qualified to be nominated was added which to the statute candidate elec- party’s general for the (loss the statutory penalty and from which tion, that is not reason for damages) years of treble removed two was This also serves as a provision. section held notice re- pre-suit later.24 We safety net for who file their candidates mandatory, but quirement “clearly was early filing period, applications alone that feature does not determine com- assuring willing to individuals consequences for to failure public mit to service will receive the Instead, it.”25 we stated that stat- when complying party officials assistancе as to a must look penalty, ute is silent we myriad require- and technical As purpose guidance.26 to the statute’s becoming candidate. ments purpose provision DTPA’s notice duty to the purpose There would be no “discourage litigation and encour- was notify the candidate of prospective settlements,”27 was age or if the her by tossing noncomplying con- served opportunity intent was not allow an court, by abating out of sumers but defects, if the particularly those cure negotiations to suit to allow settlement occur.28 defects can be corrected before 141.034(a). time); Hosp. Presbyterian Schepps scribed Dallas, (Tex.1983) *7 e.g., 22. Hubenak Gas Trans See v: San Jacinto (determining purpose manda Co., 172, (Tex.2004) 141 184 mission S.W.3d by tory requirement served notice was better condemning (determining consequences of ne abating cause of allow intended action to authority’s negotiate price as failure to land terminating plaintiff's gotiations rather than mandated); County statutorily v. Lubbock rights). substantive Bonds, S.W.3d Trammel’s Lubbock Bail 80 580, (Tex.2002) (determining that conse 584 County, 476 U.S. v. 23. See Brock Pierce following quences mandatory procedure is 259-62, 248 90 L.Ed.2d S.Ct. followed); procedure Hel abatement until is (1986). Wilkins, v. S.W.3d ena Chem. Co. (Tex.2001) ("When a silent about the statute is Hines, 843 at 466-67. 24. See consequences noncompliance, we look to proper purpose the statute’s to determine Id. at 467. 25. Albertson’s, consequences.”) (quoting Inc. v. Sinclair, (Tex.1999) and 26. Id. at 468. determining consequence submit of failure to statutory period); claim to arbitration within Homes, (quoting at 468 Walter Inc. Id. Jim $435,000, (Tex. v. State Valencia, (Tex.1985)). 1992) curiam) (per (holding dismissal is mandatory duty consequence not a of State’s pre: hearing within the at 469. to hold forfeiture party happens If a chair to cure defects. deadline.29 in one but over- discover a defect Gamble, noted in it is hard to see As we another, an ele- looks the same defect why requires the Election Code this re- pri- is introduced into the ment of chance procedure view unless the is to procedure review itself mary process. The disqualifying avoid candidates for clerical not in- Legislature indicates that the did Similarly, why errors. it is hard to see to create such a whimsical form tend review “as soon as requires practi- statute democracy. given and that notice of cable” defects be Gamble, As we noted in candidates must “immediately” Legislature unless the in- filing a responsibility bear ultimate give early tended to candidates who file petition.30 But the proper application opportunity remedy to defects while there par- expressly requires Election Code statutory purposes is still time. These are myri- candidates “the ty chairs assist with party defeated if a chair fails conduct requirements” governing ad and technical review, any fails to appar- discover defects party duty those documents.31 The chair’s documents, ent on the face of the or is not conditioned on whether candidates notify fails to candidates of defects ob- theirs; contrary, served while there is still time to correct duty only party chair’s makes a difference them. A limited opportunity to cure would when candidate’s efforts have fallen remedy such omissions. simply short. These incon- procedures Abatement and cure would also advance holding Legislature sistent with that the purposes by of the Election Code en- punish intended to candidates clerical couraging candidates to use it as a tool by excluding errors them from the ballot. trap. rather than a Candidates would be Accordingly, as we did encouraged early they file so that can DTPA, challenge we hold when review, benefit from the state chair’s party on facial chair made based they ensure that will not be excluded for approved they overlooked and when could technicalities. Opponents longer would no cured, have been the trial court must abate be able win elections default challenge and allow the candidate that pointing only out defects after it is too late opportunity. Candidates should have the to correct them. Nor would abatement re opportunity proper same cure as “penalize” those who strive to file perfect deadline would have view before papers; they will share the same benefits pur allowed them.32 Consistent with the short, they fall only when and at worst will Gamble, poses Election Code and required to win election on their own facial defects should exclude a candidate merits. The result system should be a a proper from the ballot when review which there are technical fewer errors and by chair would have led to the *8 by fewer elections decided default —a re- same result. truly sult consistent with Code. C Further, it would be inconsistent with reasons, if purposes many Code some candi- For an abatement and only complies not best get opportunity opportunity dates but not others to to cure course, 29. 318. 32.Of such relief is constrained itself, generally election schedule as courts Id. at 317-18. delay should not an election. See id. at 318. 31. Id.
