In re Francis

• Decision Date: 27 January 2006
• Docket Number: No. 06-0040.,06-0040.
• Citation: 186 S.W.3d 534
• Parties: In re the Honorable Robert FRANCIS, Relator.
• Court: Texas Supreme Court

186 S.W.3d 534

In re the Honorable Robert FRANCIS, Relator.

No. 06-0040.

Supreme Court of Texas.

Argued January 24, 2006.

Decided January 27, 2006.

COPYRIGHT MATERIAL OMITTED

Doug W. Ray, Randall Buck Wood, Ray Wood & Bonilla, L.L.P., Austin, Deborah G. Hankinson, Rick Thompson, Law Offices of Deborah Hankinson PC, Dallas, for Relator.

Patrick O. Keel, Larry F. York, York Keller & Field, L.L.P., Edward M. Shack, Donna G. Davidson, Margaret A. Wilson, Frank Reilly, Michael C. Crowley, Potts & Reilly, L.L.P., Austin, for Real Party.

Justice BRISTER delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice MEDINA and Justice GREEN joined.

With the arrival of the biennial primary season, we must address once again whether the Texas Election Code requires minor defects in a candidate's papers to be addressed by eliminating the error or the candidate.¹ In this case, a candidate for the Texas Court of Criminal Appeals filed a 225-page petition signed by hundreds of eligible voters, more than enough to have his name placed on the Republican primary ballot. But due to a clerical error, several pages did not state that he was running for "Place 8" on that Court. The Republican Party of Texas listed him as a candidate, but his name was removed by a Travis County district judge upon challenge by another Republican candidate.

Candidates have a duty to file applications for office that comply with the Texas Election Code. But the ballot is not restricted to those who never make a mistake. To the contrary, the Election Code anticipates that candidates will occasionally err and specifically requires party officials to assist them so that no candidate is excluded from the ballot unnecessarily. When a defect could have easily been cured had party officials properly performed their statutory role, nothing in the Code requires exclusion as a mandatory remedy. We hold that the trial court erred in concluding that it does.

I

Candidates for statewide judicial office in Texas must file an application accompanied by a petition with signatures of at least 50 eligible voters from each of the State's 14 appellate districts.² The following statement must appear at the top of each page of the petition:

I know that the purpose of this petition is to entitle (insert candidate's name) to have his or her name placed on the ballot for the office of (insert office title, including any place number or other distinguishing number) for the (insert political party's name) primary election. I understand that by signing this petition I become ineligible to vote in a primary election or participate in a convention of another party, including a party not holding a primary election, during the voting year in which this primary election is held.³

On December 29, 2005 — four days before the January 2nd filing deadline⁴ — Relator Robert Francis, currently Judge of the Dallas County Criminal District Court No. 3, filed his application and an accompanying petition as a candidate for the Texas Court of Criminal Appeals. His application and 198 pages of his petition noted that he sought election to Place 8 on that Court. An additional 27 pages of his petition listed the same court, but omitted the place number. Because he had obtained far more signatures than the statutory minimum, 15 of the defective pages were superfluous. But 12 of the errant pages were concentrated in one appellate district, leaving 95 of his 122 signatures from that district on pages without a place number.

Republican and Democratic candidates for statewide judicial office must file their applications and petitions with the "state chair" of the party in whose primary they choose to run.⁵ After filing, state law provides that the state chair "shall review" an application and accompanying petition to determine whether they comply with statutory requirements "as to form, content, and procedure."⁶ Further, that review "shall be completed as soon as practicable,"⁷ or "not later than the fifth day" if the application does not include a petition.⁸ If the documents do not comply with the statutory requirements, the state chair "shall reject the application and immediately deliver to the candidate written notice of the reason for the rejection."⁹

In this case, Francis personally delivered his application and petition to the office of the Chair of the Republican Party of Texas. The State Chair's appointee assured Francis that the Party would review the documents before the January 2nd filing deadline. On December 30, the Party completed its review and notified Francis that his filings were in order and his name would be posted as a candidate by the end of the day — which it was.

