*1 playground and its appurtenances. Flye v. Waco,
City supra. TRIANTAPHYLLIS, In re Consequently, the Tasso live pleading before us allege fails to facts Relator. illustrating a upon cause of action which No. 14-02-00065-CV. City of Lubbock could be found liable private And, it were a person. because Texas, Appeals Court of allege action, does not such a cause of (14th Dist.). Houston the Rules fell short of stepping through Jan.
the window of opportunity created Tort Claims Act. sum, the doctrine of sovereign immu
nity deprives the jurisdiction trial court of bar,
over the choses-in-action at and the
trial court erred in denying City’s mo
tion to subject dismiss want of matter
jurisdiction. Moreover, the error is harm
ful in that the trial may not allow the
Rules to continue prosecution their
suit in jurisdiction. However, absence of Tex.R.App. action,
before we can dismiss the see (stating appel that the 43.2(c)
Pr oc.
late court enter the judgment which entered),
the trial court should have
Rules must be opportunity afforded an
amend them pleadings and allege cause
of action within jurisdic the trial court’s
tion. Bd., Texas Ass’n Bus. v. Air Control
supra. Should the allege Rules fail to to,
such a claim opt then dismissal is Thus,
necessary. we reverse the order of
the trial court denying City of Lub
bock’s motion to dismiss juris for want of
diction and remand the cause for further
proceedings commensurate with opini
on.8 Having City's sustained the having first issue re- lieves us of to address its second. *2 Charlton, Houston, B. for rela-
Michael tor. Maddux, Amy Mi-
Stephen Tipps, G. Houston, for respondents. chael J. Stanley, FOWLER, Panel of Justices consists EDELMAN, and SEYMORE. OPINION FOWLER, McKEE Justice. WANDA relator, original proceeding, In this Tas- the Democratic candi- Triantaphyllis, so for Harris seeks County, District respon- ordering writ of mandamus dents, Woodfill, Jared Chairman County Party, Harris and oth- Republican following take er officials1 Woodfill, Party, Kathy Haigler, County Republican Pri- addition to Collier, Acting mary County Republi- Director the Harris named Madeline Former for Party, County Republican Republican County the Harris can Harris Chairman of Committee, Manes, County Party, Re- Secretary the Harris Executive and Harris Iris (1) judge action: refrain from was for of the 190th refuse cer- and/or Court. tifying placement general on the 2002 primary election ballot name of the 9, 2002, On Gamble filed interest, Gamble,
real Brent as a request a tem- original petition and *3 Judge candidate for the of the (TRO) in the porary restraining order 55th (2) Court; 270th Judge District remove County against District in Court Harris candidates; Gamble’s name the list of Manes, County Republican Iris Harris (3) exclude, remove, and Judge omit Party Haigler. Secretary, and/or (Vernon 1986) Gamble’s name from the ballot. The issue Code we must decide is whether candidate who (allowing person by violation of harmed early, filed a application appropriate injunc- defective but was Election seek relief). not the defect tive not a Triantaphyllis notified of was chair, to the of his equitable right support request had an suit. TRO, Judge Gamble submitted his own application amend his after the dead- affidavit, Haigler and affidavits from his line. in Finding provision the Election consultant, political Lange, and vari- Heidi Code and no case law would allow exhibits, petitions ous that he including relief, such equitable we conditionally containing signatures supporting obtained grant the writ. candidacy his District Judge. 270th Lange prepared This evidence showed that I. BACKGROUND form, inadvertently but she Gamble, Judge The real party, is the wrote “190th Court” after District com- presiding judge of the District Court pleting the of another client 19, in County. 2001, Harris On December who held that Without noticing office. Judge Gamble filed his to have error, signed Judge applica- Gamble placed his name the Republican pri granted tion.2 The district court TRO mary ballot. He stated 9, 2002, January ordering the secretary “Judge, was 190th Civil Dist. County director of Harris Court.” Judge Gamble asserts that it was Republican Party omitting to refrain from his intention to file for reelection to the Judge Gamble’s name as candidate for holds, bench he currently and “District judge of the 270th District Court Judge, 270th Judicial District” is correctly list of candidates submitted identified petitions accompanying by January pursuant to section application. 3, 2002, January On 172.029 of the Election Code. The court deadline, day after Kathy Hai- Judge further ordered that Gamble be al- gler, County Republican Party Harris Pri lowed Judge to correct his mary Director, notified Gamble that Gamble filed a corrected planned she to remove his name from day January after the On TRO issued. party’s as a candidate County Republican Party list the Harris judge candidates, prepared 270th District Court because list which Committee, publican Primary Judge, date for as re- the office of 190th Civil Dist. noted, Court, spondents. Unless otherwise the re- support swear that I will and defend spondents jointly will be referred to as "the of the United Constitution and laws States party chair.” and of the State of Texas.... I further swear foregoing my that the statements included in The oath is sworn. things true are in all and correct.” "I, signed part, Gamble Brent Gam- states ble, Texas, County, being of Harris a candi-