542 Code, they must be during the window which Election purposes with the circumstances, not they do one filed. such remedy, fairest and the but is also the First, their own the added burden harm. need likely most to cause the least (when looking mistakes for the mi- minor very heart of to the ballot lies at the access others) destroy a might nor mistakes republic. “The Constitu- a constitutional Moreover, by public career. electorate candidate’s requires that access to the tion ”33 on facial allowing party chairs to focus real, As we ‘merely not theoretical.’ be before the and call for correction years, in recent many have noted times deadline, required party chair is to hold right that restriсt provisions defects render guess which strictly against construed neither office must be invalid, might a court do nor Construing the Election what ineligibility.34 challenged. they if are about them opportunity silence in favor of an Code’s prob- potential constitutional cure avoids inter- Fourth, remedy advances the this if access to might implicated be lems elections are in whose name ests of those unnecessarily restricted. the ballot was public inter- people. conducted'—the public offices are Second, is served when pun- that the est best abatement ensures elections, not vigorous fair and decided the crime. ishment fits When Begin- leading to default. technicalities required all the informa- does not contain lawsuits and ning every cycle election tion, for voter confu- potential there is a candidates about efforts to toss publicity not certainly But sion or fraud. sends an unfortunate off and the ballot case; sometimes voters know always the more civ- message that elections are about if a they doing even precisely what duty. than civic ic entertainment might error have misled someone clerical seрa- be cured Requiring that errors else. several Finally, emphasize we can cases—candidates who rates the two First, holding. it today’s limitations on misleading voters get on the ballot without appar that are only concerns facial defects cure, must while those who will be able a candidate’s the four corners of ent from (cid:127) not. Punish- to do so will mislead voters fraud, or forgery, not filings; it does reach a caste every minor as if it were ing error discoverable other non-accidental defects only punishes or fraud not of confusion investigation. Sec independent only by much, frus- too but also some candidates ond, early filings it concerns many who the intentions of voters trates after the state time for corrections allow petitions. their willingly signed review; time will be no additional chair’s at the last chair who file Third, duty of a available for candidates places it completed not minute so that review cannot Party chairs are proper in its role. Third, it does deadline. they nor are re- lawyers, required to be or candidates very political parties allow They have a perfect. quired to be deadlines; it allows candi- papers ignore thousands of limited time to review (Tex. White, Meyer, v. U.S. kins v. 33. Am. Texas S.W.2d 248, (1974). 1992); Bdyoud, 39 L.Ed.2d Sears v. 94 S.Ct. (Tex.1990); Meyer, v. Brown -, Carlisle, - S.W.3d -, E.g., In re Baum, (Tex.1990); Hall - (Tex.2006) (per Sup.Ct. 49 Tex. J. *9 dismissed, 699, (Tex. 1970), 397 appeal 702 489, curiam); Hodges, 92 S.W.3d State v. (1970); 79 S.Ct. 25 L.Ed.2d U.S. (Tex.2002); Taylor, Davis v. 494-95 (Tex. Potts, v. 377 S.W.2d Willis (Tex.1996); v. Wentworth 1964). (Tex.1992); Daw Meyer, WAINWRIGHT, only joined by dates the time that the Election Code Justice Fourth, designed give was it JOHNSON, them. Justice O’NEILL and Justice only filings concerns defective that have dissenting. erroneously approved; been it not does Today period, that the Court creates a change says party what the Election Code statutory filing can beyond extend reject. Finally, chairs should and must it deadline, can cure during which candidates does not absolve candidates of the need for disqualifying petitions defects in their diligence responsibility filings; in their public to run for office. The certified
party only notify chairs must them of de- Legislature period did not enact a cure fects, not their for do work them. the Texas Election Because the Code. does,
Ill I respectfully dissent. Applying these to the standards opinion dramatically The Court’s here, undisputed facts we hold changes law. Two differ- fundamental trial court erred in conсluding that separate ences this dissent from the Election Code mandated the First, opinion. Legis- Court’s should the injunction. While Francis’s con peri- lature or the courts construct a cure signatures, tained invalid proved he od in a statute that includes none? replaced he could have them within it Legislature’s province, believe is the es- hours. Francis did not do so before the pecially legislative when the decision deadline because the period part to include a of an cure was (like himself) inadvertently Chair he over governing intricate scheme above, looked them. For the reasons we process electing public candidates to hold that the pro Election Code does not opinion office. The Court’s extends vide that he must be excluded from the any election certification for can- deadline penalty. ballot as a didate who seeks cure When a candidate has been denied a disruption legislated and risks error, on the ballot due to official we public scheme for the election of officials. generally