Cascos v. Tarrant Cnty. Democratic Party

• Decision Date: 30 October 2015
• Docket Number: NO. 14–0470,14–0470
• Citation: 473 S.W.3d 780
• Parties: Carlos Cascos, in His Official Capacity as Secretary of State of Texas, Petitioner, v. Tarrant County Democratic Party ; Steve Maxwell, in His Official Capacity as Chair of the Tarrant County Democratic Party; Texas Democratic Party; Gilberto Hinojosa, in His Official Capacity as Chair of the Texas Democratic Party, Respondents
• Court: Texas Supreme Court

473 S.W.3d 780

Carlos Cascos, in His Official Capacity as Secretary of State of Texas, Petitioner,

v.Tarrant County Democratic Party ; Steve Maxwell, in His Official Capacity as Chair of the Tarrant County Democratic Party; Texas Democratic Party; Gilberto Hinojosa, in His Official Capacity as Chair of the Texas Democratic Party, Respondents

NO. 14–0470

Supreme Court of Texas.

Opinion delivered: October 30, 2015

Rehearing Denied November 20, 2015

Gregory W. Abbott, Attorney General, Warren Kenneth Paxton, Attorney General, Daniel T. Hodge, First Asst. Attorney General, Charles Roy, First Asst. Attorney General, Office of the Attorney General, Angela Veronica Colmenero, Assistant Attorney General, General Litigation Division, Mishell B. Kneeland, City of Austin, Jonathan F. Mitchell, Solicitor General, Office of the Attorney General, Melissa Holman, Dustin Mark Howell, Erika M. Kane, Scott A. Keller, Office of the Attorney General of Texas, Kathlyn C. Wilson, Assistant Attorney General, General Litigation Division, Austin, for Petitioner.

Max Renea Hicks, Law Office of Max Renea Hicks, Austin, Chad Wilson Dunn, Brazil & Dunn, LLP, Houston, for respondents.

PER CURIAM

Political parties may apply to the secretary of state for state funds to reimburse expenses connected with administering primary elections. See TEX. ELEC. CODE. §§ 173.001, .081–.085. If the political party disagrees with the secretary of state's reimbursement decision, it may sue the secretary in Travis County district court. Id. § 173.086(a). This appeal is from such a suit.

The secretary of state declined to reimburse certain legal expenses because the political party incurred those expenses after the primary election and in connection with the general election. The district court also declined to require the secretary to reimburse these expenses. The court of appeals reversed that decision, however, concluding that the secretary of state abused his¹ discretion because the legal expenses were connected to the primary election. 434 S.W.3d 188, 197–99, 202–03 (Tex.App.–San Antonio 2014). Because we conclude the secretary of state did not abuse his discretion in denying reimbursement, we reverse and render.

The legal expenses at issue arise from a suit contesting Wendy Davis's candidacy for a state senate seat in 2008. Davis ran in the Democratic primary unopposed but faced legal challenges to her candidacy before and after the primary. Before the primary, both this Court and the court of appeals denied original mandamus proceedings by three citizens to remove Davis's name from the primary-election ballot (the Cerda litigation).² After the primary, Davis was certified as the Democratic nominee for State Senate District 10.

About four months after the primary election, Kim Brimer, Davis's Republican opponent, sued in Tarrant County to remove Davis from the general-election ballot. See Brimer v. Maxwell, 265 S.W.3d 926 (Tex.App.–Dallas 2008, no pet.). Brimer alleged that Davis was constitutionally ineligible to run for the Legislature because her application for the Democratic primary was filed during her term on the Fort Worth City Council. Id . at 928 ; see also TEX. CONST. art. III, § 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."). Brimer joined Democratic Party local and state officials along with Davis. His challenge failed, and Davis prevailed in the general election.

After defending Brimer's challenge to Davis's candidacy, the state and county Democratic Party chairpersons applied for reimbursement of related attorney's fees. The secretary of state had previously approved a reimbursement request for legal expenses related to the first, pre-primary challenge to Davis's candidacy but denied this request. The secretary reasoned that the Brimer legal expenses were "unrelated to the administration of the primary election," which had already been held, and therefore should not be reimbursed from primary-election funds the Legislature appropriated.

