Branaum v. Patrick

Decision Date20 October 1982
Docket NumberNo. 16753,16753
Citation643 S.W.2d 745
PartiesJames G. BRANAUM, Appellant, v. Kae Thomas PATRICK, Appellee.
CourtTexas Court of Appeals

Barrett Moursund, Moursund, Ball & Schmidt, San Antonio, for appellant.

Tom Joseph, San Antonio, for appellee.

Before CADENA, C.J., and CANTU and BASKIN, JJ.


CANTU, Justice.

This is an appeal from a take-nothing judgment rendered in a suit brought under Chapter 14 of the Texas Election Code. Tex.Elec.Code Ann. art. 14.04 (Vernon Supp.1981).

Appellant, a candidate in the Republican primary of 1980, brought suit against appellee, also a candidate in the same primary, to recover civil penalties for alleged violations of the Election Code.

Appellant, in his first amended original petition, alleged that appellee violated article 14.02(I) 1 by making and accepting a campaign contribution by loaning $400.00 to his campaign, and by making a campaign expenditure by paying a $400.00 filing fee, without first timely filing a designation of campaign treasurer. Appellant then prayed for $1,600.00, double the amount of both the unlawful contribution and of the unlawful expenditure. Appellant further prayed for reasonable attorney's fees, costs of court, and for any other relief as the court might deem just.

Appellant filed his motion for summary judgment alleging that appellee made and accepted a campaign contribution as defined in article 14.01(D) and a campaign expenditure as defined in article 14.01(E) on January 31, 1980. Appellee filed a designation of campaign treasurer for the primary election on February 7, 1980. Appellant alleged that under article 14.02(F)(1) 2 the contribution and expenditure made on January 31, 1980 was illegal because no designation of campaign treasurer had been filed with the appropriate authority at that time. Thus, under article 14.04(A), according to appellant, appellee was civilly liable to each opposing candidate whose name appeared on the ballot.

Appellee also moved for summary judgment contending that Vita Mayo was his treasurer from February, 1978, through February 6, 1980, when his new campaign treasurer was designated. Exhibit A to Appellee's motion for summary judgment was a copy of the Candidate's Sworn Statement of Contributions and Expenditures filed on the last occasion required by State law after the November 1978 general election. Appellee alleged that at the time he filed this statement he had the option of designating it as a final return and thereby terminate his designation of the existing campaign treasurer, or considering such report an interim report and thereby retain the designation of the existing campaign treasurer. He claims he chose the latter. Appellee asserts that Vita Mayo's term terminated on February 6, 1980, when a new treasurer was designated. Appellee further counter-claimed against the appellant for violations of the Election Code. The record does not indicate that these motions for summary judgment were ever heard. A trial on the merits, however, was had on November 24, 1980, before the Court. Appellant testified at the trial and during cross-examination, over objection, was asked how he was damaged by the designation of a treasurer on the 7th of February. Appellant responded

A: Damage in the fact that money was spent specifically against a given candidacy without being properly filed.

Q: How was that against your candidacy, Mr. Branaum?

A: Mr. Patrick obviously ran against me in the primary. I would assume any money spent on behalf of his campaign would be with the intent to stop or quash my campaign. Therefore, any funds that were spent become damaging. If Mr. Patrick were going to run for the same office without spending a dime, then there would be no damage; would there?

Q: You feel that you were damaged because $400 was spent, paid to the party in connection with his filing as a candidate in the party primaries; is that correct?

A: I feel that I was damaged in the fact that Mr. Patrick spent money in violation of the law, basically, not publicly.

Q: How did it hurt you?--is my question, Mr. Branaum.

A: I think I have answered the question.

