Ruth R. Hughs, in Her Official Capacity as Secretary of State 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

Motion for En Banc Consideration Denied as Moot; Opinion of September 8,
2020 Withdrawn; Affirmed as Modified in Part, Reversed and Remanded in
Part, Stay Lifted, and Substitute Opinion filed October 27, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00969-CV
NO. 14-20-00078-CV
RUTH R. HUGHS, IN HER OFFICIAL CAPACITY AS SECRETARY OF
STATE 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
SUBSTITUTE OPINION
We deny as moot the appellees’ motion for en banc consideration. We
withdraw our opinion dated September 8, 2020 and issue the following substitute
opinion. Our disposition remains the same.
Neal Dikeman, Shawn Kelly, Roy Eriksen, Jared Wissel, Scott Ford, Billy
Pierce, Christina Ford, Charlie Stevens, and Neko Antoniou (collectively,
“Appellees”) sued Ruth R. Hughs in her official capacity as Secretary of State of the
State of Texas asserting claims and requesting injunctive relief in connection with
Texas Election Code section 141.041 and its accompanying advisory. Section
141.041 requires political candidates nominated by the convention process to either
pay a filing fee or submit a signature petition to appear on the general-election ballot
and the related advisory sets the deadline to comply with these requirements.
Appellees, as members of and candidates within Texas’s Libertarian party, assert
that these requirements unreasonably burden minor-party candidates and those that
plan to vote for them.
The trial court granted Appellees’ request for a temporary injunction and
enjoined Hughs from enforcing section 141.041 and the related advisory. The trial
court also denied Hughs’s plea to the jurisdiction. Hughs filed separate appeals with
respect to these decisions, which were consolidated into a single appeal.
For the reasons below, we affirm the trial court’s temporary injunction in part
as modified and reverse and remand in part. We conclude the trial court erred insofar
as it (1) denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim
challenging the constitutionality of section 141.041 and (2) improperly enjoined the
enforcement thereof. We further conclude the trial court (1) properly denied
Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the
advisory and (2) did not abuse its discretion by temporarily enjoining the advisory’s
enforcement in part.
2
BACKGROUND
Overview of the Statutory Scheme
Under the Texas Election Code, a political party in Texas nominates its
candidates for public office by either a primary or a convention. See Tex. Elec. Code
Ann. ch. 171-74, 181-82. A political party whose candidate in the last gubernatorial
election received at least 20% of the vote (a “major party”) must nominate its
general-election candidates through a primary election. Id. § 172.001. A party
whose candidate in the last gubernatorial election received less than 2% of the vote
(a “minor party”) must nominate its general-election candidates through a
convention. Id. §§ 172.001, .002, 181.003. Parties whose candidates in the most
recent gubernatorial election received at least 2% but less than 20% of the total
number of votes may nominate their general-election candidates through either a
primary or a convention. Id. § 172.002(a).
To participate in a primary election, a major-party candidate must submit an
application accompanied by either a filing fee or a signature petition. Id.
§ 172.021(a), (b). The amount of the filing fee or the number of required signatures
varies depending on which office the candidate seeks. See id. §§ 172.024, .025. The
filing fees are paid to either the county or the state chair of the major party with
which the candidate wishes to run and are used to fund the primary election. See id.
§§ 173.061-.063. Nominees selected through the primary process do not have to pay
an additional filing fee or submit a second signature petition to guarantee their
placement on the general-election ballot.
House Bill 2504 was signed into law in June 2019 and made two changes
affecting minor-party candidates’ access to the general-election ballot. See Act of
May 20, 2019, 86th Leg., R.S., ch. 822, §§ 1-3, 2019 Tex. Gen. Laws (codified at
Tex. Elec. Code Ann. §§ 141.041, 181.005(c)). Before the passage of Bill 2504,
3
minor parties had two avenues available to qualify their nominees for the general-
election ballot:
(1) file with the Secretary of State, no later than the 75th day after the date
of the precinct conventions, lists of precinct convention participants
indicating that the number of participants equals at least one percent of
the total number of votes received by all candidates for governor in the
most recent gubernatorial election; or
(2) in the prior general election, the minor party put forth a nominee for a
statewide office who received a number of votes equal to at least five
percent of the total number of votes received by all candidates for that
office.
See Act of May 13, 1985, 69th Leg., R.S., ch. 211, § 1, 1985 Tex. Gen. Laws 802,
996 (codified at Tex. Elec. Code Ann. § 181.005(a), (b)). House Bill 2504 was
codified in section 181.005(c), which modified the second option by lowering the
threshold from 5% to 2%. See Tex. Elec. Code Ann. § 181.005(c).
House Bill 2504 was also codified in section 141.041, which requires “a
candidate who is nominated by convention” to fulfill one of two requirements to
guarantee that candidate’s placement on the general-election ballot:
(1) pay a filing fee to either the Secretary of State or the county
judge; or
(2) submit to the Secretary of State or county judge a signature
petition.
Id. § 141.041(a). The amount of the filing fee and the number of required signatures
are the same as those required of major-party candidates seeking placement on the
primary-election ballot. See id. §§ 141.041(b), (e), 172.024, 172.025. But whereas
fees paid by major-party candidates are paid to the parties’ state or county chairs
(see id. §§ 173.061-.063), the fees from minor-party candidates are paid to the
Secretary of State or the county judge and are credited to either the state or county
general fund. See id. § 141.041(c), (d). Section 141.041 does not set a deadline for
4
compliance but states that the Secretary of State “shall adopt rules as necessary to
implement this section.” Id. at (f).
On August 31, 2019, Hughs promulgated Election Advisory No. 2019-13 (the
“Advisory”). Referencing House Bill 2504’s enactment in section 181.005(c) —
which lowered the minimum threshold for a party nominating by convention to
guarantee its candidates a place on the general-election ballot — the Advisory states
that both the Libertarian party and the Green party “met this threshold” and are
entitled to have their candidates on Texas’s 2020 general-election ballot. The
Advisory also provides as follows with respect to section 141.041’s filing
fee/signature petition requirement for “a candidate who is nominated by
convention”:
• Candidates seeking nomination by the convention process are required
to deliver section 141.041’s filing fee or signature petition by December
9, 2019.1
• Candidates who do not comply with this deadline are not eligible for
nomination by the party convention process.
