Tarrant Cnty. Democratic Party v. Steen

• Decision Date: 07 May 2014
• Docket Number: No. 04–13–00069–CV.,04–13–00069–CV.
• Parties: TARRANT COUNTY DEMOCRATIC PARTY; Steve Maxwell, In His Official Capacity as Chair of the Tarrant County Democratic Party; Texas Democratic Party; and Gilberto Hinojosa, In His Official Capacity as Chair of the Texas Democratic Party; Appellants v. John STEEN, in his official capacity as Secretary of State of Texas, Appellee.
• Court: Texas Court of Appeals

434 S.W.3d 188

TARRANT COUNTY DEMOCRATIC PARTY; Steve Maxwell, In His Official Capacity as Chair of the Tarrant County Democratic Party; Texas Democratic Party; and Gilberto Hinojosa, In His Official Capacity as Chair of the Texas Democratic Party; Appellants

v.John STEEN,¹ in his official capacity as Secretary of State of Texas, Appellee.

No. 04–13–00069–CV.

Court of Appeals of Texas, San Antonio.

Feb. 19, 2014.

Opinion Dissenting from En Banc Reconsideration May 7, 2014.

Chad W. Dunn, Brazil & Dunn, Houston, TX, Max Renea Hicks, Law Office of Max Renea Hicks, Austin, TX, for Appellants.

Angela Veronica Colmenero, Erika Kane, Assistant Attorney General, Texas Attorney General's Office, Austin, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, PATRICIA O. ALVAREZ, Justice, LUZ ELENA D. CHAPA, Justice.

OPINION

Opinion by: PATRICIA O. ALVAREZ, Justice.

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). SeeTex. Elect. Code. Ann.. §§ 173.001(a), .086(a) (West 2010).

The Tarrant County Democratic Party (TCDP), the Texas Democratic Party (TDP), and their respective chairs² sought reimbursement from the Texas Secretary of State for their attorney's fees incurred in defending an election contest lawsuit filed by Kim Brimer, a Republican candidate. Brimer's suit challenged Wendy Davis's eligibility to be the Democratic candidate for State Senate District 10. When the Secretary of State denied Appellants' attorney's fees reimbursement request, Appellants sued the Secretary of State³ in Travis County district court. After a bench trial on an agreed statement of facts, the trial court rendered a take-nothing judgment against Appellants.

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 against Appellants by a Republican candidate contesting Davis's eligibility as a candidate in the 2008 general election (the Brimer lawsuit), and (3) the suit filed by Appellants against the Secretary of State for reimbursement of attorney's fees incurred in defending the Brimer lawsuit (the underlying lawsuit).

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.⁴

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. SeeTex. 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.”).

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 Brimer⁵ sued TCDP's and TDP's chairs in Tarrant County district court. See generally Brimer v. Maxwell, 265 S.W.3d 926 (Tex.App.-Dallas 2008, no pet.)(Brimer appeal). Brimer raised the same constitutional challenge to Davis's eligibility for legislative office as did the Cerda petitioners. Specifically, Brimer argued Davis was constitutionally ineligible for the legislature at the time she filed her application because she was still a Fort Worth City Council office holder. Brimer sought to remove Davis's name from the general election ballot. Brimer's suit was unsuccessful; Davis's name remained on the general election ballot and she won the race for State Senate District 10.

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 answeredwith a general denial and asserted an “affirmative defense” of sovereign immunity. The case was tried to the bench on agreed stipulated facts. The trial court rendered a take-nothing judgment against Appellants. Appellants appeal the trial court's judgment.

Standard of Review

We review a bench trial on agreed stipulated facts de novo. Amaro v. Wilson Cnty., 398 S.W.3d 780, 784 (Tex.App.-San Antonio 2011, no pet.); Panther Creek Ventures, Ltd. v. Collin Cent. Appraisal Dist., 234 S.W.3d 809, 811 (Tex.App.-Dallas 2007, pet. denied). “We conclusively presume that the parties have brought before the court all facts necessary for the presentation and adjudication of the case.” Amaro, 398 S.W.3d at 784; accord Panther Creek, 234 S.W.3d at 811; Cummins & Walker Oil Co. v. Smith, 814 S.W.2d 884, 886 (Tex.App.-San Antonio 1991, no writ). We are bound by the agreed facts, Markel Ins. Co. v. Muzyka, 293 S.W.3d 380, 384 (Tex.App.-Fort Worth 2009, no pet.); Panther Creek, 234 S.W.3d at 811, but we may make an inference or find a fact “embraced in the agreement [if] as a matter of law such further inference or fact is necessarily compelled by the agreed upon evidentiary facts.” See Lawler v. Lomas & Nettleton Mortg. Investors, 691 S.W.2d 593, 595 (Tex.1985); Cummins & Walker, 814 S.W.2d at 886. In sum, we review the stipulated facts and the judgment to determine whether the trial court “correctly applied the law to the agreed stipulated facts.” Amaro, 398 S.W.3d at 784; Panther Creek, 234 S.W.3d at 811.

If the applicable questions of law involve statutory interpretation, we begin with the statute's plain language. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.2008); City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). “[W]e look first and foremost to the plain meaning of the words used.” First Am. Title, 258 S.W.3d at 631; accord TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). To determine the legislature's intent, we read the statute as a whole. TGS–NOPEC, 340 S.W.3d at 439; State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). If the plain language is clear and unambiguous, we do not invoke rules of construction. City of Rockwall, 246 S.W.3d at 626. We apply the statute's plain language “unless that interpretation would lead to absurd results.” Id. at 625–26; accord TGS–NOPEC, 340 S.W.3d at 439.

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, 144 Tex. 360, 370, 190 S.W.2d 709, 715 (1945); accord Patterson–UTI Drilling Co. v. Webb Cnty. Appraisal Dist., 182 S.W.3d 14, 16 (Tex.App.-San Antonio 2005, no pet.).

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). ⁶SeeTex. Elect. Code Ann.. §§ 173.001(a), .086(a) (West 2010). They also seek reimbursement of their attorney's fees in the underlying lawsuit and this appeal based on their declaratory judgment action. SeeTex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 2008) (authorizing reimbursement of attorney's fees in declaratory judgment actions). In response, the Secretary of State asserts immunity from suit because Appellants failed to meet the statutory prerequisites and thus their suit is jurisdictionally barred. The Secretary of State also asserts that Appellants may not bring a declaratory judgment action because they do not meet the ultra vires exception.

We first address whether the Secretary of State's immunity from suit may be waived by section 173.086(a), and then whether Appellants' suit is jurisdictionally barred by...