granted have mandamus relief.35 Second, the Election Code makеs the can- Accordingly, conditionally we grant responsible timely filing prop- didate writ of mandamus and direct the trial er to be certified court to vacate its order that Francis be today, opin- as a our candidate. Before excluded from Republican Party the 2006 emphasized obligation ions that this ulti- ballot as candidate for the Texas mately rests on the candidate. Now the Appeals, Court of Criminal Place 8. The not, may, compli- candidate but need file a trial court is directed to underly- abate the application by ant deadline be- ing proceeding to allow Francis to cure the if party defect. cause chair does not catch the We confident that the trial promptly court will comply, error, and our writ it right the candidate has a to cure only if it will issue does not. only does this after the deadline. Not chair’s role in the elec- elevate Justice WAINWRIGHT filed a beyond Legislature’s tion in- process dissenting opinion, which Justice tent, responsibility it undercuts the joined. O’NEILL and Justice JOHNSON timely candidate to ensure that he or she judicial files a office that com- Justice did not participate WILLETT the decision. рlies with the law. (Tex. 1996). Taylor,
35. See Davis *10 copies of Fran- District and made precedents Appeals The Election Code and our petition. and On the same construing application cis’s for establish a framework Floerke, Republican the Texas day, Sarah in a man- statutory requirements relevant Administrator, Fran- Party Elections told language and comports ner that with its and had application cis that his of the Election Code. furthers the By the end approved. reviewed and our been apply I would follow the statute day, Francis was listed as a of the business , to resolve this case. precedents of for Place 8 of the Court Crim- candidate Party’s I. Factual and Procedural Republican inal on the Appeals Background to The deadline for candidates website. was applications petitions file their 29, 2005, Judge Robert On December Monday, January p.m., 6:00 including a an application, Francis filed weekend, met his Republican on the Keel place for a Over At attorney as a candi- to the defects. 5:30 Party general primary ballot discuss attorney of deliv- January on the Texas' Court on Keel’s p.m. date for Place 8 Rеpublican Party re- The Election Code a letter to Appeals. Criminal ered Benkiser, chair, challenging the certi- positions for on the Tina quires candidates include, gen- on the Appeals placement fication of Francis’s Court of Criminal omission place for a on the ballot based on the application primary of their eral part ballot, signa- fifty valid number on some petition. in each in Francis’s After registered pages of voters ture district, Friday, January p.m. for a total of 5:00 on appeals court of of Keel that Francis would Party Francis’s consisted official told signatures. despite Keel’s including seventeen as a candidate signature pages, be certified objection. containing signature at least one pages registered from the Twelfth Court voter 7, 2006, Saturday, January Keel re- On those seventeen Appeals District. Of temporary restraining order quested a signatures, contained pages, which certifying Francis Benkiser from prevent pages did not reference twelve The trial court denied the as a candidate. Appeals number on the Court Criminal Keel’s request and set a candidate. sought to be for which injunction hearing for a on temporary on twenty-seven signatures appeared Only Francis inter- Monday, January designation. “Place 8” pages with the Keel, Benk- filed a cross claim. vened and separate places Three iser, Monday’s appeared and Francis on the ballot this Appeals are Criminal testimo- the trial court heard hearing, and cycle. election con- Floerke. At the ny from Francis and trial court en- hearing, Keel, clusion of Terry seeking Representative enjoined injunction tered a Party primary ballot Republican a can- certifying Francis as from Benkiser position, the same filed decertify didate, ordered Benkiser 2005. On on December already he was certi- Francis to the extent 30, 2005, Friday, Keel reviewed December fied, enjoined placing Benkiser from Judge and incumbent Charles Francis’s Republican name on the petitions at the applications and Holcomb’s court day the The next primary ballot. Party’s office. Keel discovered testimony argument and additional heard place number on omission of the Francis, Floerke, attorney and Keel’s from the Twelfth Cоurt twelve *11 ju denying grants Francis’s motion to recon- Texas Election Code Court of temporary injunction. sider the The trial risdiction to issue a writ mandamus 3, im February compel performance any duty court set the case for trial on of posed by in connection the hold law Sears, ing of an election. 11, January 2006, On Francis filed a appeal notice of in trial in court and relief, appeals, the court of along with an emer- To be entitled to mandamus gency stay motion to the trial court’s tem- relator the trial court must show injunction. 12, 2006, porary January clearly On and that the abused its discretion emergency petition adequate remedy by appeal. Francis also filed an relator has no Am., for writ of ap- mandamus in the court of In re Prudential Ins. Co. (Tex.2004) peals. January On appeals (citing the court of S.W.3d 135-36 Packer, stay denied Francis’s motion to and his Walker v. (Tex.1992)).
