Lead Opinion
OPINION
This appeal involves reimbursement of attorney’s fees and expenses in connection with an election contest under Election Code sections 173.001(a) and 173.086(a). See Tex. Elect. Code. Ann. §§ 173.001(a), .086(a) (West 2010).
The Tarrant County Democratic Party (TCDP), the Texas Democratic Party (TDP), and their respective chairs
On appeal, we address four main issues: (1) whether the Secretary of State’s sovereign immunity may be waived by Election Code section 173.086(a), (2) whether any statutory prerequisites to suit exist and were satisfied to invoke the waiver, (3) whether the Brimer suit fees were in connection with the primary election, and (4) whether Appellants are entitled to reimbursement of their attorney’s fees.
We hold that Election Code section 173.086(a) waives the Secretary of State’s sovereign immunity for a suit that complies with its requirements; the Election Code imposes certain statutory prerequisites which were either met or waived, and Appellants successfully invoked section 173.086(a)’s waiver; Appellants’ Brimer suit fees were in connection with the primary election; and Appellants are entitled to reimbursement of their Brimer suit fees.
We reverse the portion of the trial court’s judgment denying Appellants’ reimbursement request for their Brimer suit attorney’s fees, render judgment that the Secretary of State authorize Appellants’ reimbursement and postjudgment interest, and affirm the remainder of the trial court’s judgment.
Background
This appeal involves three separate, but related, proceedings involving Appellants: (1) two lawsuits filed against Appellants by certain citizens of Fort Worth contesting Wendy Davis’s eligibility to be a candidate in the 2008 Democratic primary election (the Cerda lawsuits), (2) a lawsuit filed
A.The Cerda Lawsuits
In 2007, Wendy Davis was serving as a member of the Fort Worth City Council. She resigned her city council seat and filed her application for the State Senate District 10 race. When Davis filed her application, certain Fort Worth-area citizens challenged her eligibility for the primary election ballot in two original proceedings naming TCDP’s and TDP’s chairs as respondents.
The Cerda lawsuits sought the removal of Davis’s name from the primary election ballot. The petitioners contended that Davis was constitutionally ineligible as a senatorial candidate because she had not yet completed her paid city council term when she filed her application. See Tex. Const, art. Ill, § 19 (“No ... person holding a lucrative office under ... this State ... shall during the term for which he is elected or appointed, be eligible to the Legislature.”).
The Cerda lawsuits were unsuccessful; Davis ran unopposed in the March 4, 2008 Democratic primary election. Appellants sought reimbursement for their attorney’s fees from the primary election fund. The Secretary of State approved the request and authorized reimbursement.
B. The Brimer Lawsuit
About four months after the primary election, Kim Brimer
C. The Underlying Lawsuit
After prevailing in the Brimer lawsuit, Appellants applied for reimbursement from the primary election funds for their attorney’s fees. The Secretary of State denied their request on the ground that the fees were “unrelated to the administration of the primary election.”
When the Secretary of State refused reimbursement, TCDP and its chair sued the Secretary of State for the attorney’s fees they incurred in the Brimer suit and in the underlying lawsuit. Their petition claimed they were entitled to reimbursement of their attorney’s fees under the Election Code by mandamus, direct suit, or declaratory judgment. TDP and its chair intervened and adopted TCDP and its chair’s claims to recover their own attorney’s fees. The Secretary of State an
Standard of Review
We review a bench trial on agreed stipulated facts de novo. Amaro v. Wilson Cnty.,
If the applicable questions of law involve statutory interpretation, we begin with the statute’s plain language. First Am. Title Ins. Co. v. Combs,
If we conclude the trial court erred in its judgment, we “render on the agreed facts the judgment that the trial court should have rendered.” Cobb v. Harrington,
Brimer Suit Attorney’s Fees
A. Parties’ Arguments
Appellants claim they are entitled to reimbursement of their Brimer suit attorney’s fees under Election Code sections 173.001(a) and 173.086(a).
We first address whether the Secretary of State’s immunity from suit may be waived by section 178.086(a), and then whether Appellants’ suit is jurisdictionally barred by Appellants’ alleged failure to comply with statutory prerequisites.