included a candidate Paso Gamble as —El Court, orig. proceeding). the 270th District and delivered it Secretary of State. asserts that this manda- Gamble mus action an impermissible collateral 18, 2002, January On Gamble by the ruling attack on the trial court. filed a district notice nonsuit of his from the Case law Texas action name included in the after his was situation, claim. refutes this In a similar judge list of candidates for of the 270th the Texas Supreme Court ruled that District Court. filed this injunction keep a proceeding to candidate’s original proceeding the ballot rendered moot off also attempted petition He to file a *4 appellate time lack of for normal re- intervention in lawsuit on Gamble’s Huntress, view. Williams v. 153 Tex. January 19, but of because the non- (1954). Therefore, suit, it too to allow him to was filed late injunction subject attack to collateral appeal contest or district court’s ac- Here, if by appel- Id. even an mandamus. tion. available, remedy late were also would time inadequate due to constraints. II. POWER MANDAMUS Johnson, See v. 796- Law 97 (Tex.App.- [14th Dist.] First, we whether a address de- pet.) (finding appeal accelerated of appropriate remedy mandamus is the nial absen- injunction was moot because Triantaphyllis to remove Gamble’s begun). voting already tee had Trianta- name the list of on the candidates phyllis remedy by appeal has no in this ballot. Gamble maintains was a situation. district court’s order bring must an action in expired order that temporary restraining any appeal district court and then adverse by operation days of law after its fourteen ruling, he or that should have inter P. Fur- issuance. See Tex. R. Civ. vened in lawsuit. Gamble’s We thermore, filed a Judge Gamble nonsuit differently. read Election Code Our issued, temporary injunction was before a reading of the Texas Election Code and accept precluding appellate review. To the case leads us law to conclude this would foreclose argument Gamble’s jurisdiction Court has to issue writ of any review of the actions proceeding. mandamus Tex. Accordingly, we re- officials in this case. (Vernon 1986) 273.061 Elec. Ann. Code have ject conclude argument we (“The of appeals court or a court supreme power comply respondents to direct compel issue a writ of mandamus they have not statutory duty with their performance duty imposed by of any done so. holding law connection with the of an convention, a political party election or III. LAW APPLICABLE
regardless person of whether the responsi Next, applicable we to the duty public ble for turn performing officer.”). rights, various re pertaining The same to all law to determine the rules non sponsibilities, consequences original proceedings apply in this Court parties compliance places the Code on the here. Tex. Elec. Code Ann. (Vernon 1986). has power mandamus before us. The Texas We have Elec emphasized that perform the sections to direct a official Sutherland, candidacy politi- duty dealing tion with correctly. Escobar Code 141.032(e) (Vernon cal office are mandatory and are to be Elec. Ann. Code Howell, strictly enforced. Wallace v. 707 Supp.2002). We have not found a conse- (orig. proceed- quence in the Code for the chair’s ing). The Code contains a number re- failure to in an application detect errors quirements with which the candidate must enough by soon to allow correction comply. “To place be entitled to a However, pro- candidate. does Code ballot, general primary election a candi- an injunction vide for brought date must make an for a person who being harmed a violation on the ballot.” Tex. Elec. Code Ann. the Code. (Vernon § 172.021 appli- (Vernon 1986). § 273.081 identify cation must “in- sought, short, places the Election Code re- cluding any place number or other distin- sponsibilities on both the candidate and guishing number.” Furthermore, the party chair. it provides § 141.031 Supp.2002). A candi- consequence if the candidate does not comply must statutory all re- followthe Code. quirements to be entitled to have his Walker, on the ballot. Brown v. *5 IV. ANALYSIS S.W.2d 632 (orig. proceed- ing). The deadline for filing an application A. The Effect of Gamble’s De- p.m. is 6:00 on 2. Tex. Elec. Code Application fective § Supp.2002). 