petition for writ of mandamus. A On trial court’s failure to ana- day, lyze same Francis filed this petition apply correctly for or the law constitutes mandamus, Kuntz, writ of asking this Court to In abuse of discretion. re (Tex.2003). 179,181 order the trial tempo- court to vacate its S.W.3d rary injunction. supplemental In his peti- Recovery Right III. Probable Court,
tion filed with this Francis also requests the Court Republi- to order the argues the trial court abused its can Party chair to take all steps necessary by concluding discretion that Keel estab- put Francis’s name on probable right recovery. lished a In his Party primary ballot. The appeal of the original petition, application temporary injunction remains pending order, restraining for tem- appeals. Today, court of this Court porary injunction, Keel asked trial grants Francis’s for writ of man- enjoin Republican Party court to officials damus. including from Francis’s name on the Re- publican primary election ballot be-
II. Jurisdiction and Standard cause Francis failed to with sec- of Review 172.021(g) tions 172.027 and of the Texas Typically, jurisdiction over an order Specifically, alleged Election Code. Keel granting or denying temporary injunc required that Francis failed to collect the tion is final in the appeals. court of TEX. signatures (fifty) number of valid from 22.225(b)(4); GOV’T CODE registered Butnaru v. voters the Twelfth Court of Co., (Tex. Ford Motor Appeals 122 signatures District. Of the 2002). However, if a case demonstrates peti- the Twelfth District tion, the need for an expeditious decision be 95 signatures pages were on that did expedited appeal cause even an specify could not not that Francis running was completed before the issue Appeals. became Place 8 of the Court of Criminal Instead, inadequate, moot or was otherwise this those noted that Fran- may temporary injunc review the running cis was for the Court of Criminal petition by tion on a writ of Appeals. mandamus. Francis contends that the omis- Dietz, Republican Party See Tex. v. sion of the number does not invali- (Tex.1997); 93-94 Sears v. date the the omission because (Tex. Bayoud, 786 S.W.2d 249-50 does not violate the Code’s 1990). addition, pro- section 273.061 of that this construction the statute “just may
duces a result” in relief and reasonable be available cure *12 accordance with the Code application Construction candidate’s and even 1.003(a); § Act. TEX. CODE ELEC. those result the candi when .311.021(3). § TEX. GOV’TCODE date’s own mistakes. at 318. Al Id. (cid:127) that though presume Legislature the we, statute, primary a the construing When just a and result reasonable intends objective is effect to give to ascertain and Election enacting requirements the the Legislaturе’s Dep’t the intent. Tex. Code, 311.021(3); § TEX. CODE GOV’T Transp. Valley, v. 146 City Sunset Bell, (Tex.2002), 784, In re 785 91 S.W.3d (Tex.2004) (citing S.W.3d 642 McIn recognized the election the Court has that (Tex. Ramirez, tyre v. 109 S.W.3d 745 product is the of careful itself, schedule 2003)). intent, In discerning courts “ by planning Legislature, extending the and begin with and mean ‘plain the common ” statutory “extraordinary a is an deadline ing City words.’ Sun statute’s departure lightly.” to be invoked Valley, (quoting at set S.W.3d 642 Gamble, at The re 318.1 follow S.W.3d 745). if McIntyre, at the 109 S.W.3d Even legis ing provisions define, the part face, unambiguous on statute its courts to lative relevant this case. scheme the can consider other factors determine intent, object Legislature’s the including place a the To be entitled to on obtained, the sought be circumstances election for a seat on the Court of ballot enactment, legislative of the statute’s the 172.021(g) of Criminal subsection Appeals, history, the law or former statuto common a requires Code candi- the Texas Election ,of ry a provisions, consequences and complies to file with petition date a n TEX. particular construction. GOV’T 172.021(b). candidate subsection If the 311.023; § v. CODE Helena Chem. Co. by filing chooses to fee established pay Wilkins, (Tex.2001); 47 S.W.3d 172.024, apрlication section candidate’s City Valley, see also Sunset petition a accompanied must be give to all at 642. Courts should full effect fifty from each court least valid Episcopal of a statute’s terms. St. Luke’s appeals Id.2 Subsection district. (Tex. Hosp. Agbor, v. 172.021(b) require- incorporates the also 1997). 141.062, and ments from 141.031 sections general requirements Statutory concerning provide can which requirements the. place a mandatory petition for didacy for office for an and elective election, into the strictly general a and are to be enforced. Wallace ballot of Howell, (Tex.1986). peti- requirements for an course, primary ballot. Id. tion for a on the And of the candidate bears 172.021(b). § 141.062 states responsibility appli ultimate his or her Section (1) valid, timely In re Gam to be must cation office. (2) (Tex.2002). ble, filed, number of proper 317-18 contain (3) Nevertheless, signatures, any suggest valid this has also circumstances, prescribed equitable applicable requirements other ed that limited fact, Legislature period is finalized 1. In limited the before 141.067(g). signa- petition filing deadline. Id. § signer within can withdraw a which day ture to no than the seventh later pay TEX. CODE deadline. ELEC. If candidate chooses not 5,000 fee, 141.067(c)(2). sig- .