Election Advisory No. 2019-13. Under Texas Election Code section 181.061, a
party nominating by convention must hold its conventions in March and April of the
election year.2 Id. § 181.061. Therefore, the deadline prescribed by the Advisory
required these parties’ candidates to submit their filing fee or signature petition
approximately three months before the 2020 nominating conventions.
The Underlying Dispute
The Libertarian party’s nominee in the most recent gubernatorial election
1
December 9, 2019 also was the deadline for minor-party candidates to submit their
application for nomination by a convention. See Tex. Elec. Code Ann. §§ 172.023(a), 181.033(a).
2
Due to the COVID-19 pandemic, the Libertarian party’s 2020 state convention was
moved to August 2020.
5
received less than 20% of the vote; as permitted, it selects its general-election
nominees through a convention. See id. §§ 172.002, 181.003. Accordingly, the
Libertarian party’s candidates are subject to section 141.041 and the Advisory’s
December 9, 2019 deadline for compliance with this section’s requirements.
Appellees sued Hughs, Lina Hidalgo (in her official capacity as county judge
of Harris County), and Diane Trautman (in her official capacity as county clerk of
Harris County) asserting claims and requesting injunctive relief in connection with
section 141.041 and the Advisory.3 Specifically, Appellees asserted that (1) section
141.041 violates the Texas Constitution, and (2) the Advisory conflicts with the
Texas Election Code and the Texas Constitution.
The trial court held a hearing on Appellees’ application for a temporary
injunction in November 2019 and heard testimony from appellee Neal Dikeman.
Dikeman discussed the burdens imposed by section 141.041 and the Advisory on
minor-party candidates and those that plan to vote for them.
On December 2, 2019, the trial court signed an order granting a temporary
injunction. In the section labeled “Findings”, the trial court concluded that
(1) section 141.041 constitutes an actual or threatened violation of the United States
and Texas Constitutions; (2) evidence shows the Advisory conflicts with the Texas
Election Code; and (3) evidence shows the Advisory implicates Appellees’ rights
under the United States and Texas Constitutions.4 In relevant part, the trial court’s
order states as follows:
The Court ORDERS that Defendant Hughs is temporarily enjoined
3
Hidalgo and Trautman are not parties to this appeal.
4
When, as here, no findings of fact or conclusions of law are filed other than those in the
order granting the temporary injunction, the trial court’s judgment must be upheld on any legal
theory supported by the record. See Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558, 562
n.6 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
6
from refusing to accept or rejecting applications for nomination from
third-party candidates on the grounds that the applicant did not pay a
filing fee or submit a petition in lieu thereof at the time of filing or at
any other time.
* * *
The Court ORDERS that Defendant Hughs is temporarily enjoined
from refusing to certify third-party nominees for the general-election
ballot on the grounds that the nominee did not pay a filing fee or submit
a petition in lieu thereof at the time of filing or at any other time.
(emphases in original). Hughs timely filed an interlocutory appeal challenging the
trial court’s temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(4).
After the temporary injunction was entered, Hughs filed a plea to the
jurisdiction asserting sovereign immunity barred Appellees’ claims. The trial court
held a hearing and denied Hughs’s plea in a written order signed January 13, 2020.
Hughs then timely filed a second interlocutory appeal and the two appeals were
consolidated.
ANALYSIS
Hughs asserts two issues on appeal: (1) sovereign immunity deprives the trial
court of jurisdiction, and (2) Appellees did not make the showing necessary to
warrant injunctive relief. Before we address these issues, we take up sua sponte the
threshold issues of standing and mootness. See San Jacinto River Auth. v. Ogletree,
594 S.W.3d 833, 838 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (because
subject matter jurisdiction is essential to the authority of a court to decide a case, we
may address its existence regardless of whether the parties challenge it).
7
I. Plaintiffs Have Standing and This Case Is Not Moot.
A. Governing Principles and Standard of Review
Standing is a component of subject matter jurisdiction and a constitutional
prerequisite to maintaining suit in either state or federal court. Heckman v.
Williamson Cty., 369 S.W.3d 137, 151 n.60 (Tex. 2012); Country Cmty. Timberlake
Vill., L.P. v. HMW Special Util. Dist. of Harris Cty., 438 S.W.3d 661, 667 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). Standing is determined at the time
suit is filed and focuses on whether a party has a sufficient relationship with the
lawsuit so as to have a justiciable interest in its outcome. See Austin Nursing Ctr.,
Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005); Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). Generally, standing requires a
plaintiff to show that “he or she possesses an interest in a conflict distinct from that
of the general public, such that the defendant’s actions have caused the plaintiff some
particular injury.” Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). This injury
must be “concrete and particularized, actual or imminent, not hypothetical.” Garcia
v. City of Willis, 593 S.W.3d 201, 206 (Tex. 2019) (internal quotation omitted).
Whether an injury meets these requirements “depends on the context in which the
claim is asserted.” Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 581 (Tex.
2013).
Where a plaintiff seeks to challenge a statute, the requirements for standing
differ slightly. See Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69,
77 (Tex. 2015). Specifically, plaintiffs must (1) show they have suffered some
actual or threatened injury under the statute; and (2) contend that the statute
unconstitutionally restricts their rights. Id.
Like standing, mootness is a threshold issue that implicates the court’s subject
matter jurisdiction. See, e.g., Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642
8
(Tex. 2005); see also In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 899
(Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). A case becomes moot if
a controversy ceases to exist or if the parties lack a legally cognizable interest in the
outcome. Allstate Ins. Co., 159 S.W.3d at 642; Robinson v. Alief Indep. Sch. Dist.,
298 S.W.3d 321, 324-25 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). A
suit can become moot at any time, including on appeal, and courts have an obligation
to take into account intervening events that may render a dispute moot. Heckman,
369 S.W.3d at 166-67.
Whether a trial court has subject matter jurisdiction is a question of law we
review de novo. Harris Cty. Flood Control Dist. v. Great Am. Ins. Co., 309 S.W.3d
614, 617 (Tex. App.—Houston [14th Dist.] 2010, no pet.). When we sua sponte
review a plaintiff’s standing, we construe the petition in favor of the plaintiff and, if
necessary, review the entire record to determine if any evidence supports standing.