B. Statutory Waiver of Sovereign Immunity
Generally, the state has sovereign immunity unless its immunity is expressly and unequivocally waived by the legislature. See Tex. Natural Res. Conservation Comm’n v. IT-Davy,
Concerning waiver, we examine Election Code section 173.086(a); it states as follows: “The authority who submitted a statement of estimated primary election expenses under this subchapter may challenge in a district court in Travis County the amount of state funds approved by the secretary of state for disbursement.” Tex. Elec.Code Ann. § 173.086(a). Considering the statute’s unambiguous plain language, we hold that section 173.086(a) waives the Secretary of State’s sovereign immunity for a suit that complies with its requirements. See id.; Chatha,
We turn next to whether the record shows that Appellants invoked the waiver by complying with any applicable statutory prerequisites. See Chatha,
C. Statutory Prerequisites
“Statutory prerequisites to a suit ... are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov’t Code Ann. § 311.034 (West 2013); accord Chatha,
1. Discerning Statutory Prerequisites
Not all of a statute’s provisions are necessarily statutory prerequisites. Chatha,
“[A statutory] prerequisite must be found in the relevant statutory language.” Chatha,
b.Prerequisite Must Be a Requirement
A “prerequisite must be a requirement.” See id. at 512. Section 173.086(a) is the only statutory basis to challenge the Secretary of State’s amount of reimbursement for a claimant’s expenses. See Tex. Elec. Code Ann. § 173.086(a). As there is no other statutory basis for a challenge, this provision is a requirement. See Chatha,
c.Requirement Must Precede Suit
“[T]he requirement must be met before the lawsuit is filed.” Id. According to the statute, an authority must submit “a written statement of estimated expenses to be incurred” to the Secretary of State. Tex. Elec.Code Ann. § 173.081(a). Upon receipt of the statement, the Secretary of State must review it and report the results of his review to the authority. Id. § 173.082. The Secretary of State may make installment payments based on the statement. Id. § 173.083. The authority must timely report its actual expenses, id. § 173.084, but may challenge the reimbursement amount only if it “submitted a statement of estimated primary election expenses under this subchapter,” id. § 173.086(a).
There is no express requirement that the statement contain an estimate of legal expenses. See id. § 173.081 (requiring “itemized estimates[s] ... of the primary expenses to be incurred” but not expressly including future legal expenses). If an authority submitted an item of estimated expense for estimated legal expenses to defend against a suit not yet filed, see id. § 173.081(b)(1), the Secretary of State could simply disapprove the amount as not “reasonably necessary for the proper holding of the primary election” and disallow any installment payment for that purpose, see id. § 173.082(b), (c).
In sum, the statement of estimated primary election expenses must precede any claim for reimbursement, id. § 173.081, and the Secretary of State’s decision on the claim must precede any suit, id. §§ 173.082,173.086(a).
2. Statutory Prerequisites to a Section 173.086(a) Suit
Considering the relevant statutory provisions, we hold that submitting a statement of estimated primary election expenses that complies with the subchapter’s provisions, e.g., id. § 173.081, is a statutory prerequisite,
We next turn to whether the record shows Appellants complied with this statutory prerequisite.
D. Agreed Statement of Facts
Here, the parties chose a bench trial on agreed stipulated facts. See Tex. Civ. P. 263 (“Agreed Case”); Cummins & Walker,
1. Statement of Estimated Primary Expenses
The stipulated facts do not include any stipulation on whether TCDP or TDP filed a statement of estimated primary expenses.
In this case, the stipulated facts compel the conclusion that either Appellants filed a statement of estimated primary expenses or the Secretary of State waived the statutory prerequisite. To be reimbursed for their Cerda suits’ attorney’s fees, Appellants were required to file a statement of estimated primary expenses -with the Secretary of State. See Tex. Elect. Code Ann. § 173.081. The Secretary of State was not obligated to pay the Cerda fees unless Appellants filed a statement of estimated primary expenses. The parties stipulated that the Secretary of State paid the Cerda fees. Thus, either Appellants met the statutory requirement by filing a statement of estimated primary expenses or the Secretary of State waived any complaint about the requirement.