§ statute allows for valid The then must contain period, ensuring 172.025. three-day natures. TEX.ELEC. CODE cure injunction so he can be Code. Section 141.063 details the court’s specifications petition signature, ballot, of a valid or in placed general primary imports alternative, of section Par- order 141.063(a)(5). 172.027. Section him ty on the ballot. 172.027 appli- contains one of these other competing Election often raise contests requirements:
cable candidate eli- interests: courts must favor following appear statement must ballot, strictly gibility and access to the *13 top at the each page petition of of a Legislature’s intent as ex- enforce the part be filed under Section 172.021 of [as statute, in a pressed plain words of place for a general on the attempt principles to honor both to reach a primary election “I that ballot]: know just required by and reasonable result as purpose this is to entitle the Code Construction Act. See Davis v. (insert name) candidate’s to have his or (Tex.1996). Taylor, 581, 583 placed her name on the ballot for the Mandаtory requirements in the Election (insert title, including office of office consequences Code can work harsh that any place number distinguish- or other may applicants being placed result in number) (insert ing for the political ballot; yet plain language of the name) party’s primary election. I un- Code, frequently Election couched in derstand that signing this I “shall,” terms of “must” and instructs that ineligible become vote a primary candidates include all of the listed ele- participate
. election or in a convention of applications petitions. ments their party, another including a party not See, 141.031, e.g., §§ TEX. ELEC. CODE holding election, a primary during the 141.062, 172.021, 172.027. Presented voting year in which this elec- among principles, the tension these tion is held.” the Legislative would focus on intent and parties agree pages twelve strictly enforcing determine whether not Francis’s do not indicate for which specific at requirement issue would place on the Court of Appeals Criminal impair the of the statute. This is running. Francis is plain Because the lan- consistent with the in In approach Court’s guage of the requires statute the “office (Tex.2002). re Bell. 91 In that S.W.3d 784 title, including any рlace number or other case, the Court concluded the omission of a distinguishing appear number” to at the signer’s city a petition does not invali- top page of each of the petition, signa- if signature signer provides date the tures on those do not meet enough information to allow verification of validity sections signer’s voting eligibility. Id. at 787. 172.021(b), 141.031, and 172.027. Because required sig- The statute inclusion of the ninety-five of the 122 signatures gathered residence; however, city ner’s inclusion Appeals the Twelfth Court of District zip voting code and state allowed number, pages lacking place are on eligibility to be verified without identifica- fifty falls short of the signer’s city tion of the of residence. required signatures from each district. anal- at 788. The Court reasoned this 172.021(g). § See id. The Court concedes ysis principal pur- furthered one However, this point. argues prevent- poses behind Election equities balance his favor to either Code— “just ing producing election fraud —while signa- extend the deadline to collect valid (citing or to and reasonable result.” Id. noncompliance. tures excuse his He 311.021(3)); requests the Court to vacate the trial TEX. GOV’T CODE see sign рetition supporting AF- wanted also SENATE COMM. ON STATE ANALYSIS, FAIRS, place. the same BILL Tex. H.B. different candidate for (1997); Leg., misapply provi- 75th HOUSE COMM. R.S. would Such result ELECTIONS, ANALYSIS, BILL ON shifting of the Election Code sions (1997). Leg., Tex. H.B. 75th R.S. with the Code from the burden Gamble, candidate to the voter. See In re a candi- Election fraud could occur when (candidate duty to at 318 has place without the date obtains by filing dead- compliant application file then, an- designation perceiving after Walker, line); Brown v. difficult, place other race as less add (candidate (Tex.1964) (orig.proceeding) signed petition to the at the elev- number fraud, knowledge Elec- of Election Code charged enth hour. To avoid such requires a candidate to include tion Code provisions). page number on each' concerning desig- confusion Voter TEX. ELEC. CODE 172.027. petition.3 candidates who penalizing nation also risks *14 fraud, than but
Less nefarious
election
all of the
complied with
have
objective
the
of avoid-
important,
no less
is
The likelihood
voters
requirements.