See Tex. Ass’n of Bus., 852 S.W.2d at 446; see also Webb v. Voga, 316 S.W.3d 809,
812 (Tex. App.—Dallas 2010, no pet.). Generally, courts must analyze the standing
of each individual plaintiff to bring each claim he or she alleges. See Heckman, 369
S.W.3d at 152. But where, as here, multiple plaintiffs seek the same injunctive or
declaratory relief, one plaintiff’s demonstration of its standing obviates the need for
the others to do so. See Patel, 469 S.W.3d at 77-78; Andrade v. NAACP of Austin,
345 S.W.3d 1, 6 & n.9 (Tex. 2011).
B. Application
Appellees’ first amended petition lists nine plaintiffs and states that seven of
them seek the Libertarian party’s 2020 nominations for various Texas county,
district, and state offices. If these plaintiffs secure the party’s 2020 nominations,
they would be required to comply with the requirements in section 141.041 and the
Advisory to guarantee their placement on the general-election ballot. Therefore, at
9
the time their suit was filed, these plaintiffs had a sufficient relationship with the
lawsuit so as to have a justiciable interest in its outcome, i.e., whether or not they
would be required to comply with section 141.041 and the Advisory. See, e.g., Patel,
469 S.W.3d at 78 (plaintiffs had standing to challenge the statute because “they have
suffered some actual restriction under the challenged statute”); Fin. Comm’n of Tex.,
418 S.W.3d at 582-83 (homeowners had standing to challenge commission’s
interpretation of certain home equity amendments because their rights were
“threatened” by “misinterpretations of constitutional requirements”); Tex. Elec.
Code Ann. § 273.081 (person in danger of being harmed by threatened violation of
this code entitled to appropriate injunctive relief). In addition to this particularized
injury, Appellees’ first amended petition alleges that section 141.041
unconstitutionally restricts their rights. Accordingly, at the time suit was filed,
Appellees had standing to maintain their claims challenging section 141.041 and the
Advisory. See Austin Nursing Ctr., Inc., 171 S.W.3d at 848; Tex. Ass’n of Bus., 852
S.W.2d at 445-46.
Turning to the issue of mootness, Appellees’ counsel was questioned during
oral argument regarding the status of the candidates’ campaigns. In a letter to the
court, Appellees’ counsel stated that five of the Appellees have secured the
Libertarian party’s nominations for the 2020 general election: Shawn Kelly for U.S.
Congressional District 7; Roy Eriksen for U.S. Congressional District 10; Jared
Wissel for Texas Senate District 11; Neko Antoniou for Texas Congressional
District 127; and Billy Pierce for Harris County Tax Assessor Collector and Voter
Registrar. Because these individuals are eligible to be placed on the 2020 general-
election ballot, they maintain a legally cognizable interest in the outcome of this
litigation. See Allstate Ins. Co., 159 S.W.3d at 642. Accordingly, the Appellees’
case is not moot.
10
II. The State of Texas Is Not Immune From This Suit.
A. Summary
Arguing that the trial court erroneously denied her plea to the jurisdiction,
Hughs asserts that sovereign immunity bars Appellees’ claims challenging section
141.041 and the Advisory. In response, Appellees contend that the State lacks
sovereign immunity because they: (1) challenged the validity of a statute; (2) sought
equitable relief for violations of the Texas Constitution; and (3) alleged conduct of
a state official was ultra vires.
B. Sovereign Immunity and Relevant Exceptions
Sovereign immunity protects the State and its political subdivisions from
lawsuits for damages unless immunity has been waived by the Legislature. Tex.
Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). Like
standing and mootness, sovereign immunity implicates the trial court’s subject
matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Tex.
Transp. Comm’n v. City of Jersey Vill., 478 S.W.3d 869, 875 (Tex. App.—Houston
[14th Dist.] 2015, pet. denied). We review de novo a trial court’s ruling on a plea to
the jurisdiction. Miranda, 133 S.W.3d at 228. Where, as here, the jurisdictional
challenge is based on the pleadings, we “construe the pleadings liberally in favor of
the plaintiff[] and look to the pleader[’s] intent.” Id. at 226.
The Texas Supreme Court has recognized that sovereign immunity does not
bar suit in at least three relevant circumstances:
(1) when a claim challenges the validity of a statute;5
(2) when a claim seeks equitable relief to redress violations of the Texas
5
See Tex. Transp. Comm’n, 478 S.W.3d at 876 (citing Sawyer Trust, 354 S.W.3d at 388).
11
Constitution;6 and
(3) when a claim seeks to determine or protect a party’s rights against a
state official who has acted without legal or statutory authority
(commonly referred to as an ultra vires claim).7
C. Analysis of Sovereign Immunity and Relevant Exceptions
1. Claims Challenging the Validity of a Statute
a. Law
Sovereign immunity is inapplicable when a suit challenges the
constitutionality of a statute and seeks only equitable relief. See Patel, 469 S.W.3d
at 75-76. But this immunity is waived only to the extent the plaintiff pleads a viable
constitutional claim. See Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d
1, 8, 13, 14 (Tex. 2015); Houston Firefighters’ Relief & Ret. Fund v. City of Houston,
579 S.W.3d 792, 800-01 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). To
satisfy this showing, plaintiffs must do more than merely name a cause of action and
assert the existence of a constitutional violation. See generally Klumb, 458 S.W.3d
at 13-14 (concluding the appellants did not present a viable equal protection claim
where (1) neither a suspect classification nor a fundamental right was involved, and
(2) the appellee’s actions were rationally related to certain government interests);
Andrade, 345 S.W.3d at 11 (considering substance of equal protection claim against
Secretary of State in reviewing ruling on a plea to the jurisdiction and explaining
6
City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007) (per curiam). See also Tex.
