In re Bishop
| Decision Date | 06 March 2020 |
| Docket Number | No. 05-18-01333-CV,05-18-01333-CV |
| Parties | IN RE BRUCE BISHOP, ASHLEY HUTCHESON, DALLAS COUNTY REPUBLICAN PARTY, AND MISSY SHOREY, Relators |
| Court | Texas Court of Appeals |
I concur in the withdrawal of the panel opinion in this case. I write separately, however, to respond to Justice Schenck's dissent, which—although acknowledging the power of the Court to withdraw the panel opinion under Texas Rule of Appellate Procedure 42.1(c)—takes exceptional license to expound on the merits of the underlying issue and, in doing so, wrongly and injuriously interprets the Texas Election Code. I also write to address Justice Bridges' dissent, which joins in Justice Schenck's erroneous conclusion.
Relators sought a writ of mandamus directing the trial court to vacate its no-answer default judgment declaring Ashley Hutcheson, the Republican candidate for Dallas County Justice of the Peace, Precinct 2, Place 1, in the November 6, 2018 general election, ineligible for the office because she did not reside in the district as required by the Texas Election Code. See TEX. ELEC. CODE § 141.001(a)(5).
Margaret O'Brien, Hutcheson's Democratic general election challenger for the justice of the peace position, filed the underlying lawsuit challenging Hutcheson's residency on September 19, 2018. She sought (1) a declaratory judgment that Hutcheson was ineligible to assume office should Hutcheson win the upcoming November 6 general election, and (2) injunctive relief enjoining election officials from "certifying [her] as the winner of the general election," "signing a Certificate of Election certifying [her] name as the Justice of the Peace, Precinct 2, Place 1," and "administering an oath of office to [her]" in the event Hutcheson should win.1
Hutcheson failed to timely answer and, on October 26, 2018, the district court signed a default judgment granting O'Brien the relief she requested. Significantly,the judgment was signed prior to the general election that would determine which candidate for the office was the victor.
This original proceeding for a writ of mandamus followed. It sought vacatur of the district court's no-answer default. On December 17, 2018, a panel of the Court conditionally granted the writ.
In concluding the trial court's default judgment was void and conditionally granting relators' petition as a result, the panel characterized O'Brien's suit as an "election contest." The panel correctly noted that default judgments in such proceedings are expressly prohibited by section 221.004 of the Texas Election Code. See TEX. ELEC. CODE § 221.004 ().2 In conditionally granting the writ and directing the trial court to vacate the underlying judgment, the panel relied on this no-default provision. O'Brien's suit, however, was not an election contest, and the panel's reliance on the no-default provision—applicable only to election contests—was erroneous.
An election contest is not an ordinary lawsuit but is a special legislative proceeding to provide a remedy for elections tainted by fraud, illegality, or other irregularity. Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999); Rossano v. Townsend, 9 S.W.3d 357, 361 (Tex. App.—Houston [14th Dist.] 1999, no pet.)(citing Duncan v. Willis, 302 S.W.2d 627, 630 (Tex. 1957)). As this Court has recognized, "[e]lection contests are creatures of statute, and the power of a trial court to consider such contests exists only to the extent authorized by statute." Nichols v. Seei, 97 S.W.3d 882, 883 (Tex. App.—Dallas 2003, no pet.); see also De La Paz v. Gutierrez, No. 13-18-00377-CV, 2018 WL 5289553 (Tex. App.—Corpus Christi-Edinburg Oct. 25, 2018, no pet.) (mem. op.); City of Houston v. Bryant, 516 S.W.3d 47, 51 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
Initially, an election contest may not be filed "earlier than the day after election day" or "later than the 30th day after the date the official result of the contested election is determined," unless it is required to be filed earlier under other provisions of section 232.008. See TEX. ELEC. CODE § 232.008(a)-(c). Simply, "[a] party cannot file such a suit until after the election." Blum, 997 S.W.2d at 262. O'Brien's suit was filed substantially before the general election and, in fact, was decided before election day. It was not, nor could it have been, a viable election contest under these circumstances.