Omitting
place
the
ing voter confusion.
than one candi-
signing petitions
more
page
the
designation
petition
number
on
when a
in
same race is increased
date
the
can-
signing
could mislead a voter into
One
num-
place
to state the
neglects
candidate
supporting
in a race while
petition
didate’s
subsequent signa-
designation.
ber
Since
same race. Be-
another candidate
the
under
subsection
tures
invalid
prohibits a voter
cause the Election Code
141.066(c),
complied with
a candidate who
than one
signing
petition
the
of more
including des-
statutory prerequisites,
for the same office in the same
candidate
peti-
number on the
ignation
place
election,
signing
a misinformed voter
signatures assumed to
page, could lose
tion
(who
for a candidate
omits the
petition
signatures
on earlier voter
be valid based
would
place
petition)
number on the
of a candidate who
petition page
signing
later
prohibited from
designation
put
place
failed to
number
support.
of the candidate she. intended to
number of
petition.
significant
If a
on his
141.066(a).
§
id.
To ensure
vot-
See
not discovered
are lost and
signatures
informed,
Legislature has even
ers are
time,
compli-
otherwise
the candidate
prohibition be stated at the
required this
enough signatures
have
аnce could fail to
petition.
top
page
of each
placed
her
to be
on
141.066(b).
sign
§
If a voter does in fact
confu-
repercussion of voter
ballot. This
ope
than
candidate for
of more
burden of
is serious and shifts the
sion
office,
the Code
the same
invalidates
to the candidate
more
acquiring
signature
signatures.
or
See
subsequent
requirement
full'compliance
141.066(c).
Although chapter
§
id.
who omitted
rather than the candidate
of a
provide
potential
does
withdrawal
Omitting
place
designations.
plaée
process
is
petition signature,
previous
of the stat-
frustrates the
number
See id.
141.067.
complex.
somewhat
ute.
initially
Thus a voter who was
confused
Francis’s omission
terms
desig-
omission of the
a candidate’s
seeks a
of the office he
place number
page would bear the
nation on the
mistake[ ].”
“minor
if he
“technical” or
withdrawing
signature
burden of
allega-
actual fraud.
tions of
3. We note that this case involves no
an
Legislature
agrees,
op-
at 544. But the
made
the Court
he is entitled to
to cure the fatal defects even
portunity
policy
petition signa-
determination that
passed.
deadline
But the
though
specific posi-
tories should be aware of the
provides
remedy
Election
no
or con-
Code
policy
tion a candidate seeks for
reasons
sequence
Party
for the
chair’s failure
majority acknowledges.
that even the
timely
application.
properly
review
would not call an omission that creates
141.032(d)
Instead,
subsection
allows
potential
“the
for voter confusion or
Party chair to reverse a certification deci-
fraud,”
S,W.3d
a “minor” de-
way up
early voting
sion all the
to the time
Legislature
fect. The
has determined the
begins.
TEX.
ELEC.
CODE
petition,
substantive
for a
141.032(d). Thus,
statute,
under the
if a
second-guess
and it is not our
objectionable
candidate fails to catch
er-
determination. There
nothing
“whimsi-
petition prior
rors in his
to the
dead-
cal”
requiring
supply
about
candidates to
line,
challenge
potential
he risks a
prevent
information intended to
election
reversal of the
chair’s initial certifi-
fraud and voter confusion
the statu-
within
day
early
cation as late
vot-
But,
tory deadline.
as I read the Court’s
141.034(a).
ing begins.
§Id.
opinion, district courts and election offi-
potential primary
A
election candidate
cials are authorized to allow candidates to
(and
timely
must submit
correct
that “a
reasonable review
cases)
proper
in some
to the
au-
should have discovered”
after the fil-
even
*15
thority,
Party,
place
here the
to obtain a
ing deadline.