Const. art. 1, § 2 (“All political power is inherent in the people, and all free governments are
founded on their authority, and instituted for their benefit. The faith of the people of Texas stands
pledged to the preservation of a republican form of government, and, subject to this limitation
only, they have at all times the inalienable right to alter, reform or abolish their government in
such manner as they may think expedient.”).
7
See Tex. Transp. Comm’n, 478 S.W.3d at 875-76 (citing Tex. Dep’t of Transp. v. Sefzik,
355 S.W.3d 618, 622 (Tex. 2011) (per curiam); Tex. Nat. Res. Conservation Comm’n v. IT-Davy,
74 S.W.3d 849, 855 (Tex. 2002)).
12
that Secretary retained immunity unless the plaintiffs pleaded a “viable claim”).
Laws that impose burdens upon the right to vote are not automatically subject
to strict scrutiny; instead, such laws are analyzed under “a more flexible standard”,
i.e., a weighing of (1) “the character and magnitude of the asserted injury to the
rights protected by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate” against (2) “the precise interests put forward by the State as justifications
for the burden imposed by its rule” (taking into consideration “the extent to which
those interests make it necessary to burden the plaintiff’s rights”). Burdick v.
Takushi, 504 U.S. 428, 434 (1992) (quoting Tashjian v. Republican Party of Conn.,
479 U.S. 208, 213-14 (1986) and Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
b. The Nature of Appellees’ Constitutional Challenge
In their first amended petition, Appellees assert that the burdens imposed by
section 141.041 “are unconstitutional as applied and facially” under the Texas
Constitution. An as-applied challenge concedes that the statute is generally
constitutional but claims that it operates unconstitutionally as to the challenger due
to their specific circumstances. 8100 N. Freeway, Ltd. v. City of Houston, 363
S.W.3d 849, 855 (Tex. App.—Houston [14th Dist.] 2012, no pet.). In contrast, a
facial challenge alleges that a statute is always unconstitutional in all its applications.
Id.
Despite their allegation, the substance of Appellees’ arguments does not raise
an as-applied constitutional challenge to section 141.041 because Appellees do not
argue that section 141.041 operates unconstitutionally with respect to their specific
circumstances. Instead, the burdens Appellees cite (i.e., paying a filing fee or
submitting a signature petition to guarantee placement on the general-election ballot)
would be borne by all persons subject to section 141.041’s requirements — not just
Appellees. Moreover, Appellees do not contend that section 141.041 is generally
13
constitutional — they argue that it always operates unconstitutionally. Therefore,
we construe Appellees’ arguments addressing section 141.041 as raising only a
facial challenge with respect to the statute’s constitutionality. See id.
To mount a successful facial challenge, a plaintiff must establish that “‘no set
of circumstances exists under which the statute would be valid.’” In re G.X.H., 584
S.W.3d 543, 550 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (quoting Peraza
v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015)). If a statute is constitutional
under any possible state of facts, we “should presume that such facts exist without
making a separate investigation of the facts or attempting to decide whether the
Legislature has reached a correct conclusion with respect to the facts.” Barshop v.
Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 625 (Tex.
1996); see also Lund v. Giauque, 416 S.W.3d 122, 127 (Tex. App.—Fort Worth
2013, no pet.) (recognizing that a facial challenge “does not look to the specific facts
of the case at hand”). Therefore, for a facial challenge, we consider the statute as
written rather than how it operates in practice. FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 873 (Tex. 2000). Because a facial challenge attacks a
statute’s validity in all scenarios, “it is ‘the most difficult challenge to mount
successfully.’” Id. (quoting Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App.
1992) (en banc)).
c. Application
Appellees allege that section 141.041’s requirements for placement on the
general-election ballot violate the Texas Constitution. See Tex. Const. art. 1, §§ 3,
8, 19, 27. We evaluate such challenges to ballot access laws under the Texas
Constitution as we would a similar challenge under the First and Fourteenth
Amendments to the United States Constitution, by using the balancing framework
in Anderson as refined by Burdick. See also State v. Hodges, 92 S.W.3d 489, 496-
14
502 (Tex. 2002).
In Anderson, the Supreme Court instructed lower courts to evaluate election
laws by (1) considering “the character and magnitude of the asserted injury” posed
to the plaintiff’s asserted rights and (2) weighing that consideration against the
interest put forward by the state. 460 U.S. at 788. In Burdick, the Court clarified
that when a state regulation imposes severe restrictions, the regulation must be
narrowly drawn to advance a compelling government interest. 504 U.S. at 434. But
when a law imposes only reasonable and nondiscriminatory restrictions, the state’s
important regulatory interests usually suffice to justify the restrictions. Id. This
approach has been described as a “‘sliding scale’ — the more severe the burden
imposed, the more exacting [the court’s] scrutiny; the less severe, the more relaxed
[the court’s] scrutiny.” Ariz. Libertarian Party v. Hobbs, 925 F.3d 1085, 1090 (9th
Cir. 2019), cert. denied, 2020 WL 3146596, __ U.S. __ (June 15, 2020); accord Fish
v. Schwab, 957 F.3d 1105, 1124 (10th Cir. 2020) (quoting Edward B. Foley, Due
Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial
Review of Election Laws, 84 U. Chi. L. Rev. 655, 675 (2017)), pet. for cert. filed,
(U.S. Aug. 3, 2020) (No. 20-109); Daunt v. Benson, 956 F.3d 396, 408 (6th Cir.
2020); and Barr v. Galvin, 626 F.3d 99, 109 (1st Cir. 2010) (citing Timmons v. Twin
Cities Area New Party, 520 U.S. 351, 358 (1997)). See also Crawford v. Marion
Cty. Election Bd., 553 U.S. 181, 210 (2008) (Souter, J., dissenting).
i. Character and Magnitude of the Asserted Injury
Appellees assert that section 141.041 unconstitutionally discriminates against
minor parties and their nominees by requiring them to pay a filing fee or submit a
signature petition to guarantee their placement on the general-election ballot — a
requirement not imposed on major-party nominees. Appellees analogize these
circumstances to those in Harper v. Virginia State Board of Elections, 383 U.S. 663
15
(1966), and argue that Harper mandates a strict scrutiny standard of review.