Litigation ensued in Travis County, and following a bench trial, the trial court upheld the secretary of state's decision. The court found the Election Code to be "ambiguous on the issue of whether the secretary of state [was] required to reimburse the Texas and Tarrant County Democratic parties for attorney's fees incurred in successfully litigating the eligibility of a Democratic candidate brought by her Republican opponent." Because the statute's application was unclear, the trial court deferred to the secretary's determination. The court of appeals, however, disagreed with the trial court's reading of the statute, concluding that the Election Code plainly requires reimbursement of the legal expenses. 434 S.W.3d at 197–99, 202–03.

The appellate court identified the "crucial question" to be "whether the legislature intended to reimburse from state primary election funds a party's legal expenses for an election contest suit that seeks general election relief but is based on a complaint that the candidate was ineligible to appear on the primary election ballot." Id . at 198. The relevant statute authorizes the secretary of state generally "to pay expenses incurred by a political party in connection with a primary election" or "in connection with the administration of primary elections." Id . (quoting TEX. ELEC. CODE § 173.001(a), (c) ). Finding no ambiguity, the court construed the phrase "in connection with" broadly to require the secretary of state to reimburse the legal expenses at issue, even though the expenses were incurred after the primary election in a suit seeking relief in the general election. Id . The court reasoned that the legal expenses were plainly connected to the primary election because they were based on Davis's alleged constitutional ineligibility to appear on the primary-election ballot. Id .

The Election Code expressly grants the secretary of state discretion in determining what expenses are reimbursable from the primary fund. The Code provides that reimbursable expenses are those that the "secretary determines reasonably necessary for the proper holding of the primary election." TEX. ELEC. CODE § 173.082(b). The Code also specifies the procedural requirements to obtain reimbursement. See id . §§ 173.081–.085.

Before an expense can be reimbursed, the party must submit a "written statement of estimated expenses to be incurred in connection with a primary election" to the secretary of state. Id . § 173.081(a). The statement must be submitted to the secretary by the appropriate party authority at least forty-five days before the primary election regardless of whether the political party is seeking reimbursement. Id . § 173.081(a), (c)(2). The secretary of state must review a timely filed statement to determine the expense items and amounts to approve. Id . § 173.082(a). If an expense is not approved or is approved in a reduced amount, the secretary must promptly notify the party of his decision. Id . § 173.082(c). If an expense is approved, the party receives reimbursement from the state in installments. Id. § 173.083. A final report itemizing the actual expenses incurred by the party is due thirty days after the primary election or runoff unless the secretary grants an extension for good cause, and the final installment may not be paid until after the final report. Id. §§ 173.083(d), 173.084. If the actual expenditure for an item exceeds the initial estimate, the secretary may approve reimbursement for the excess if he determines that good cause justifies the payment. Id. § 173.085. If the secretary denies reimbursement or approves less than the requested amount, the political party may challenge the decision in a suit against the secretary of state in Travis County district court. Id. § 173.086(a).

Although Brimer's suit came four months after the primary and the political party's request for reimbursement of legal expenses came later still, the secretary of state agreed not to contest the reimbursement request on the issue of timeliness. This concession in a Rule 11 agreement was for the stated purpose of expediting the case. Thus, instead of raising additional procedural issues, the secretary stood on the initial reason for rejecting the expense—that the Brimer litigation expenses were "unrelated to the administration of the primary election."

The case was further expedited by stipulated facts, including a stipulation that the secretary of state had previously reimbursed certain legal expenses in connection with the primary election, including reimbursement for legal expenses incurred by the party in defending the Cerda litigation, the pre-primary attack on Davis's candidacy.³ Notwithstanding the litigants' efforts to expedite a merits-based decision on the political party's reimbursement claim, the secretary argues here that the claim should be dismissed on sovereign-immunity grounds because the stipulations at trial omitted a necessary jurisdictional fact.

As noted, the Election Code requires a political party to file with the secretary a written estimate of anticipated primary election expenses. See TEX. ELEC. CODE §§ 173.081(a), .082(a). The secretary maintains that the required estimate is a jurisdictional prerequisite and that proof of compliance is required to waive immunity from suit. In other words, the secretary maintains that he is immune from suit in his official capacity because the political party failed to obtain his stipulation that a written estimate of anticipated primary-election expenses was filed with his office, as the Election Code requires.

The court of appeals rejected a similar argument, deducing from the parties' stipulations about the secretary paying other primary expenses, including other legal expenses, either that the political party "met the statutory requirement by filing a statement of estimated primary expenses or the secretary of state waived...