Surely
In this that he and the on it Francis admits filed Court’s reliance Gamble, in- noneompliant petition by failing misplaced. to we concluded that duty under clude number on twelve election officials owe a subsec- 141.032(e) petition, Court of tion Election Code the Twelfth' to Appeals parties agree notify appli- District. also candidates of in their Republican Party implied oppor- officials reviewed cations and a concomitant tunity but did not detect the defect. to cure them. Id. at 318. The in- deadline, Thirty required minutes before the formation on an form the Party essentially provides Keel notified of the defect in election officials with petition. realizing the de- the of- necessary After information to determine required in the the candi- Party sought fect was fice candidate and office, reject notify eligibility date’s TEX. 141.031(1), (4)(A)-(J), rejection. §§ of the reason for the See id. ELEC. CODE 141.032(e). Instead, January Friday, on and assures that is aware of the candidate duty uphold that it fundamental advised Keel intended law certify nepotism. Francis in Keel’s chal- spite prohibitiоn and the (L). lenge. 141:031(4)(K), §§ But the omis- sion of information from a Francis contends that de this Court’s Legislature should has determined “safety scription party review a net” conveyed signatories inter- implicates party in In essentially re Gamble made beyond those ests of an guarantor application’s compliance. noted,.the require- As I candidate. have opin See 318. The Court’s that a ment candidate’s inform ion, unfortunately, Francis’s con affirms *16 specific voters office the candidate Gamble, tention. In filed an candidate prevents signatories unwitting- from seeks listing application position sought as ly signing an- precluding themselves from Court,” of the “190th judge Civil Dist. but pre- office and other the same that petitions accompanied applica engaging in cludes candidates from the position tion identified as “District by waiting until the gamesmanship last Id. at Judge, 270th Judicial District.” minute to decide run. for which temporary restraining obtained Gamble Those broader interests differentiate this putting that had the him order effect from Gamble. case ballot, back on the and then nonsuited his nonsuit, deciding validity ease. Id. at 316. After the Before the case on the his order, in оpponent temporary restraining obtained mandamus relief a of the howev- er, ap at the court of the Court summarized some separate proceeding in case. peals, which ordered Gamble removed duties issue an election re Gamble, the ballot. held that at 318. The Court Id. This Court ulti- appeals emphasized the court of did not abuse its a candidate bears Party responsibility filing compliant in ordering discretion remove mate from the and before the application Gamble list of candidates because deadline, restraining trial court’s or but also noted that “mistakes temporary, application the list an absolute bar to put der that Gamble back-on had an Recognizing relief.” that the legal equitable effect after nonsuited the Id. no Gamble Party’s establishing by January in 2 a applications petitions review and 141.032aids candidates, safety pool “serves as a net for candidates who of certified all of whom applications early filing may by file their challenged or decertified period,” early the Court until voting. observed when the time for fashioning equitable remedy Though in an I sympathetic elеc- am with the Court’s tion case a court must applica- attempt balance to reach result that favors the candidates, tion eligibility and of the Election Code’s this at- believe requirements. Id. The tempt disruptive pro- Court warned is too to the election extraordinary designed by Legislature. relief that would function to cess Without extend deadlines is “not to statutory language contrary, be invoked to the Fran- lightly.” rely Id. cis Party’s was not entitled to any against review insurance further Only justices four Judge concluded that challenges to application petition. allegations Gamble’s that “the defect one, is a appear- clerical Hands Y. Unclean ing on its face that Party officials should argues that the trial court erred have noticed and called to his attention in granting equitable remedy of a tem well before expired” deadline porary injunction because Keel did not provided a equitable basis for relief. come to the trial court clean hands. justices Four others concluded that A temporary injunction an equitable plain language of the Election Code cre- remedy subject equitable prinсiples like ates an absolute for filing deadline a com- the clean doctrine. hands See In re Gam pliant application and that ble, 317; Austin, Truly 71 S.W.3d at giving a trial court equitable power to (Tex.1988). disregard this absolute “destroys deadline legislative intent for a fair predict- The clean hands requires doctrine process.” (Baker, able election Id. at 326 equity, equity. one who seeks does Equi J., concurring). I would not alter dead- table relief is not warranted when the lines set the Legislature to allow a plaintiff engaged has inequi unlawful or candidate his own mistake —filed regard table conduct with to the issue who— a noncompliant application Advocates, dispute. Right to Inc. v. Life correct his after the deadline Clinic, Aaron Women’s because he Party’s relied on the review. (Tex.App. 571-72 [14th Dist.] — Houston denied); writ Marquardt, Grohn v. Legislature placed a ministerial *17 851, 657 (Tex,App.—San 855 ton An duty party on officials to applica- review n.r.e.) (cited 1983, io writ ref 'd in Davis v. tions for compliance reject and to those (Tex. Grammer, 766, 750 S.W.2d 768 applications However, in compliance. not 1988)); Matthews, see also Omohundro v. I do Legislature not believe the intendеd (1960). 