The plaintiffs in Harper sued for a declaration that Virginia’s poll tax was
unconstitutional. Id. at 664. Reviewing these challenges, the Court stated that,
“where fundamental rights and liberties are asserted under the Equal Protection
Clause, classifications which might invade or restrain them must be closely
scrutinized and carefully confined.” Id. at 670. Concluding that a state violates the
Fourteenth Amendment “whenever it makes the affluence of the voter or payment
of any fee an electoral standard”, the Court reversed the lower court’s dismissal of
the plaintiffs’ claims challenging the poll tax. Id. at 666, 670.
But Harper is distinguishable from the facts presented here. Unlike the poll
tax in Harper, section 141.041 does not condition access to the general-election
ballot solely on the payment of a fee; it also gives minor-party nominees the option
of submitting a signature petition. See Tex. Elec. Code Ann. § 141.041(a).
Therefore, unlike the statute at issue in Harper, section 141.041 does not impose
“the requirement of fee paying”. Harper, 383 U.S. at 668 (emphasis added).
Further, the specific conclusions reached in Harper were based in large part on the
plaintiffs’ status as voters, not as candidates or nominees. See id. at 666 (“Voter
qualifications have no relation to wealth nor to paying or not paying this or any other
tax.”); see also id. at 670 (“wealth or fee paying has, in our view, no relation to
voting qualifications”). Because of these distinctions, Harper does not compel the
application of strict scrutiny here.
Section 141.041 primarily operates with respect to nominees seeking access
to the general-election ballot. But candidacy is not a fundamental right and “the
existence of barriers to a candidate’s access to the ballot ‘does not of itself compel
close scrutiny.’” Clements v. Fashing, 457 U.S. 957, 963 (1982) (quoting Bullock
v. Carter, 405 U.S. 134, 143 (1972)); see also Hodges, 92 S.W.3d at 498 (“We agree
16
with Appellants that candidacy is not a fundamental right.”). Applying these
principles, our sister court of appeals analyzed a claim challenging Texas Election
Code section 172.021(e) (requiring a candidate for the office of justice of the peace
in a county with a population of more than 1.5 million to obtain 250 signatures to be
entitled to a place on the primary-election ballot). See Risner v. Harris Cty.
Republican Party, 444 S.W.3d 327, 334 (Tex. App.—Houston [1st Dist.] 2014, no
pet.). This signature requirement does not apply to candidates seeking the office of
justice of the peace in a county with a population less than 1.5 million. See Tex.
Elec. Code Ann. § 172.021(e).
Concluding that this requirement did not “interfere with a fundamental right
or discriminate against a subject class,” the court held that section 172.021(e) did
“not impose a significant burden on a person’s right to run for office.” Risner, 444
S.W.3d at 338. Weighing this restriction against the state’s purported interests, the
court held that it was “relationally related to a legitimate state interest in preventing
or discouraging an unqualified or frivolous candidate from obtaining a place on the
ballot.” Id.
The plaintiff in Nader v. Connor, 332 F. Supp. 2d 982, 986 (W.D. Tex. 2004),
also challenged certain Texas candidacy regulations and, like Appellees here, argued
that certain disparities rendered the challenged regulations “discriminatory and
unconstitutionally burdensome.” Specifically, the provisions at issue required an
independent candidate for president to obtain approximately 64,000 petition
signatures in 62 days to guarantee a place on the general-election ballot.8 Id. at 985.
In contrast, a minor-party candidate was required to obtain approximately 45,000
8
Specifically, the provision at issue required an independent candidate running in the
presidential election to obtain a petition with a number of signatures equal to one percent of the
total vote received in the state by all candidates for president in the most recent presidential
election. See Tex. Elec. Code Ann. § 192.032(d). In 2004, this number was approximately 64,000.
17
signatures in a period of 76 days to secure their placement on the general-election
ballot.9 Id. The plaintiff argued that these restrictions “violate[d] his civil rights by
discriminating against him in favor of the candidates of minor political parties.” Id.
at 986.
Viewing Texas’s election scheme “in [its] totality”, the district court held that
these restrictions did not warrant strict scrutiny under the Anderson/Burdick
balancing test. See id. at 989. Although the ballot-access requirements differed
between independent and minor-party candidates, the court concluded that these
requirements nonetheless were “similar in degree”. Id. at 988. The court also
pointed out that minor parties were subject to a broader regulatory scheme than
independent candidates and were required to establish a state executive committee,
a county executive committee for convention-hosting counties, and precinct chairs
for convention-hosting precincts. Id. at 989. Minor-party candidates also were
required to announce their candidacies at an earlier time and participate in the
convention process. Id. In contrast, “[a]n independent candidate ha[d] only one
requirement to meet to secure ballot access for a presidential election in Texas”:
filing an application and the accompanying signature petition. Id. (citing Tex. Elec.
Code Ann. § 192.032(c), (d)). These variances, the court concluded, were “not
sufficiently severe to warrant strict scrutiny.” Id.
Against this backdrop, we conclude that section 141.041, as written, imposes
only reasonable and nondiscriminatory restrictions that do not require a strict
scrutiny standard of review. See Burdick, 504 U.S. at 434. Although section
141.041’s burdens are not insignificant, they are identical to the requirements of
9
This provision required minor-party candidates to file a list of precinct-convention
participants totaling at least one percent of the total number of votes received by all candidates for
governor in the last Texas gubernatorial election. Id. at § 181.005(a). In 2004, this number was
approximately 45,000.
18
major-party candidates seeking placement on the primary-election ballot. See Tex.
Elec. Code Ann. §§ 141.041, 172.021(a), (b), 172.024, 172.025. But whereas this
filing fee/signature petition requirement applies to major-party candidates seeking
placement on the primary-election ballot, the plain language of section 141.041
makes its requirements applicable only to those minor-party candidates that are
nominated at the convention and seek placement on the general-election ballot.
