in Re George E. Risner ( 2014 )

Opinion issued June 27, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00497-CV
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IN RE GEORGE E. RISNER, Relator
Original Proceeding on Petition for Writ of Injunction
MEMORANDUM OPINION
On June 23, 2014, relator, George E. Risner, the Democratic nominee for the
office of Harris County Justice of the Peace, Precinct 2, Place 2, filed a petition for
writ of injunction and an emergency motion for temporary relief in this Court.1
See TEX. GOV’T CODE ANN. § 22.221 (West 2004); TEX. R. APP. P. 52.1, 52.3,
1
The underlying case is The Honorable George E. Risner v. Harris County
Republican Party and Jared Woodfill, Chair, cause number 2014-02621, in the
269th District Court of Harris County, Texas, the Honorable Don Burgess
presiding.
52.10. In the petition, Risner asks this Court to issue a writ of injunction
prohibiting “the Harris County Republican Party and its Chair, Paul Simpson[2],
and their successors, officers, agents, servants, employees, attorneys, and those in
active concert or participation with them, from certifying Leonila Salazar’s name
for the November 2014 General Election Ballot as the Republican nominee for the
office of Harris County Justice of the Peace, Precinct 2, Place 2.” We deny
Risner’s petition and his request for temporary relief.
Background
Real party in interest, Leonila Salazar, filed an application for a place on the
Harris County Republican Party’s primary ballot for the position of Harris County
Justice of the Peace for Precinct 2, Place 2 on December 6, 2014. The Harris
County Republican Party accepted Salazar’s application and certified her name to
be placed on the primary ballot on December 13, 2013.
On January 21, 2014, Risner filed an “Original Petition and Application for
Temporary Restraining Order and Temporary and Permanent Injunctions” in the
trial court. In his petition, Risner contended that numerous signatures on the
petition accompanying Salazar’s application for a place on the ballot were not
valid and that her petition contained less than the requisite 250 valid signatures.
2
According to the petition, Paul Simpson has now succeeded Jared Woodfill as the
Chair of the Harris County Republican Party.
2
See TEX. ELEC. CODE ANN. § 172.021(e) (West Supp. 2013). Risner therefore
argued that the Harris County Republican Party and Jared Woodfill, as the party’s
then-Chair, violated the Election Code by certifying Salazar’s name for inclusion
on the ballot. Risner requested the issuance of a temporary restraining order, a
temporary injunction, and a permanent injunction prohibiting “Woodfill and the
Harris County Republican Party from placing the name of Olivares-Salazar on the
Republican primary ballot or certifying her name for the general election ballot as
the Republican nominee for the office of Harris County Justice of the Peace,
Precinct 2, Place 2.”
Risner and Salazar were both unopposed in their respective primaries. 3
Risner received a majority of the votes cast for Harris County Justice of the
Peace, Precinct 2, Place 2 in the Democratic Party Primary Election and Salazar
received a majority of the votes cast for Harris County Justice of the Peace,
Precinct 2, Place 2 in the Republican Party Primary Election.
The trial court issued an “Order on Temporary Injunction” on April 23,
2014. In the order, the trial court “enjoin[ed] Defendants Harris County
3
Risner contends in his petition that both Risner and Salazar “were unopposed
candidates in the Democratic and Republican primaries, respectively.” Because it
is relevant to a determination of our jurisdiction and is capable of accurate and
ready determination by resort to the Harris County Clerk’s election division
website, we take judicial notice that Risner and Salazar were unopposed in their
primaries. See TEX. GOV’T CODE ANN. § 22.220(c) (West Supp. 2013); TEX. R.
EVID. 201; Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex.
2012); SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex.
App.—Dallas 1991, no writ).
3
Republican Party and its Chairman, Jared Woodfill, and their successors, officers,
agents, servants, employees, attorneys, and those in active concert or participation
with them, from certifying Leonila Salazar’s name for the November 2014 General
Election Ballot as the Republican nominee for the office of Harris County Justice
of the Peace, Precinct 2, Place 2.”
On June 11, 2014, the trial court issued its final judgment, denying Risner’s
request for a permanent injunction, granting a request by Salazar to “cure her
defective application,” and ordering “the Harris County Republican Party and the
Chairperson of the Harris County Republican Party . . . to certify Leonila Olivarez-
Salazar’s name for inclusion on the November 4, 2014 general election ballot.”
The trial court then stayed its order requiring Salazar’s name to be certified, stayed
“the dissolution, if any, of the Court’s modified temporary injunction,” and
prohibited Salazar’s name from being certified until after 12:59 p.m. on July 2,
2014. Finally, the trial court authorized Risner to suspend enforcement of its
judgment by posting security in an amount of $1,000.00. See TEX. R. APP. P.
