in Re: Bruce Bishop ( 2020 )

Concurring Opinion Filed March 6, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01333-CV
IN RE BRUCE BISHOP, ASHLEY HUTCHESON, DALLAS COUNTY
REPUBLICAN PARTY, AND MISSY SHOREY, Relators
Original Proceeding from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-14298
CONCURRING OPINION
Opinion by Justice Molberg
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.
I.
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,
1
In O’Brien’s earlier challenge to Hutcheson’s right to appear on the general election ballot, this Court
noted that the deadline for printing ballots was imminent and therefore declined to take any action that
would interfere with the orderly process of the election. In re O’Brien, No. 05-18-00984-CV, 2018 WL
4141484, at *2 (Tex. App.—Dallas Aug. 29, 2018, orig. proceeding) (mem. op.).
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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.
II.
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 (“A default judgment may not be rendered in an
election contest.”).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.)
2
Section 221.004 is a part of title 14 of the election code, which relates exclusively to election contests.
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(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.
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ELEC. CODE § 221.003(a). In making this determination, a tribunal is restricted to
ascertaining whether:
(1) illegal votes were counted; or
(2) an election officer or other person officially involved in the
administration of the election:
(A) prevented eligible voters from voting;
(B) failed to count legal votes; or
(C) engaged in other fraud or illegal conduct or made a mistake.
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 or
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illegal 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.
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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 five
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specific 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 “contest for presidential
electors” under chapter 243. Chapter 221 (“General Provisions”), contained in
subtitle A, applies to all five types of election contests. The state senate and house
are vested with exclusive jurisdiction (jointly or separately, depending upon the
nature of the contest) over contests involving certain general and special elections;
the governor has exclusive jurisdiction over contests involving presidential electors;
and the district courts have exclusive jurisdiction over all other contests for office,
as well as jurisdiction over contests on non-advisory measures. TEX. ELEC. CODE §
221.002(a)–(c).3
Subtitle B of title 14, which consists of chapters 231, 232 and 233, provides
procedures and requirements for election contests (whether for office or on a
measure) filed in the district court. Each succeeding chapter relating to the various
types of contests, found in Subtitle C (“Contests in Other Tribunals”), provides
specific procedures and requirements for the resolution of such contests. For
3
A full reading of title 14 reveals the district court has exclusive jurisdiction over all election contests
relating to ballot measures that are not for advisory purposes only, and all contests for office, other than for
general elections involving constitutional executive offices, general and special elections for state senator
and state representative, and elections for presidential electors. Expressly excluded from title 14’s purview
are general and special elections for the offices of U.S. Senator and Representative, presidential primary
elections, and elections on measures that are merely advisory. TEX. ELEC. CODE. § 221.001(1)–(3).
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example, in a contest for state senator or representative, a person contesting an
election must file “the petition with the secretary of state not later than the seventh
day after the date the official result . . . is determined,” but not earlier than “the day
after the date of the . . . election.” Id. § 241.003(b), (c). General election contests
for constitutional executive offices must comply with the deadlines set forth in
chapter 241. Id. § 242.002(a). Contests for presidential electors must be filed with
the secretary of state “not later than the 10th day after the date the official result of
the . . . election is determined,” but not earlier than “the day after the date of the . . .
election.” Id. § 243.003(b), (c).
The term “election contest” is clearly defined in title 14, and a “contest for
office” is not something apart from an “election contest,” as Justice Schenck’s
dissent necessarily implies. A contest for office is an election contest.
Neither by timing nor subject matter was the underlying action an election
contest. O’Brien is thus correct that the panel erred in concluding her suit was an
election contest and relying on the no-default provision of title 14 of the election
code to order the trial court to vacate the default judgment. Rather, O’Brien’s was
a typical civil action seeking declaratory and injunctive relief to which the no-default
provision of section 221.004 is inapplicable.4
4
I likewise do not endorse Justice Schenck’s conclusion that the issue before us is moot because of the
parties’ resolution, but I need not address it in detail here. It is noteworthy, however, that Justice Schenck
concludes an exception to the mootness doctrine does not exist because the dispute is not likely to recur
between the same parties. Assuming this is a requirement for application of the exception to the mootness
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III.
While the panel relied on an incorrect underpinning for its decision, the result
it reached in conditionally granting the writ nevertheless was correct for the
following reason: the trial court’s default judgment granting O’Brien’s request for
declaratory and injunctive relief was void because the court’s final determination
came before the matter was ripe.
Ripeness implicates subject matter jurisdiction. Perry v. Del Rio, 66 S.W.3d
239, 250–51 (Tex. 2001) (orig. proceeding); Patterson v. Planned Parenthood, 971
S.W.2d 439, 442 (Tex. 1998). While a premature claim may become ripe as a result
of a subsequently occurring event (just like mootness may develop for the same
reason), Perry, 66 S.W.3d at 251, O’Brien’s claims never became ripe, and therefore
justiciable, prior to their adjudication by the trial court. “The ripeness doctrine
serves to avoid premature adjudication.” Patterson, 971 S.W.2d at 442; see also
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000).5
doctrine, the reality is general election cases like this one are almost always between or involve the
Republican and Democratic parties, despite the names of the candidates.