Compare id. § 172.021 with id. § 141.041. Considered altogether, this regulatory
scheme creates a stricter gatekeeping mechanism with respect to major-party
candidates than minor-party nominees and counsels against the conclusion that
section 141.041 imposes severe restrictions. See Tex. Indep. Party v. Kirk, 84 F.3d
178, 187 (5th Cir. 1996) (where minor parties and independent candidates
challenged certain restrictions, the court noted that the restrictions were “not more
burdensome than what is required of the major parties”); see also Nader, 332 F.
Supp. 2d at 988-89.
Moreover, even considered on its own, section 141.041’s filing fee and
signature requirements are not extreme. The filing fees range from $75 for the office
of county surveyor to $5,000 for a United States senator. See Tex. Elec. Code Ann.
§§ 141.041(b), 172.024(a)(1), (16). With respect to the signature petition, nominees
must obtain 5,000 signatures for a statewide office or a maximum of 500 signatures
for a district, county, or precinct office. See id. §§ 141.041(e), 172.025. These
requirements do not invoke Burdick’s “severe restriction” classification. Contra
Green Party of Ga. v. Kemp, 171 F. Supp. 3d 1340, 1365-66 (N.D. Ga. 2016); Nader
v. Brewer, 531 F.3d 1028, 1036 (9th Cir. 2008).
To further support their contention that section 141.041 is discriminatory,
Appellees point out that while the fees paid by major-party candidates are paid to
the parties’ state or county chairs, the fees from minor-party candidates are paid to
19
the Secretary of State or the county judge and are credited to either the state or county
general fund. See Tex. Elec. Code Ann. §§ 141.041(c), (d), 173.061-.063.
Furthermore, signature petitions from major-party candidates are filed with the
parties’ state or county chairs, who decide whether the petitions are sufficient. See
id. §§ 171.021(b), 172.022(a)(1)(2), 172.028(a). In contrast, signature petitions from
minor-party candidates are submitted to the Secretary of State or the county judge.
See id. § 141.041(a)(2).
These differences do not alter our conclusion. Although certain details
pertaining to the implementation of the filing fee/signature petition requirements
differ between major and minor parties, these differences do not disproportionately
increase the burden on a minor-party nominee’s compliance. The thrust of the
requirement remains the same: either pay a filing fee or submit a signature petition
for placement on the general-election ballot. See id. § 141.041. This requirement
does not constitute a severe restriction.
ii. The State’s Regulatory Interests
Concluding the character and magnitude of the asserted injury is reasonable
and non-discriminatory, we turn to “the precise interests put forward by the State as
justifications for the burden imposed by its rule.” See Burdick, 504 U.S. at 434.
Here, the State put forward the interests of preventing “voter confusion, ballot
overcrowding, or the presence of frivolous candidacies.” These precise interests
outweigh the character and magnitude of Appellees’ alleged injuries. See Anderson,
460 U.S. at 788. In analyzing the relative importance of the State’s interests, we
acknowledge the State need not produce empirical evidence showing that the harm
the statute is designed to avoid has actually occurred. Hodges, 92 S.W.3d at 496
(citing Munro v. Socialist Workers Party, 479 U.S. 189, 195-96 (1986)). “Moreover,
a statute does not fail merely because it is underinclusive and does not eliminate all
20
types of conduct that could produce the same evil to which the statute is directed.”
Id. at 496-97.
Hughs also asserts that section 141.041 is justified by the State’s interest in
“requir[ing] candidates to show a modicum of support in order to have their names
on the ballot.” Other courts have cited this interest as a justification for a state’s
ballot access restrictions. See, e.g., Tex. Indep. Party, 84 F.3d at 186 (“the State has
a legitimate goal of requiring a demonstration of sufficient public support to gain
access to the ballot”); Risner, 444 S.W.3d at 338 (“the State has the undoubted right
to require candidates to make a preliminary showing of substantial support in order
to qualify for a place on the ballot”) (internal quotation omitted). Hughs’s asserted
interests bear a reasonable relationship to the restrictions imposed by section
141.041 and are a rational basis therefor, particularly where the statutory scheme
provides prospective candidates with a choice between (1) demonstrating a
modicum of public support via signatures or (2) demonstrating either (a) a modicum
of public support via the raising of a filing fee or (b) commitment to being a bona
fide candidate via payment of a filing fee. See Swanson v. Worley, 490 F.3d 894,
911 (11th Cir. 2007) (“[t]his Court has previously recognized that signature
requirements promote the important state interest of ensuring that only bona fide
independent candidates with a measure of support gain ballot access”).
Finally, we must take into account the extent to which such governmental
interests “make it necessary to burden the plaintiff[s’] rights.” Anderson, 460 U.S.
at 789. Here, a modicum of public support can be evidenced via supporters’
signatures or supporters’ donations and Appellees have pointed us to no alternative
methods to evidence such support. In the event such signatures or donations are
unavailable, candidates can still evidence their bona fide candidacies by paying a
filing fee; similarly, Appellees have pointed us to no alternative methods. Therefore,
21
the government’s apparent interests make it necessary to reasonably burden
plaintiffs’ rights via sufficient signatures or a filing fee.
The statutory scheme at issue is not unconstitutional because (1) the
governmental interests at issue outweigh the character and magnitude of the harm,
(2) it is necessary to reasonably burden Appellees’ rights to promote those interests,
(3) the statutory scheme at issue does not unreasonably burden Appellees’ rights,
and (4) Appellees have failed to provide any proposed alternatives capable of
furthering the State’s interests in preventing “voter confusion, ballot overcrowding,
or the presence of frivolous candidacies” by requiring candidates to show they have
a modicum of support. The justifications proffered by Hughs for section 141.041’s
restrictions are sufficient under the standard announced in Anderson and Burdick to
support reasonable, nondiscriminatory restrictions and we hold that these legitimate
interests are sufficient to outweigh the burdens imposed by section 141.041 on minor
parties and their nominees. Therefore, Appellees did not assert a viable
constitutional claim as necessary to waive the State’s sovereign immunity.
