John Scott, in His Official Capacity as Secretary of the State of Texas v. Neal Dikeman, Shawn Kelly, Roy, Eriksen, Jared Wissel, Scott Ford, Billy Pierce, Christina Ford, Charlie Stevens, and Neko Antoniou ( 2023 )

Reversed and Rendered and Memorandum Opinion filed June 8, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00091-CV
JANE NELSON, IN HER OFFICIAL CAPACITY AS SECRETARY OF
THE STATE OF TEXAS, Appellant
V.
NEAL DIKEMAN, SHAWN KELLY, ROY ERIKSEN, JARED WISSEL,
SCOTT FORD, BILLY PIERCE, CHRISTINA FORD, CHARLIE
STEVENS, AND NEKO ANTONIOU, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2019-76841
MEMORANDUM OPINION
Appellant Jane Nelson, in her official capacity as Secretary of the State of
Texas,1 appeals from the denial of her motion to dissolve a temporary injunction
1
The officeholder of the Secretary of State of Texas has changed several times during
this case. We have substituted the current officeholder for the prior officeholders named in the
trial court and on appeal. See Tex. R. App. 7.2(a.).
after the Legislature amended the statute upon which the injunction was based.
We agree with the Secretary that the trial court abused its discretion by not
dissolving the injunction. Accordingly, we reverse the trial court’s order and
render a judgment dissolving the temporary injunction.
I. BACKGROUND
This appeal is the second regarding a temporary injunction against the
Secretary. Appellees were members and candidates within Texas’s Libertarian
party. The Secretary issued an advisory that required candidates nominated by
convention, such as appellees, to pay a filing fee or submit a petition in lieu thereof
by a date that predated a nomination convention. Appellees sought, and the trial
court granted, a temporary injunction that enjoins the Secretary from refusing to
accept or rejecting applications for nomination from third-party candidates and
refusing to certify third-party nominees for a general election ballot on the grounds
that the applicants and nominees did not pay a filing fee or submit a petition in lieu
thereof at the time of filing. See Hughs v. Dikeman, 631 S.W.3d 362 (Tex. App.—
Houston [14th Dist.] 2020, pet. denied).
This court affirmed the temporary injunction in part, reasoning that the
Secretary’s advisory conflicted with the section of the Election Code that was
applicable at the time because the requirement of a filing fee or petition only
applied to candidates who had actually been nominated at a convention, but the
Secretary’s advisory proposed applying the requirement to candidates seeking
nomination by convention, i.e., candidates who had not yet been nominated. See
Hughs, 631 S.W.3d at 381 (citing Tex. Elec. Code § 141.041(a)) (“The Advisory
therefore exceeds the bounds of authority granted under section 141.041.”).2
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This court reviewed other rulings of the trial court and modified the temporary
injunction, noting that candidates who ultimately secure their party’s nomination as a result of
2
At the time of the trial court’s temporary injunction and the prior appeal, the
applicable statute provided:
(a) In addition to any other requirements, to be eligible to be placed on
the ballot for the general election for state and county offices, a
candidate who is nominated by convention under Chapter 181 or 182
must:
(1) pay a filing fee to the secretary of state for a statewide or
district office or the county judge for a county or precinct
office; or
(2) submit to the secretary of state for a statewide or district
office or the county judge for a county or precinct officer a
petition in lieu of a filing fee that satisfies the requirements
prescribed by Subsection (e) and Section 141.062.
Act of May 20, 2019, 86th Leg., R.S., ch. 822, § 1, 2019 Tex. Gen. Laws 2282(amended and transferred 2021) (current version at Tex. Elec. Code § 181.0311)
(emphasis added). Based on the language in the statute, this court held that the
trial court did not abuse its discretion by enjoining the Secretary “insofar as the
Advisory required compliance with section 141.041’s fee/petition requirements by
minor-party candidates who have not been nominated by the convention process.”
Hughs, 631 S.W.3d at 362. This court explained further, “Candidates who
ultimately secured their party’s nomination as a result of the convention process,
however, must comply with section 141.041.” Id.
Subsequently, the Legislature amended subsection (a) of the statute:
(a) In addition to any other requirements, to be considered for
nomination by convention, a candidate must:
Act of May 13, 2021, 87th Leg., R.S., ch. 149, 2021 Tex. Sess. Law Serv. Ch. 149
the convention process must then comply with the Election Code by paying the filing fee or
submitting a petition. See Hughs, 631 S.W.3d at 383. After remand, the trial court issued an
amended temporary injunction that was consistent with this court’s mandate.