Three days later, and thirty minutes before the filing deadline, an attorney for another candidate notified Party officials about the omission of "Place 8" from several pages of Francis's petition. On Friday, January 6, 2006, the Party Chair rejected this challenge and certified Francis as a candidate.¹⁰

On Monday, January 9, Travis County District Judge John Dietz reversed that ruling, signing a temporary injunction that ordered the Republican Party to "decertify" Francis and enjoined the Party from listing him as a candidate. On January 11, Francis filed an interlocutory appeal, and the next day, Francis also filed an emergency petition for writ of mandamus in the court of appeals. On January 13, the court of appeals denied Francis's petition for writ of mandamus. That same day, Francis filed this emergency petition for writ of mandamus, asking this Court to order the trial court to vacate its temporary injunction, and to order the Republican Party Chair to put Francis's name on the primary ballot. The interlocutory appeal of the temporary injunction remains pending in the court of appeals.

This Court may review a temporary injunction from a petition for writ of mandamus when an expedited appeal would be inadequate; if, for example, the appeal could not be completed before the issue became moot.¹¹ In addition, Section 273.061 of the Texas Election Code gives the Court jurisdiction to issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election.¹² In a mandamus action, this Court reviews the trial court's actions to determine whether it clearly abused its discretion.¹³ A trial court has no discretion to determine what the law is.¹⁴

II

There is no disagreement about the material facts.

First, the record establishes that Francis's application and petition complied in all respects with all statutory requirements, except that 27 pages of his 225-page petition lacked one requirement — the designation of a place number.

Second, the State Chair's appointee testified that she reviewed Francis's petition, but failed to discover the occasional omission of "Place 8." Significantly, there are three seats on the Court of Criminal Appeals up for election this year.

Third, Francis proved that, had his petition been rejected for this defect on December 30th rather than approved, he could have cured it before the filing deadline. Within 24 hours after service of his opponent's temporary injunction pleadings, Francis filed new petitions in the trial court that included the place designation, signed by most of the same voters who signed the original defective ones.

Based on this undisputed evidence, the trial court concluded that any omission of the statutory requirements for a petition rendered all signatures on that page invalid, that such errors could not be cured even if the State Chair had approved the petitions, and that Francis could not be certified as a candidate. We agree with the first legal conclusion, but disagree with the others.

A

We agree that the omission of any statutorily required information on a petition renders signatures on that petition invalid.¹⁵ Section 172.027 of the Election Code says that a candidate's place number "must appear at the top of each page of a petition." Section 141.063(a)(4) says that a signature on a petition is invalid unless "each statement that is required by this code . . . appears, at the time of signing, on the page on which the signature is entered." As the Code requires a place number on each page, and declares invalid any signatures on pages without it, the trial court correctly concluded that all but 27 signatures from the district involved in this challenge are invalid.

B

We disagree, however, that invalid signatures cannot be cured. The Election Code never explicitly says what happens when a state chair erroneously approves a petition containing invalid signatures, but discovers the error later. As with other statutes, "the consequence of noncompliance is not necessarily punishment."¹⁶

In primary elections, statewide judicial candidates are certified for the ballot by the party's state chair.¹⁷ Section 172.028(c) provides that a candidate's name "may not be certified" by the party chair if the candidate has filed for more than one office,¹⁸ or if a candidate withdraws, dies, or is "declared ineligible."¹⁹ But the Code never says that a candidate must be declared ineligible when petition signatures are invalid. To the contrary, while party chairs should reject such a petition,²⁰ if it is erroneously accepted, it cannot be challenged once early voting begins.²¹

This is not the only statute that says something "must" be done, but does not say what happens if it is not. This Court has considered several such statutes,²² as has the United States Supreme Court.²³ In Hines v. Hash, for example, we addressed the pre-suit notice requirement in the Texas Deceptive Trade Practices Act, which was added to the statute in 1977, and from which the statutory penalty (loss of treble damages) was removed two years later.²⁴ We held the pre-suit notice requirement was "clearly mandatory, but that feature alone does not determine the consequences for failure to comply with it."²⁵ I...