The trial court entered a take-nothing judgment against appellant and against appellee on his counter-claim. Findings of fact and conclusions of law were entered. The findings of fact were: (1) Kae Thomas Patrick filed for the office of State Representative District 57H in the Republican Primary for Bexar County on or about February 1, 1980. At such time, he paid a $400.00 filing fee; (2) the filing deadline for such office was February 4, 1980, at 6:00 p.m.; (3) Kae Thomas Patrick made a designation of campaign treasurer for his first such campaign in 1978 whose name was Vita Mayo; (4) Kae Thomas Patrick did not file a final Sworn Statement of Contributions and Expenditures for the 1978 campaign wherein he was the Republican nominee for the same office, but an interim statement; (5) the interim statement referred to in finding number 4 above was not a final statement; (6) Kae Thomas Patrick filed a designation of campaign treasurer on February 7, 1980, with the Secretary of State naming Edgar Von Scheele as campaign treasurer; and (7) James G. Branaum filed for the same office in the same primary by filing a nominating petition with signatures of registered voters in lieu of a $400.00 filing fee on or about January 5, 1980.

The conclusions of law were: (1) the court has jurisdiction of the subject matter; (2) the payment of $400.00 on or about February 1, 1980, before the designation of Edgar Von Scheele as campaign treasurer on or about February 7, 1980, did not affect the outcome of the primary election; (3) the payment of the $400.00 filing fee on February 1, 1980, and the designation of Edgar Von Scheele as campaign treasurer on February 7, 1980, did not conceal any information regarding such filing fee from Plaintiff James G. Branaum, nor did it act to his detriment; (4) the Election Code does not specifically deal with a situation where a final campaign Statement of Contributions and Expenditures was not filed and a new campaign is begun in a subsequent election; (5) the Office of the Secretary of State on April 12, 1978, promulgated a directive titled "Political Funds Reporting and Disclosure Directive" concerning such circumstance about which the Election Code is silent; (6) the Directive of the Secretary of State is promulgated in fulfillment of the Office of the Secretary of State's responsibilities imposed on it by the Election Code to "obtain and maintain uniformity in the application, operation and interpretation of the election laws;" (7) Insofar as the Directive is applicable to this cause, this court finds it to be directive and not substantive; and (8) in any case, the court finds that Kae Thomas Patrick was in substantial compliance with the Election Code and the Directives of the Secretary of State.

Appellant perfected his appeal to this court and brings forth nine points of error in his appeal. Points of error one, two, three, four, seven and eight will be grouped together since they are related. In these points of error appellant argues that the court, as a matter of law, should have entered judgment in his favor on his claim for civil penalties and that it was error for the court to consider any evidence of actual damages or substantial compliance on the part of appellee, these being irrelevant matters in this suit. We disagree.

Article 14.04 providing a civil remedy for violations of the Political Funds Reporting and Disclosure Act of 1975 in pertinent part holds:

(A) Any person who knowingly makes or knowingly accepts an unlawful expenditure in support of a candidate shall be civilly liable to each opposing candidate whose name appeared on the ballot in the election in which the unlawful contribution or expenditure was involved for double the amount of value of such unlawful campaign contribution or expenditure and reasonable attorneys fees for collecting same.

* * *

* * *

The Act also provides civil liabilities in favor of the State of Texas and prescribes criminal liability. See article 14.05.

Although article 14.04(A) speaks only of civil liability and not of penalties, section (C) creating civil liabilities in favor of the State of Texas recognizes that sections (A) and (B) are in the nature of penalties running in favor of aggrieved members of a class.

The distinction between the liabilities created by civil and criminal statutes was recognized by the United States Supreme Court in Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892) when, speaking through Mr. Justice Gray, it stated:

In the municipal law of England and America the words 'penal' and 'penalty' have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offense against its laws.

But they are also commonly used as including any extraordinary liability to which the law subjects a wrongdoer in favor of the person wronged, not limited to the damages suffered.

Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.

It is an ancient rule of statutory construction and an oft-repeated one that penal statutes should be strictly construed against the government or parties seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed. United States v. Wiltberger, 18 U.S. 76 (5 Wheat), 5 L.Ed. 37 (1820); Houston E. & W.T. Railway Co. v. Campbell, 91 Tex. 551, 45 S.W. 2 (1898); State v. International & G.N.R. Co., 107 Tex. 349, 179 S.W. 867 (1915).

The rule favoring a strict construction is sometimes relaxed where the interests of the party who is subject to a penalty are balanced against the interests of...

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11 cases
  • State v. K.E.L.
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