5
In theory, O’Brien’s claims against Hutcheson might have ripened once the election was completed,
had her claims remained pending and not been adjudicated in advance of the election. As it turns out, those
claims nevertheless would have become moot because O’Brien won the election. It is notable, however,
that had Hutcheson won the election, O’Brien’s suit, if not amended, would face the challenge that O’Brien
lacked standing. See Norville v. Parnell, 118 S.W.3d 503, 504 (Tex. App.—Dallas 2003, pet. denied)
(losing general election candidate lacks standing to challenge winner’s certification for office on
ineligibility grounds). Despite this, Justice Bridges’ generalized intimation that challenges based on
residency do not survive an election is wrong. See, e.g., McDuffee v. Miller, 327 S.W.3d 808 (Tex. App.—
Beaumont 2010, no pet.) (challenge to voter residency in an election contest, pursuant to Texas Election
Code section 221.003(a)); State v. Wilson, 490 S.W.3d 610 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(challenge to residency of elected candidate in quo warranto proceeding); see also TEX. CIV. PRAC. & REM.
CODE §§ 66.001–.003 (governing quo warranto proceedings).
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At the time the judgment was signed, O’Brien’s claims had not matured. If
O’Brien was entitled to the relief she sought, it clearly was contingent on the victory
of her opponent in an election that had yet to occur. When an injury is contingent
on uncertain future events and the injury itself is only hypothetical and may not occur
at all, the court lacks jurisdiction to decide the matter. Gibson, 22 S.W.3d at 852.6
The case before us is exactly the type of case for which the ripeness doctrine was
intended. Thus, the trial court was without jurisdiction over O’Brien’s claims at the
time it signed the no-answer default judgment.7
6
The ripeness analysis may permit a party to demonstrate a concrete injury “is likely to occur” and
thereby survive a jurisdictional challenge, Gibson, 22 S.W.3d at 852, but there is no suggestion in the record
that Hutcheson was likely to win the upcoming election or that her swearing-in was imminent. In other
words, there was no direct or immediate threat of the harm complained of by O’Brien. At the time the trial
court adjudicated her claims, it was only speculative that an injury would occur. Id.
7
Although the panel’s decision turned on the erroneous application of the no-default provision of title
14, Justice Bridges theorizes that “[a]rguably, the case was moot from the moment O’Brien filed her petition
in district court because the election process had already begun.” What Justice Bridges fails to note,
however, is that O’Brien’s suit sought no relief affecting the election process. Indeed, her previous action
seeking that relief had been dismissed as moot. In re O’Brien, 2018 WL 4141484, at *2. Rather, O’Brien’s
current action sought relief based on events that might occur after the election, namely the certification or
swearing-in of her opponent. Thus, since the relief sought was based on an unknown future outcome, it is
ripeness, not mootness, that is implicated here. What either dissent fails to acknowledge, however, is that
O’Brien faced a jurisdictional impediment at every turn. If she sought to remove Hutcheson from the ballot
based on residency, the case would be moot because of timing, which is what we determined in O’Brien’s
prior action; if she sought in a pre-election suit to bar her opponent from taking office in the event her
opponent won (which is what she sought here), her action would be unripe; and, if her opponent had won
and O’Brien had challenged Hutcheson’s certification or swearing-in based on residency, then O’Brien
would arguably lack standing to do so. See Norville, 118 S.W.3d at 504. Thus, if there is an arguable
alternative to the ripeness analysis, it is one of standing, not mootness. The panel erred in basing its
determination on the inapplicable no-default provision of title 14, rather than on the proper and applicable
jurisdictional bar. By doing so, the panel opinion created significant practical mischief separate and apart
from its legal misinterpretation. By removing the default judgment option from a trial court’s arsenal, the
panel opinion would insure that many meritorious election-related cases to which there is no legitimate
defense would go forward and instill even more uncertainty into the election process.
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IV.
A judgment rendered without jurisdiction is void. Browning v. Placke, 698
S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (per curiam) (citing Austin Indep.
Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973)); see also Gulf C.&S.F.
Ry. Co. v. Rawlings, 16 S.W. 430, 431 (Tex. 1891). Mandamus will lie to vacate,
set aside or prevent the enforcement of a void judgment or order. See Dikeman v.
Snell, 490 S.W.2d 183, 186 (Tex. 1973) (orig. proceeding); State v. Ferguson, 125
S.W.2d 272, 274 (Tex. 1939) (orig. proceeding); see also In re Florance, 377
S.W.3d 837, 840 (Tex. App.—Dallas 2012, orig. proceeding). Generally,
mandamus relief is appropriate “only if the court clearly abused its discretion and
the party has no adequate remedy by appeal.” In re Sw. Bell Tel. Co., 35 S.W.3d
602, 605 (Tex. 2000) (orig. proceeding). Signing a void order is an abuse of
discretion. Id. If the challenged order is void, the relator need not show he or she
has no adequate appellate remedy. Id.; In re Vaishangi, Inc., 442 S.W.3d 256, 261
(Tex. 2014) (orig. proceeding) (per curiam). Accordingly, relators were entitled to
relief on this basis, but not on the basis relied on by the panel.
/Ken Molberg//
KEN MOLBERG
JUSTICE
181333CF.905
Joined by Burns, C.J., Osborne, Partida-Kipness, Reichek, Nowell, and Carlyle, JJ.
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