24.2(a)(3).
Risner timely appealed from the trial court’s judgment on June 20, 2014.
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Analysis
This Court has authority to issue writs of injunction if necessary to enforce
its jurisdiction or to preserve the subject matter of an appeal. See TEX. GOV’T
CODE ANN. § 22.221(a); Dallas Morning News v. Fifth Court of Appeals, 842
S.W.2d 655, 658 (Tex. 1992); Becker v. Becker, 639 S.W.2d 23, 24 (Tex. App.—
Houston [1st Dist.] 1982, no writ). This Court may not, however, issue an
injunction merely to preserve the status quo pending appeal. See Becker, 639
S.W.2d at 24.
In his petition, Risner contends that this appeal will become moot unless we
issue a writ of injunction, because “the Chair will be able to certify Salazar for the
ballot” after the trial court’s stay expires on July 2, 2014.
Contrary to Risner’s contention, his appeal will not be rendered moot absent
injunctive relief. Both Risner and Salazar were unopposed in their primaries and,
absent injunctive relief, they will face each other in the November general election.
Further, there is time to resolve Risner’s appeal and prepare ballots before the
November general election. “Issuance of an injunction at this point would not
interfere with the November general election. The only limitation on the authority
to grant injunctive relief is the election schedule itself.” Sachtleben v. Bennett, No.
14-10-00322-CV, 2010 WL 3168395, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 12, 2010, no pet.) (mem. op.) (citing In re Gamble, 71 S.W.3d 313, 318 &
5
n.17 (Tex. 2002)). Accordingly, Risner’s appeal is not now moot, nor will it be
rendered moot if Salazar’s name is certified for the November 2014 general
election ballot. See id. at *2; Triantaphyllis v. Gamble, 93 S.W.3d 398, 406–07
(Tex. App.—Houston [14th Dist.] 2002, pet. denied); see also In re Angelini, 186
S.W.3d 558, 561 (Tex. 2006) (“As both Angelini and Bustamante are unopposed in
their respective primaries, there should be ample time before the general election in
November for a trial court to make its findings, and for any appellate review to be
conducted first in the court of appeals rather than this Court.”); Fitch v. Fourteenth
Court of Appeals, 834 S.W.2d 335, 337 (Tex. 1992) (determining that controversy
was not moot despite fact that primary election had occurred); Cook v. Tom Brown
Ministries, 385 S.W.3d 592, 608 (Tex. App.—El Paso 2012, pet. denied) (“We
disagree with the City Clerk’s assertion that the issues are moot because the
petitions have been certified.”).
Further, the trial court’s temporary injunction prohibits Salazar’s name from
being certified for the November 2014 general election ballot. The trial court
issued a temporary injunction on April 23, 2014, which prohibited the certification
of “Salazar’s name for the November 2014 General Election Ballot” and did not
specify any terms under which the temporary injunction would expire. See TEX. R.
CIV. P. 683. The trial court’s final judgment states that “the dissolution, if any, of
the Court’s modified temporary injunction [is] hereby STAYED,” grants Risner
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the ability to supersede the judgment, fixes the amount of security at $1,000.00,
and states that the “security Plaintiff has already tendered in conjunction with the
Court’s issuance of the temporary injunction shall constitute the security for this
supersedeas.” See TEX. R. APP. P. 24.1, 24.2(a)(3). Therefore, the temporary
injunction is still in force, because Risner has timely filed a notice of appeal and,
by virtue of the trial court’s order stating that the security Risner tendered for the
temporary injunction shall constitute the security for the supersedeas, has posted
the required security. See Trice v. State, 712 S.W.2d 842, 852–53 (Tex. App.—
Waco 1986, writ ref’d n.r.e.); G&R Invs. v. Nance, 588 S.W.2d 804, 805 (Tex.
App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.); Dallas Cowboys Football
Club, Inc. v. Harris, 348 S.W.2d 37, 40 (Tex. App.—Dallas 1961, no writ).
Accordingly, Risner has an adequate remedy by way of appeal, and we are not
authorized to grant the relief requested. See Holloway v. Fifth Court of Appeals,
767 S.W.2d 680, 684 (Tex. 1989); In re Young, No. 01-13-01011-CV, 2013 WL
6670861, at *1 (Tex. App.—Houston [1st Dist.] Dec. 17, 2013, orig. proceeding)
(mem. op.).
Conclusion
Based on the foregoing, we deny the petition for writ of injunction and the
emergency motion for temporary relief.
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PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown.
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