401, 161 Tex. 410 Party’s the review under section 141.032to Whether a has to come court with carefully undermine its crafted scheme of clean hands is a determination left to the Rather, deadlines. section 141.032 exists Grohn, discretion of the trial court. 657 goal to further orderly the of an election S.W.2d at 855. process in timely results elections. duty The created argues section 141.032 is inequit- Francis that Keel acted public, owed to the ably waiting not to an individual until thirty minutes before candidate whose fails to the notify deadline to Francis and requirements. Republican Party Section the twelve of Proper Injunction a number. VI. Francis’s lacked earlier, If Keel had acted Francis claims that, also the trial court Francis claims he would have had time to cure an im by granting abused its discretion petition. responds in his Keel his First, injunction. argues proper not because he inequitable conduct was injunction improper that the is because the duty notify anyone potential had no of effectively granted trial court Keel all of errors, any specific much less at time. on requested without a trial relief Keel uncovered the defect- four “grant may A trial not a merits. court days January deadline. before injunction, of the effect which attorney, immediately He notified his who object accomplish would be until after did not review Francis’s To do so to determine suit. would be January holiday Monday, weekend on Foundries, rights without trial.” Tex. Party notified the of the defect at Keel Foundry Work Inc. v. Int’l Moulders & January I conclude p.m. 5:30 on 2. would Union, ers’ Tex. trial court its discre-
that the did not abuse (1952). The trial court ordered that actions determining tion in that Keel’s did Party officers were “TEMPORARILY equitable him prevent seeking not placing ENJOINED from name relief. Repub on the ballot for March until lican election” . provides Texas Election The Code Friday, heard on merits case was ballot, for on “[a]n argues that February 2006. Francis be pub- including accompanying petition, an date, now and trial he will lose tween filing.” immediately on its lic information right his review of trial effective § 141.035. Re- TEX. ELEC. See CODE decision, because the presumably court’s is neither an viewing public these records be candidate lists the ballots will final Although inequitable activity. nor illegal disagree. printed. and the ized ballots is com- reviewing opponent’s petition an granted In Dаvis v. this Court Taylor, candidates, among it practice political mon who, relief candidate mandamus to a statutorily practice. required is not own, through no fault was omitted timing objection does not The Keel’s ballot, grant though from the even timing inequitable. his actions render stability of the elec endangered the relief compli- challenge application’s (Tex. to an 581, tion schedule. 930 S.W.2d the Election Hannah, ance with Code 1996). Likewise, LaRouche ap- section 141.034: is limited fact that the noted that “[t]he the Court may compliance challenged plication not does ex begun ballots has printing of until applicable requirements appear right LaRouche’s tinguish (Tex. early voting day beginning those ballots.” appearance. 1992). The statute does by personal Understandably, courts hesi challenges within a require to be made schedule absent tant to disturb election *18 discovery. injustice, after Because the certain time we possibility grave duty inspect no imposed law on Keel on rare occasions have done so nor to disclose to the ballots policy favor the of access Id.; in- during he his Painter Shan аny public discovered interest. (Tex.1984). er, such not as 667 S.W:2d spection, actions were upon relief grant- availability of the trial court from review prevent would n showing after ballots have proper equitable relief. ing —eve printed been that Francis’s from name on the placing Chair —demonstrates ballot, meaningful general access to review is not elimi dissent.
nated the trial grant court’s injunction. The trial court did effectively grant Keel all of the re
quested injunction in a temporary relief
without a trial on the merits. injunction’s
“A temporary purpose is to
preserve the quo litigation’s status In re the Honorable Charles
subject matter pending a trial on the mer- HOLCOMB, Relator. Co., its.” Butnaru v. Ford Motor (Tex.2002). The trial No. 06-0042. court’s order uncertainty reflects the Supreme Court of Texas. some facts in the record regarding wheth- certified, er actually Francis was frustrat- Argued Jan. ing the trial ability court’s to determine Decided Jan. quo regarding status certification.
The trial enjoined Party court officials certifying ordering Francis while also
those officials to take “whatever actions necessary to decertify Francis to the conditionally
extent he was previ- certified
ously.” At argument oral before this
Court, parties to disagree continued certified,
to whether Francis was condi- certified,
tionally or not certified. Howev-
er, the trial court’s order contained third
part enjoined Party officials from
placing Francis’s name on the ballot for March Party primary. dispute
There is no that at the time of the
injunction, the ballots yet pre- were not Therefore,
pared. regard to the in- ballot,
clusion of Francis on the actual
trial court’s order did not disturb the sta- quo.
tus
VII. Conclusion case,
In this not enforcing require- place designation
ment that the be includ-
ed on at the time sign voters it
would contravene express requirements impair the purpose of the Election
Code. Because I would conclude that the
trial court did not abuse its discretion in
enjoining the Republican Party State