172.023 Ann. Everyone agrees that Gam Code contains provision permitting defi- application ble’s filed on December in applications ciencies to be corrected af- statutory require 2001 did not meet the ter the filing deadline. consequence place Judge ments to Gamble’s name on for the failure to an application file that the ballot as a candidate for the complies with the Code requirements of the 270th District Court. omission from the list of appear names to The application wrong named the office. on the ballot. Tex. Elec. Code Ann. This is not a minor defect. The error was 172.029(d) (Vernon § Thus, Supp.2002). open case, and In obvious. such a application candidate’s is defective and is Code’s unequivocal mandate is amended, timely not that candidate’s name Gamble’s name should be removed from may not appear on the ballot. those to be included on the ballot. Tex. The Election requires Code also certain 172.029(d) (Vernon Elec. Code Ann. actions of the party responsible officials Supp.2002); Tex. accepting for applications. ballot Within 141.032(e)(Vernon Supp.2002) days five after filing, the county chair “shall review the to determine B. The Effect of the Chair’s whether it complies with requirements Notify Failure to the Candidate of form, content, as to procedure and the Defect satisfy must for the candidate’s name to be placed Gamble admits that ap on ballot.” 141.032(a) (Vernon plication mistakenly contained wrong If number, points does not but he out that the conform to the requirements, county mandated chair did not comply then the chair with its statu duties, “reject tory must the application specifically, county and immedi- ately deliver to the candidate written no- did the application not review within five tice of the rejection.” So, reason for the him days notify the error. is,
question party application’s before us does the ultimate for the com burden timely chair’s failure to the candi- who has the most notify pliance person date of a create an vested interest in the outcome—the candi defect date. It is the candidate accounta equitable right favor the candidate to who is if a placed proper application ble is not ballot? The Code does Hunter, Bejarano directly not address this How- filed. question.
ever,
it,
(Tex.App.
orig.
case
Paso
law has addressed
we
—El
guid- proceeding).
accountability
believe
indirect
“This
the Code contains
Es
ance on
intentions but
the deed.”
the issue.
cobar,
(emphasis
at 404
add
S.W.2d
First, we discuss the ease law.
ed).
Even when the chair
to review an
fails
Second,
noted,
as we have
in connection
as
under
section
re-
balloting process,
with
the Code
have
the Election
courts
party
both
quires
the candidate and the
can
placed
nonetheless
the burden on the
things.
chair to do
obtain a
certain
To
didate to
that the
com
ensure
ballot,
is re-
Escobar,
plies
established law.3
compli-
sponsible
filing an accurate and
Gibson,
404;4
see
re
re-
ant
chair is
—Waco
days
receiving
five
sponsible, within
(ordering
can
orig. proceeding)
removal of
reviewing
application, for
name,
didate’s
after
to shift re
refusing
Here,
for defects.
neither the candidate
sponsibility
failing
official for
responsibili-
nor the
fulfilled their
error,
discover
where
left blank
office was
Yet,
impose
legislature
ties.
chose to
Brown,
*6
application);
on
see also
his
consequence
only
on
the candidate for
(granting
S.W.2d at
mandamus to re
to
an
failure
file
error-free
to party
move candidate who mailed fee
Code contains no
for the
consequence
mail
by regular
chairman
instead of certi
chair’s failure to
an
party
applica-
review
mail,
required,
though
fied
as statute
even
For
it does
state that
example,
tion.
not
instructions);
he
followed chairman’s
do
a can-
party
job,
if the
chair fails to
its
Mather,
Jones v.
placed
the
didate’s name must be
bal-
[14th Dist.]
to
by
legislature
This
lot.
decision
orig. proceeding)
(failing to excuse late
one
and not the other
penalize
omission
filing despite
pub
to
party official’sfailure
to which
legislature’s
reflects
view as
required
filing
of
of
lish
notice
extension
greater responsibility
what the
is the
deadline);
Fischer,
Leach v.
must
result
be.
847 (Tex.App.
Worth
—Fort
orig.
who
proceeding) (charging
conclude that the
summary, we
timely
the defect
relied
erroneous statements
chair’s failure
discover
own ne-
knowledge
officials with
of election code
not override the candidate’s
does
law
and entitle the candidate to correct
provisions).
placed
glect
The case
has
amend,
allowing a
ing
early
not
filer to
does
concede
perform
did
duties. He
not
to seek a
deadline filer the maximum time
points
application,
at
but
out she looked
judicial remedy.