Because a statement of estimated primary expenses is filed for an election— that may cover several candidates and any corresponding lawsuits—we conclude that the same conclusion applies to the Brimer suit fees claim. Therefore, we conclude as a matter of law that for the Brimer suit, the statement of estimated primary expenses requirement was either met or waived. See Lawler,
We next turn to the basis for the Secretary of State’s denial of Appellants’ request for reimbursement of the Brimer suit fees.
E. Reach of “In Connection With”
The Secretary of State’s December 19, 2008 letter to TCDP’s chair explained that the Secretary of State would not authorize reimbursement for the
The legislature allows the Secretary of State to “pay expenses incurred by a political party in connection with a primary election” or “in connection with the administration of primary elections.” Tex. Elect. Code Ann. § 173.001(a), (c). The phrase “in connection with” has a broad reach. See Ex parte Ellis (Ellis II),
The Brimer suit sought general election relief: it sought to remove Davis’s name from the general election ballot. But the basis for the complaint was that Davis was constitutionally ineligible to submit her application for the primary election. Considering the broad reach of “in connection with,” we cannot say the legislature intended to exclude reimbursement of attorney’s fees for a suit defending against a complaint that the candidate was ineligible to participate in the primary election. The plain language of the statute — “in connection with a primary election” — does not exclude a suit seeking general election relief from the set of suits that are in connection with a primary election. See Tex. Elect. Code Ann. § 173.001(a).
Because we construe “in connection with” broadly, and the basis of the Brimer suit complaint was Davis’s constitutional ineligibility to file an application to appear on the primary election ballot, we hold that the Brimer suit attorney’s fees are in connection with the primary election. See id.; Ellis II,
F. Brimer Suit Fees Award
In summary, Appellants met the statutory prerequisites to suit — or the Secretary of State waived any such complaints — and the Secretary of State’s immunity from suit was waived. See, e.g., Tex. Elect. Code Ann. §§ 173.081, .082, .083, .086(a). Appellants’ Brimer suit attorney’s fees were in connection with the primary election. See id. § 173.001(a); Ellis II,
We turn next to Appellants’ claim for attorney’s fees in the underlying lawsuit.
Declaratory Judgment Action
Appellants also argue that the Uniform Declaratory Judgment Act allows them to recover attorney’s fees in the underlying lawsuit. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (authorizing attorney’s fees). They cite City of El Paso v. Heinrich for the proposition that “where statutory or constitutional provisions create an entitlement to payment, suits seeking to require state officers to comply with the law are not barred by immunity merely because they compel the state to make those payments.” See City of El Paso v. Heinrich,
However, “[t]o fall within this ultra vires exception, a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.” Id. at 372; cf. Tex. Parks & Wildlife Dep’t v. Sawyer Trust,
A. The Secretary of State’s Discretion
By statute, the Secretary of State has discretion to determine what estimated expenses are “reasonably necessary for the holding of the primary election.” Tex. Elect. Code Ann. § 173.082(b). If the Secretary of State determines an estimated expense is reasonably necessary, the Secretary must approve the expense. Id. If the Secretary of State determines that part or all of an estimated expense is not reasonably necessary, that item or portion thereof may not be reimbursed from primary funds. Id. § 173.082(d). Once the actual expenses are known, if an actual expenditure exceeds the estimated amount, the provisions of section 173.085 control. Id. § 173.085(a). If, in the Secretary’s discretion, the Secretary of State determines that part or all of an excess expense is supported by good cause, the Secretary of State must approve the payment. Id. § 173.085(c).
B. The Secretary of State’s Action not Ultra Vires
Appellants assert that the ultra vires exception applies because the Secretary of State had no discretion to deny their Brimer suit fees. They cite section 173.086(c) to show the statute “us[es] terms of entitlement and mandatory payment” that compel the Secretary of State to authorize their reimbursement request. See Tex. Elect. Code Ann. § 173.086(c).