Further and fundamentally, in an election contest, a court is limited to addressing the specific areas set forth in the election code. See, e.g., City of Granite Shoals v. Winder, 280 S.W.3d 550, 557-58 (Tex. App.—Austin 2009, pet. denied). The narrow purpose of an election contest is to determine "whether the outcome of the contested election, as shown by the final canvass, is not the true outcome." TEX.ELEC. CODE § 221.003(a). In making this determination, a tribunal is restricted to ascertaining whether:
Id. O'Brien's residency challenge to Hutcheson's candidacy implicated no permissible ground for an election contest. "Therefore, a challenge that does not concern whether the outcome of the election was incorrect for one of the four reasons listed in the statute is, by definition, not an election contest." Winder, 280 S.W.3d at 557.
Justice Schenck's dissent incorrectly assumes that the term "election contest" is undefined by title 14, and it is this mistaken assumption that underlies his dissent's disregard of the statute itself and controlling precedent. While it is true that title 14 includes no separate definitional provisions, section 221.003 provides an unequivocal answer to the meaning of "election contest." An election contest is an action "to ascertain whether the outcome of the contested election . . . is not the true outcome because" "illegal votes were counted"; or "an election officer or other person officially involved in the administration of the election . . . prevented eligible voters from voting," "failed to count legal votes," or "engaged in other fraud orillegal conduct or made a mistake." TEX. ELEC. CODE § 221.003(a). Like the court in Winder, I conclude that unless one of these grounds forms the basis of the lawsuit, it is not an election contest within the meaning of title 14. Winder, 280 S.W.3d at 557.
Nevertheless, Justice Schenck's dissent necessarily misconstrues title 14 by asserting that the general provisions of chapter 221, in some unexplained way, operate extraterritorially to encompass disputes over the entire electoral process, and not just those delineated in section 221.003(a) of title 14. To reach this conclusion, the dissent disregards controlling precedent—of the supreme court and this Court—that an election contest is a "special proceeding," Blum, 997 S.W.2d at 262, that operates "only to the extent authorized by statute," Nichols, 97 S.W.3d at 883.
Ignoring recent supreme court and appellate court case law established after the passage of the election contest provisions of our current election code, Justice Schenck boldly asserts the panel opinion was "in keeping with long and unbroken precedent of the Texas Supreme Court," yet cites only one supreme court case, Dickson v. Strickland, 265 S.W. 1012 (Tex. 1924), to support his flawed proposition that provisions of title 14 emanate from and beyond the boundaries of title 14 to form some sort of penumbral overlay on the entire election code. Dickson pre-dates our current statutory scheme by more than 60 years, and it does not support the application of the term "election contest" that governs us today.
Justice Schenck's dissent also cites Bickley v. Lands, 288 S.W. 514 (Tex. App.—Dallas 1926, no writ), as support. Yet, Bickley, like Dickson, pre-dates our current statutory scheme by six decades, and the action in Bickley occurred after the vote in question and did not involve the no-default provision of our current law. Ellis v. Vanderslice, 486 S.W.2d 155 (Tex. App.—Dallas 1972, no writ), also pre-dates current law and involved a local option election governed by state liquor laws. Id. at 156-57. It did not address the question presented here. Polk v. Vance, 244 S.W.2d 869 (Tex. App.—Dallas 1951, no writ), also pre-dates the current legislative enactment and did not address the issue at hand. Id. at 870. None of these cases has anything to do with the question before us, namely: Does the no-default provision of title 14 apply to suits that are not subject to title 14? Justice Bridges' dissent likewise ignores controlling precedent. His dissent cites not one case that post-dates the enactment of our current law. Strikingly, both dissents ignore every authoritative pronouncement issued after the enactment of our current code provisions governing election contests. All in all, both Justice Schenck's and Justice Bridges' dissents manifest a lack of fidelity to principles of statutory construction, higher court authority, our precedent, and the record—the latter of which reveals that no party in this case argued that the no-default provision of title 14 applied in these circumstances.
Both dissents disregard the statute. They fail to read title 14 as a whole, which makes clear that an "election contest" is an umbrella term used to describe fivespecific types of contests recognized in title 14. An election contest is either a "contest for office" under chapter 232, a "contest on [a] measure" under chapter 233, a "contest for state senator or representative" under chapter 241, a "contest for constitutional executive office" under chapter 242, or a...
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