None-
party chair have failed out carry their of filed pose requiring responsibilities, greater responsibility identifying the office is to being sought is for the candidate to ensure that his own provide party, potential notice to the other application is correct. candidates, public. “object and the
sought to be appli- obtained” the Code’s cation is requirements identify Purposes C. of the Election Code for which filing. the candidate is It Our review of the purposes of the Elec “just in light and reasonable” of that ob- compels tion Code also us to reach the ject require all candidates to bear the conclusion that a candidate who files a filing burden of a correct application. To defective and fails to correct it permit do otherwise correction of an deadline cannot have his application after the filing deadline would name placed on the ballot. The 1997 open the entire balloting process to the amendments to the Election Code were potential inconsistency, uncertainty, de- made to correct in applying inconsistencies lay, and fraud. early voting Because the provide for more efficient very deadline quickly follows on the heels operations elections, deadline, preclude and to provid- Code has voter fraud. See relatively ed for a speedy remedy injunc- Senate Comm. on State — Affairs, analysis, person Tex. H.B. 75th tion—if a being harmed bill (1997); Leg., R.S. violation of being the Code or improperly House Comm. on Elec tions, left Analysis, off the ballot. Election contests would Bill H.B. (1997). Leg., R.S. abound and would be prolonged courts
were to determine whether an error was an honest mistake or purposeful. While there is allegation Thus, by refusing to look to the intent of ease, fraud purpose preclud filer, purposes we further the ing fraud on the voters cannot fur *7 Code. by thered permitting a candidate to have a
place on the ballot when his application result, In reaching this we have consid- comply does not with the Election Code. holding ered the in a recent decision from The potential for fraud arises where a Court, Bell, our In re No. 02- — - permitted is to obtain place a on 0034, 87074, 2002 WL S.W.3d the ballot after filing application (Tex. 2002) for a Jan. (orig. proceeding). different office than that for which he ob departed The court requirement petition signatures. tained purpose “The compliance for strict with Election Code’s of meticulous adherence to the law is not mandatory requirements candidacy, deprive willing candidates from their finding city that the omission of the ballot; place on the the purpose is to petition signer’s residence from a address equal ensure treatment all candidates did not undermine the Code’s in purpose place It makes plications sense to petitions candidate the to review in a short compliant ultimate application. burden for a period place It of time. is reasonable to It is his and it should be easier for greater looking single burden on the one at a a any careful candidate to find defects. A reviewing rather than on the one chair, especially on the other in hand — many. populous county a ap- have numerous —could Bell, requiring the address because there was the relevant Election Code sections other enough verify mandatory information voter use term “must.” See Tex. — Id., 141.031(4)(C)(“a eligibility. op. § at at -. slip S.W.3d candi Code Ann.
date’s on the ballot that ... required by code must that court held Election any ... sought, including include the office according Code must be construed to the number,”); and distinguishing Id., slip Construction Act. at op. 172.029(d) (“[a] § candidate’s Code Ann. — at - (citing Tex. Elec. Code name the list a [as must be omitted from § Supp.2002)). Ann. ... if the appear ballot] Act, emphasized that under the “the candidate’s is determined presumed to have Legislature intended require comply applicable in ‘just enacting a result’ reasonable ments.”) added). If (emphasis the word (citing statutes.” Tex. Code Ann. Gov’t “must” in the Election appears 311.021(3) (Vernon 1998)). In constru requires mandatory compliance. section statute, may ing courts consider the (Tex. Strake, Cohen v. object legislative history and “the App. orig. pro [14th Dist.] Bell, slip attained.” op. In re Bell did not ceeding). importantly, More — at - (citing Tex. Gov’t Code suggest cor that defect could ever (Vernon 1998)). 311.023(1),(3) Thus, we filing rected after the deadline. may also consider the conse Courts require that Bell does not a dif conclude particular quences of a construction. ferent than interpretation these sections 311.023(5). Gov’t plain reading that of them. afforded are not with a presented We situation in require like that Bell where failure to Duty Mandatory D. The Chair’s compliance pur- strict will not defeat the pose statutory requirements. Finally, having determined Bell, responsibility the court faced with a was to file challenge Gamble’s remedy petitions, application, to the not the correct we turn to the First, court relied on other information contained seeks. we consider ap petitions verify that Gamble can amend the voters whether applicable plication precinct lived and found after deadline. listing city inclusion of the the voters’ Gamble filed a second 10, 2002, Here, unnecessary. January addresses was correct office after Defi only apart documents deadline. not be correct possibly applications could used to show ciencies *8 v. filing Jaime sought Gamble are the ed after the deadline. See by Judge Patlan, (Tex.App.