2. Violations of the Texas Constitution
Appellees also argue section 141.041’s filing fee/signature petition
requirement violates the Texas Constitution’s prohibition against special laws. That
section states as follows:
(a) The Legislature shall not, except as otherwise provided in this
Constitution, pass any local or special law . . . .
(b) [I]n all other cases where a general law can be made applicable,
no local or special law shall be enacted . . . .
Tex. Const. art. 3, § 56(a), (b).
A special law is defined as a law “limited to a particular class of persons
distinguished by some characteristic other than geography.” Ford Motor Co. v.
22
Sheldon, 22 S.W.3d 444, 450 (Tex. 2000) (quoting Tex. Boll Weevil Eradication
Found., Inc. v. Lewellen, 952 S.W.2d 454, 465 (Tex. 1997)). The purpose of the
prohibition on special laws is to “prevent the granting of special privileges and to
secure uniformity of law throughout the State as far as possible.’” Maple Run at
Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996) (quoting
Miller v. El Paso Cty., 150 S.W.2d 1000, 1001 (Tex. 1941)).
When analyzing the constitutionality of a statute, we begin with the
presumption of validity. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex. 1974). “The
‘primary and ultimate’ test of whether a law is general or special is whether there is
a reasonable basis for the classification made by the law, and whether the law
operates equally on all within the class.” Robinson v. Crown Cork & Seal Co., 251
S.W.3d 520, 536 (Tex. App.—Houston [14th Dist.] 2006), rev’d on other grounds,
335 S.W.3d 126 (Tex. 2010). Before a statute will be struck down as violating the
prohibition against special laws, “it must clearly appear that there is no reasonable
basis for the classification adopted by the Legislature” to support the statute.
Cameron Cty. v. Wilson, 326 S.W.2d 162, 167 (Tex. 1959).
Appellees fail to make that showing here. As discussed in detail with respect
to our Anderson/Burdick analysis, section 141.041 imposes reasonable and non-
discriminatory restrictions that are sufficiently justified by the State’s interest in
requiring candidates to show a modicum of support to guarantee their names will be
on the general-election ballot. These are the same restrictions imposed on major-
party candidates with respect to their participation in the primary election.
Moreover, because section 141.041 has a narrower application, its gatekeeping
effects are more limited than the analogous scheme’s application to major-party
candidates. Therefore, Appellees’ special-laws argument is insufficient to waive
sovereign immunity.
23
3. Ultra Vires Claims
Appellees also assert that the ultra vires sovereign-immunity exception
applies to their claim challenging the Advisory because it conflicts with the Texas
Election Code.
Sovereign immunity does not bar claims alleging that a governmental official
acted ultra vires, or without legal authority, in carrying out her official duties. Lone
Star Coll. Sys. v. Immigration Reform Coal. of Tex.(IRCOT), 418 S.W.3d 263, 272
(Tex. App.—Houston [14th Dist.] 2013, pet. denied) (citing City of El Paso v.
Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)). To come within the ultra vires
exception to immunity, “a suit must not complain of a government officer’s exercise
of discretion, but rather must allege, and ultimately prove, that the officer acted
without legal authority or failed to perform a purely ministerial act.” Heinrich, 284
S.W.3d at 372. An official acts without legal authority if she exceeds the bounds of
her authority or if her acts conflict with the law itself. Houston Belt & Terminal Ry.
Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016). If a state official exercises
judgment without reference to or in conflict with the constraints of the law
authorizing the official to act, such action may be properly challenged through an
ultra vires suit. See id.
In other cases, plaintiffs have pleaded viable ultra vires claims where they
alleged a government official failed to comply with a statute. See, e.g., Sw. Bell Tel.,
L.P. v. Emmett, 459 S.W.3d 578, 587-89 (Tex. 2015) (plaintiffs alleged the Harris
County Flood District Commissioners acted ultra vires when they “refus[ed] to
accept responsibility for repayment of AT&T’s relocation costs” when “statute
require[d] the District to bear the relocation costs”); Patino v. Tex. Dep’t of Ins.-Div.
of Workers’ Comp., __ S.W.3d __, 2020 WL 1265396, at *8 (Tex. App.—Houston
[14th Dist.] Mar. 17, 2020, no pet.) (plaintiffs alleged the Commissioner “acted
24
beyond his statutory authority” by “removing doctors from the approved doctor list
without following the protocol set forth in the statute”).
We review questions of statutory construction de novo; our primary objective
is to give effect to the Legislature’s intent as expressed in the language of the statute.
City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We construe the
statute’s words according to their plain and common meaning unless a contrary
intention is apparent from the context. Id. at 625-26. “In election cases, however,
we are constrained in our interpretation by the principle that any statutory provision
that restricts the right to hold office must be strictly construed against ineligibility.”
Hodges, 92 S.W.3d at 495.
In relevant part, section 141.041 states as follows:
(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.
* * *
(f) The secretary of state shall adopt rules as necessary to implement
this section.
Tex. Elec. Code Ann. § 141.041(a), (f) (emphasis added). Setting deadlines for
compliance with these provisions, the Advisory states:
Candidates seeking nomination by the convention process will also
now be required to deliver a filing fee or a completed petition in lieu
25
of filing fee, along with a copy of their application for nomination, to
the Secretary of State’s office (for statewide or district offices) or the
county judge (for county or precinct offices) by 6:00 PM on December
9, 2019.
a. If a candidate does not complete the petition in lieu of filing fee or
pay the filing fee, they will not be eligible for nomination by the
party convention process, even if they have completed and
submitted their application for nomination.
Election Advisory No. 2019-13 (second and third emphases added). Nominating
conventions are generally held in March and April of the election year. See Tex.
Elec. Code Ann. § 181.061(a)-(c). Therefore, the December 9, 2019 deadline
prescribed in the Advisory falls approximately three months before the first
convention.
Construing section 141.041 against ineligibility (see Hodges, 92 S.W.3d at
495), the statute limits its requirements only to those candidates that have actually
been nominated at the convention. But the Advisory impermissibly expands these
requirements to all candidates seeking nomination at the convention. The Advisory
therefore exceeds the bounds of authority granted under section 141.041. See
Houston Belt & Terminal Ry. Co., 487 S.W.3d at 158.