But 173.086(c) requires the court to “order payment in the proper amount” only if the court decides the claimant is entitled to the additional reimbursement. Id. Although section 173.086(c) uses some terms conditionally compelling a court to act, the section does not strip the Secretary of State of all other discretion or, in this case, compel the Secretary of State to reimburse Appellants’ Brimer suit fees. We hold that the legislature has expressly granted the Secretary of State discretion
Under the facts of this case, the Secretary of State acted within his discretion, and the ultra vires exception is not available to Appellants. Thus, Appellants are not entitled to attorney’s fees in the underlying lawsuit or in this appeal.
Good Cause Justifying Payment
Although we briefly mentioned the Secretary of State’s discretion in determining good cause for payment of excess expenses, because that provision applies in this case, we must more fully consider the Secretary of State’s determination of good cause. Under the code, “[t]he secretary of state shall approve the payment of the excess expense with state funds if the secretary determines that payment is justified by good cause.” Tex. ElegCode Ann. § 173.085(c) (West 2010). If the Secretary of State determines that payment is not justified, the excess expense “may not be paid with state funds.” Id. § 173.085(e). In effect, the payment approval for an excess expense turns on good cause.
A. Definition of Good Cause for Excess Legal Expenses
To determine the statutory meaning of good cause, we look first to the Election Code itself for a definition and its uses of the phrase. The Election Code uses the phrase “good cause” approximately ten times; four of those uses are in chapter 173, Primary Election Financing, but the code does expressly define good cause. We have found no case that addresses this specific statute, but we may look to other decisions for guidance.
Here, Hawkins v. Safety Casualty Co. provides a helpful analog. See Hawkins v. Safety Cas. Co.,
1. Diligence
Diligence may be defined as “[a] continual effort to accomplish something” or “[c]are; caution; the attention and care required from a person in a given situation.” Black’s Law Dictionary 488 (8th ed. 2004); cf. El Paso Field Servs., L.P. v. MasTec N. Am., Inc.,
Generally, a prudent person is one who is “[cjircumspect or judicious in [the person’s] dealings; cautious.” Black’s Law DictionaRY 1263 (8th ed. 2004); cf. El Paso Field Seros.,
We hold that for section 173.085 of the Election Code, good cause for excess expense reimbursement includes timely compliance with each of the applicable statutory requirements or justification that shows the authority exercised the diligence of a prudent person but was otherwise prevented from completing the requirements by causes outside the authority’s control. Having defined the applicable standard for good cause to justify reimbursement of an excess expense, we examine the evidence in this case.
B. Evidence of Good Cause
Here, on the question of good cause, there are no express stipulations. Therefore, we examine the stipulations that pertain to diligence and prudent persons.
1. Diligence
We first examine the stipulated facts to ascertain Appellants’ diligence: their efforts to accomplish their objective — to obtain reimbursement for their Brimer suit attorney’s fees. See Black’s Law DictionaRY 488 (8th ed. 2004) (diligence); cf. El Paso Field Seros.,
Under the code, Appellants were required to file a statement of estimated primary expenses forty-five days before the primary election. Tex. Elect. Code Ann. § 173.081(c)(2). But the Brimer suit was not filed until after the primary election, and Appellants’ statement of estimated primary expenses could not have contained an estimate of legal expenses for a suit that had not been filed. Next, Appellants had to contact the Secretary of State before entering into a contract for legal services, Tex. Admin. Code Ann. § 81.134(d), notify the Secretary of State within three days of receiving service of process, id. § 81.134(e), and provide a written estimate to the Secretary of State within fourteen days after they retained counsel, id. § 81.134(f).
There are no stipulations that Appellants failed to meet any of these requirements, or that Appellants were otherwise not diligent in pursuing reimbursement of their Brimer suit fees. In fact, the stipulated facts show that Appellants submitted their reimbursement requests about seven months before the applicable deadline. See id. § 81.143(h) (deadline). Less than thirty days after the Secretary of State denied their reimbursement request, Appellants asked the Secretary of State to reconsider his decision. When he declined, Appellants timely filed a suit in the required venue to challenge the Secretary of State’s decision. See id. § 173.086(a) (statutory waiver of immunity).