— 336 plainly The Code petitions. Election (candi 1986, orig. proceeding) petitions to cor- San Antonio clearly prohibits using the filing not file until application. an error in the did rect 141.032(c) (Vernon had to opportunity deadline and thus no Elec. Code Ann. Moreover, filing after ex compliance strict amend or refile time for Supp.2002).6 Likewise, because, an filed after pired). in case unlike is quirements may not be petition for one document part not considered of the ‘'[T]he is other docu- purposes determining remedied the contents of the of com- 141.032(c) applicable pliance requirements to ment.” with the Tex. Elec. Code Ann. document, deficiency re- each and a party the filing deadline is ineffective. See S.W.2d at 349. Because chair the (Tex. Mather, Jones S.W.2d failed to omit Gamble’s name from 1986, orig. pro Dist.] App. [14th the list of candidates delivered to the Sec- ceeding) (denying seeking mandamus to State, retary of should to mandamus issue candidate who place day on ballot filed one compel him to omit Gamble’s name late); Shaner, but see Painter v. 667 from the ballot as 123, 125 (granting man of the 270th District to filing damus allow late due to absence of Gibson, Court. See 960 S.W.2d at only person to receive applica authorized (granting relief where mandamus tion). We conclude that after the chair of failed to omit name candidate who passed, Judge deadline Gamble had no application). had filed a defective otherwise, equitable right, amend his designation correct V. CONCLUSION office he sought. Having made this short, In language we in see determination, we are with confronted relevant sections of Election Code or issue whether mandamus will issue to in the Code Construction Act that would remove from the Gamble ballot. allow Judge Gamble’s name added to the duty chair’s to deter list of approved names on the ballot. mine whether an application plain language requires ballot complies the statutory re application naming an Escobar, quirements is ministerial. be filed within the deadline. We at 405-06. has no dis harsh, acknowledge this result seem certify placement cretion to especially for who did someone not act the ballot if the application fails to meet fraudulently. This is loathe to see requirements. Id. Respondents these election a clerical decided error rath- to perform failed their non-discretionary However, er than by the voters. the pur- duties correctly under the Election Code pose of integrity the Code is to ensure the by certifying Judge Gamble’s name for elections, that, of our do it has set placement general primary election requirements forth a number of that must ballot when he had not filed an any Ignoring followed. of those rules compliance applicable with the require and denying petition for writ of man- ments. See damus could pur- undermine the Code’s 172.029(d)(Vernon Supp.2002).7 end, poses. it is not unfair to Although appellate courts have no abili- require a candidate files for office and who ty to resolve factual disputes mandamus correct, swears that actions, when, here, the application as bear the for an error in consequences face, defective on its appeals may issue a ordering writ mandamus certifying reject Accordingly, conditionally grant official to we would- application. Bejarano, be candidate’s writ and order to do respondents the fol- ("The argues temporary restraining Gamble chair acted issuance of a or *9 der, pursuant purpose temporary injunc to the TRO. The of a TRO like of a the issuance tion, quo pending quo maintain the status a full is to status maintain the between the merits, hearing parties.”). reviewing propri not to order the com We are not plete sought by injunction. gen ety any duty imposed, relief See of that TRO but Ltd.., erally Apts., duty imposed Cannon v. Green Oaks rather the the Election 753, i.e., curiam) (per duty. the ultimate (1) lowing: provide guidance applica- remove Gamble’s sufficient for name from the list of tion of the Code candidates for the Construction Act to facts in the instant Ac- presented 270th District case. Court I election; cordingly, opinion in the concur with the of the general primary and (2) remove, majority. exclude omit and/or Republican Gamble’s name the 2002 general primary ballot as candi- of the App. 52.8(c). P.
District Court. See Tex. R. respondents
The writ not issue will unless comply opinion.
do not with this time imposed view of the constraints Finishes, Inc., Diane FOLEY d/b/a these, challenges law for such as Appellant Appellee, and will no motions for entertain rehear- App.
ing. See Tex. R. P. 2. PARLIER, Appellee Rick Appellant. SEYMORE, Justice, CHARLES W. concurring. No. 2-01-056-CV. It is that or more undisputed one Texas, Appeals Court of respondents timely comply failed to Fort Worth. statutorily mandated duties review 7, Feb. immediately give application and written rejection. notice of reason See Rehearing March Overruled (e) 141.032(a)-(b), Elec. Code. par 1986 & The real ty appropriate and obtained an le
gal from the 55th District Court of remedy It is County. my opin
Harris considered P.K. order fulfilled
ion Reiter’s legislative “just intent and reason solely if the
able result” focus is
remedy respondents’ failure to
comply with mandatory provisions Bell,
Election See In Re No. 02- Code. *2, slip op. at WL
- - (Tex. -, Jan.
2002) However, proceeding). I am (orig. statutory
persuaded by majority
interpretation injustice which cures legislative will not
real further equal treatment of all
purpose to ensure protect voters fraud.
candidates Hunter, Bejarano v. 1995, orig. pro Paso —-El Court, Bell, ceeding). did