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(to be codified at Tex. Elec. Code § 181.0311(a)) (emphasis added). The Secretary
filed a motion to dissolve the temporary injunction, arguing that there had been a
material change in the law because the Election Code now requires candidates to
comply with the petition/fee requirement before any nominating convention.
The trial court denied the motion, and the Secretary appeals.
II. ANALYSIS
In their sole issue on appeal, the Secretary contends that a changed
circumstance—amendment of the statute—compels dissolution of the temporary
injunction against enforcement of the fee/petition requirement for political
candidates. Appellee Eriksen responds3 that (1) no change in the law renders the
temporary injunction unnecessary or improper; (2) the amendment did not change
the circumstances regarding the advisory, which remains an ultra vires act
inconsistent with current law; (3) Eriksen’s pending motion to enforce the
temporary injunction precludes dissolution; and (4) the Secretary’s appeal seeks to
have this court prejudge the constitutionality of the new law.
A. Standard of Review
We generally review a trial court’s grant of a temporary injunction for an
abuse of discretion. Jelinis, LLC v. Hiran, 557 S.W.3d 159, 165 (Tex. App.—
Houston [14th Dist.] 2018, pet. denied). However, we will apply a de novo
standard of review when the issue turns on a pure question of law. Id. Statutory
interpretation involves questions of law that we consider de novo. Aleman v. Tex.
3
The other appellees did not file a brief. Although some of the appellees were omitted
from the detailed list of parties in subsequent amended petitions, they remained listed as parties
in the caption. See Abramcik v. U.S. Home Corp., 792 S.W.2d 822, 824 (Tex. App.—Houston
[14th Dist.] 1990, writ denied) (“Although we agree the omission of a defendant acts as a
voluntary dismissal, we find the ‘omission’ rule inapplicable to plaintiffs who have been
individually named in prior pleadings and have been generically referred to in a subsequent
pleading.”).
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Med. Bd., 573 S.W.3d 796, 802 (Tex. 2019).
B. Changed Circumstances
A trial court may dissolve a temporary injunction upon a showing of
changed circumstances. Gruss v. Gallagher, No. 14-21-00178-CV, 2023 WL
1975016, at *13 (Tex. App.—Houston [14th Dist.] Feb. 14, 2023, no pet. h.).
Changed circumstances may include a change in the law that makes the temporary
injunction unnecessary or improper. Id.In the prior appeal in this case, this court upheld the temporary injunction on
the basis that the former statute conflicted with the Secretary’s advisory that
required appellees to comply with the fee/petition requirement before they were
nominated by convention because the statute only applied to a candidate “who is
nominated.” See Hughs, 631 S.W.3d at 381, 383 (citing former Tex. Elec. Code
§ 141.041). The amended statute, however, requires a candidate to comply with
the fee/petition requirement “to be considered for nomination.” Tex. Elec. Code
§ 181.0311(a). Thus, the amended fee/petition requirement applies as a
prerequisite to nomination rather than only after a candidate is actually nominated.
Cf. Hughs, 631 S.W.3d at 381. This change in the law nullifies this court’s basis
for upholding the temporary injunction. See id. at 383. Thus, the change in the
law makes the temporary injunction improper. The trial court erred by not
dissolving the injunction.
C. Motion to Enforce
Eriksen contends that he filed a motion to enforce the temporary injunction,
so the injunction is “necessary and should stay in place until the Secretary’s
violation of the injunction is addressed by the trial court.” Eriksen cites no
authority in support of this argument, and we see no reason the temporary
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injunction must remain in place for the court to address any violations that may
have occurred while the temporary injunction was valid. Cf. Propst v. Propst, No.
No. 13-18-00291-CV, 2019 WL 5609964, at *3–4 (Tex. App.—Corpus Christi–
Edinburgh Oct. 31, 2019, no pet.) (mem. op.) (reasoning that a pending motion for
contempt prevented conclusion that appeal was moot even if injunction had
expired).
D. Underlying Merits
Finally, Eriksen contends that the Secretary’s appeal is an attempt to have
this court prejudge the constitutionality of the new law. The Secretary contends
that it is not asking for any relief that would dispose of the case below and is not
asking this court to address any claims asserted in Eriksen’s live pleading.
We agree with the Secretary. We do not address any issue other than
whether the change in the law vitiates the temporary injunction. We do not address
in this appeal any of Eriksen’s constitutional challenges to the amended statute.
III. CONCLUSION
The Secretary’s sole issue is sustained. The trial court erred by not
dissolving the temporary injunction following the change in the law. The trial
court’s January 1, 2022 order denying the Secretary’s motion to dissolve is
reversed, and we render a judgment dissolving the September 15, 2020 amended
temporary injunction.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
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