Given these facts, we conclude that Appellants exercised the required diligence. Cf. El Paso Field Servs.,
2. Prudent Persons
To act as prudent persons, Appellants had to submit for reimbursement only those litigation expenses that concerned the conduct of the primary election. Tex. Admin. Code Ann. 81.134(c). Based on the plain language of the statute and the Administrative Code, and the Secretary of
On this record for a bench trial on stipulated facts, we conclude as a matter of law that a payment from state funds for the Brimer suit attorney’s fees was justified by good cause. See Tex. Elect. Code Ann. § 178.085(c). Therefore, the Secretary of State was required to approve the payment. See id.
Having decided that Appellants are entitled to reimbursement for their Brimer suit fees, we turn next to Appellants’ claim for postjudgment interest.
PostJudgment Interest
Appellants pled and prayed for postjudgment interest, and we must determine whether they are entitled to it.
Because Appellants complied with the requirements to waive the Secretary of State’s immunity from suit, the Secretary of State had the burden to plead and prove his affirmative defense of immunity from liability. See Tex. Dep’t of Parks & Wildlife v. Miranda,
In his answers, the Secretary of State pled the affirmative defense of sovereign immunity, which comprises immunity from liability. See Miranda,
Conclusion
For the reasons given above, we conclude as a matter of law that Appellants’ Brimer suit attorney’s fees were in connection with the primary election. The Secretary of State had discretion to deter
Therefore, we reverse the portion of the trial court’s judgment that denied Appellants their Brimer suit attorney’s fees and render judgment that TCDP and TDP are entitled to reimbursement of their attorney’s fees in the amounts of $15,953.91 and $10,632.57 respectively, and both are entitled to postjudgment interest. We affirm the remainder of the trial court’s judgment.
Dissent to Denial of Motion FOR en banc Reconsideration
Notes
. Gilberto Hinojosa succeeded Boyd L. Richie as chair of the Texas Democratic Party and was substituted as a party in this case. Stephen C. Maxwell has been chair of the Tar-rant County Democratic Party since May 1, 2008.
. Hope Andrade, in her official capacity as Secretary of State, was the original defendant. She completed her term in December 2012; John Steen, who is the defendant in this case, became Secretary of State in January 2013.
. The original proceedings were In re Cerda, Petition for Writ of Mandamus, In re Cerda, No. 08-0028,
. Kim Brimer was the incumbent State Senator from District 10; he also ran unopposed for State Senate District 10 in the March 4, 2008 Republican primary election.
. In their original petition, Appellants also asserted mandamus as a basis to obtain reimbursement of their attorney’s fees. Appellants failed to present any argument or authorities on mandamus in their brief; their mandamus argument is waived. See Tex.R.App. P. 38.1(i); In re Blankenship,
. The Secretary of State contends that submitting a statement of estimated primary expenses that includes an estimated amount of legal expenses is a statutory prerequisite. We are not presented with, and do not address, whether any other statutory provisions are also statutory prerequisites. See Tex.R.App. P. 38.1(i); In re Blankenship,
. Appellants provided post-submission documents stating that a statement of estimated primary expenses was filed. The documents were not before the trial court, they are not part of the appellate record and, therefore, we do not consider them. See Perry v. S.N.,
. The Secretary of State’s discretion is not unlimited, but we need not define its entire scope here.
. In their briefs, Appellants cited the facts underlying In re Brown to show the Secretary of State reimbursed attorney’s fees in equivalent circumstances underlying their Brimer suit fees request. See In re Brown, No. 05-06-00408-CV,
Dissenting Opinion
joined by KAREN ANGELINI, Justice.
I respectfully dissent from the decision to deny appellee’s motion for en banc reconsideration because appellants clearly did not meet the statutory prerequisites necessary to invoke a waiver of sovereign immunity under section 173.086(a) of the Texas Election Code. Because the supreme court has specifically held that such statutory prerequisites are jurisdictional, and the record does not establish appellants met the statutory prerequisites in section 173.086(a), the trial court lacked subject-matter jurisdiction, and the trial court’s order should be vacated and this appeal dismissed. Accordingly, I must dissent to the decision to deny appellee’s motion for en banc reconsideration.
As set forth in the opinion, appellants sought reimbursement from the Texas Secretary of State for attorney’s fees incurred in defending an election contest. The appellants’ challenge to appellee’s denial of their reimbursement request was based on section 173.086(a) of the Elections Code. Section 173.086(a) of the Election Code provides:
The authority who submitted a statement of estimated primary election expenses under this subchapter may challenge in a district court in Travis County the amount of state funds approved by the secretary of state for disbursement.
Tex. Elec.Code Ann. § 173.086(a) (West 2010).
When the Secretary of State denied the request, stating the requested fees were “unrelated to the administration of the primary election,” appellants filed suit against appellee, the Secretary of State. In response, appellee filed a general denial and asserted the defense of sovereign immunity, claiming appellants failed to meet the statutory prerequisites. After a bench trial, the trial court denied appellants’ requested relief, and appellants perfected this appeal. Upon review, this court held the statutory prerequisites in section 173.086(a) were mandatory and jurisdictional. However, we held appellants met the burden of establishing the statutory prerequisites by inferring that a statement of primary expenses — the prerequisite in
I contend, however, this court erred in making such inferences, i.e., findings. In section 311.034 of the Texas Government Code, the Legislature provided that statutes “shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (West 2013). The Texas Supreme Court has held time and again that statutory waivers of immunity must be construed narrowly. See, e.g., Tex. Adjutant General’s Office v. Ngakoue,
To support its decision to infer findings in the absence of a specific stipulation with regard to the filing of a statement of estimated primary expenses, this court relies on Lawler v. Lomas & Nettleton Mortg. Investors,
In Lawler, which is not a sovereign immunity case, the supreme court held that when an appellate court reviews a case tried upon an agreed statement of facts, i.e., stipulations, it may not draw inferences or find facts that are not included in the agreed statement unless such inferences or facts are “necessarily compelled by the agreed upon evidentiary facts.”
In the case now before this court, the court admits the stipulated facts on which this matter was tried “do not include any stipulation on whether [appellants] filed a statement of estimated primary expenses.” Despite the absence of evidence, this court holds it may infer such a filing, or a waiver of immunity by appellee, because appellee reimbursed appellants “for their Cerda suits’ attorney’s fees.” Thus, according to this court’s opinion, payment of the Cerda fees “necessarily compelled” a finding that the statement of estimated expenses was filed or appellee waived immunity. I strongly disagree, particularly given that in sovereign immunity cases, doubts are to be resolved in favor of retention of immunity.
Obviously, appellee was not required to pay the Cerda fees if appellants failed to file a statement of estimated primary expenses, but this does not mean appellee did not voluntarily pay the fees or erroneously pay the fees in the absence of the statement. In other words, appellee’s decision to pay the Cerda fees does not affirmatively establish that a statement of expenses was filed, nor does it “necessarily compel” such a finding. Nor is a finding that a statement of expenses was filed or appellee waived immunity “embraced” in
Given the backdrop from the legislature and the supreme court, it seems to me that making factual inferences (finding facts) in order to find waiver of sovereign immunity from a record that contains absolutely no evidence with regard to compliance with the statutory prerequisites or an affirmative waiver is manifestly erroneous. If reviewing courts are allowed to make such inferences, then the mandates of narrow construction and construction in favor of immunity retention are like a lion without teeth. Given the legislature’s repeated amendment and enactment of statutes favoring immunity, I cannot believe the type of inference-finding engaged in by this court will find favor.
Because appellants failed to establish they met the statutory prerequisites necessary to invoke waiver of sovereign immunity under section 173.086(a), and I do not believe this court may engage in the type of inference-finding upon which the decision is based, I would hold immunity was not waived. Accordingly, I would hold the trial court lacked subject-matter jurisdiction and would vacate the trial court’s order and dismiss the appeal.