This interpretation of section 141.041’s applicability finds additional support
in other provisions of the Texas Election Code. For example, section 161.008
(entitled “Certification of Nominees for Statewide and District Offices for Placement
on General Election Ballot”) provides as follows:
[T]he secretary of state shall certify in writing for placement on the
general election ballot the name of each candidate nominated at a
primary election or convention of a political party for a statewide or
district office.
Tex. Elec. Code Ann. § 161.008(a) (emphasis added); see also id. § 172.117(a)
(“The county chair shall certify . . . the name and address of each primary candidate
26
who is nominated for a county or precinct office for placement on the general
election ballot.”) (emphasis added), § 181.068(a) (“The presiding officer . . . shall
certify . . . for placement on the general election ballot the name and address of each
candidate nominated by the convention.”) (emphasis added). Under this section, a
candidate that has been “nominated” is one who has been selected through a primary
or a convention — not one that seeks the nomination. See id. § 161.008(a).
Applying this same construction of “nominated” to section 141.041, the Advisory is
plainly in conflict with the law that authorized its promulgation. Therefore, this
action properly may be challenged through an ultra vires suit and is not precluded
by sovereign immunity. See Houston Belt & Terminal Ry. Co., 487 S.W.3d at 158.
In sum, Appellees did not make the showing necessary to waive sovereign
immunity with respect to their claim challenging the constitutionality of section
141.041, but Appellees’ claim challenging the Advisory may proceed under the ultra
vires exception to sovereign immunity.
III. Temporary Injunction
The trial court’s temporary injunction enjoins Hughs from enforcing section
141.041’s requirements at the time of the Advisory’s December 9, 2019 deadline or
“at any other time.” We therefore construe the injunction to enjoin the enforcement
of both section 141.041 and the Advisory.
We concluded above that sovereign immunity precludes Appellees’ claim
challenging the constitutionality of section 141.041. Therefore, to the extent the
injunction enjoins enforcement of section 141.041, the trial court lacked subject
matter jurisdiction to enter the injunction.
Turning to the enforcement of the Advisory, Appellees state in their first
amended petition that they seek injunctive relief under Texas Election Code section
27
273.081, which states:
A person who is being harmed or is in danger of being harmed by a
violation or threatened violation of this code is entitled to appropriate
injunctive relief to prevent the violation from occurring or continuing.
Tex. Elec. Code Ann. § 273.081.
The purpose of a temporary injunction is to preserve the status quo pending a
trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002);
EMS USA, Inc. v Shary, 309 S.W.3d 653, 657 (Tex. App.—Houston [14th Dist.]
2010, no pet.). Generally, to obtain a temporary injunction, the applicant must prove
a valid cause of action against the defendant, a probable right to relief, and imminent,
irreparable injury in the interim. See Butnaru, 84 S.W.3d at 204; EMS USA, Inc.,
309 S.W.3d at 657. But where injunctive relief is provided for by a specific statute,
this court has held that the applicant need not prove these common law elements.
See, e.g., City of Houston v. Proler, 373 S.W.3d 748, 763-64 (Tex. App.—Houston
[14th Dist.] 2012), rev’d on other grounds, 437 S.W.3d 529 (Tex. 2014) (concluding
that Texas Labor Code section 21.258 “supersed[ed] the equitable requirements
generally applicable to common-law injunctive relief”); 8100 N. Freeway Ltd. v.
City of Houston, 329 S.W.3d 858, 861 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (analyzing section 243.010 of the Local Government Code and concluding that,
“when the applicant has shown a violation of a statute that authorizes injunctive
relief, it need not prove imminent, irreparable injury”); Gulf Holding Corp. v.
Brazoria Cty., 497 S.W.2d 614, 619 (Tex. Civ. App.—Houston [14th Dist.] 1973,
writ ref’d n.r.e.) (interpreting a provision in the former Open Beach Act, the court
concluded that the applicant need not show irreparable injury); see also Cook v. Tom
Brown Ministries, 385 S.W.3d 592, 599 (Tex. App.—El Paso 2012, pet. denied)
(applying Texas Election Code section 273.081, the El Paso Court of Appeals held
that “the statute’s express language supersedes the common law injunctive relief
28
elements such as imminent harm or irreparable injury and lack of an adequate
remedy at law”).
When injunctive relief is provided for by statute, we review the trial court’s
decision on a temporary injunction application for an abuse of discretion. 8100 N.
Freeway Ltd., 329 S.W.3d at 861. We do not substitute our judgment for that of the
trial court and may not reverse unless the trial court’s action was so arbitrary that it
exceeded the bounds of reasonableness. Id.
As discussed above, we conclude that the Advisory conflicts with section
141.041 in part by impermissibly expanding the section’s requirements to all minor-
party candidates seeking nomination at a convention. Considered in conjunction
with Texas Election Code section 273.081, this conclusion supports the trial court’s
finding that Appellees “are in danger of being harmed by a violation or threatened
violation” of the Election Code. See Tex. Elec. Code Ann. § 273.081. Therefore,
the trial court did not abuse its discretion by enjoining Hughs’s enforcement of the
Advisory 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. See 8100 N. Freeway Ltd., 329 S.W.3d at 861.
Candidates who ultimately secured their party’s nomination as a result of the
convention process, however, must comply with section 141.041. The injunction
thus is erroneous to the extent that it relieves candidates nominated by convention
of any obligation to comply with section 141.041 at any time. Therefore, we modify
the injunction’s language by deleting the bolded text from the following paragraphs:
The Court ORDERS that Defendant Hughs is temporarily enjoined
from refusing to accept or rejecting applications for nomination from
third-party candidates on the grounds that the applicant did not pay a
filing fee or submit a petition in lieu thereof at the time of filing or at
any other time.
29
The Court ORDERS that Defendants Hidalgo and Trautman are
temporarily enjoined from refusing to accept or rejecting applications
for nomination from third-party candidates on the grounds that the
applicant did not pay a filing fee or submit a petition in lieu thereof at
the time of filing or at any other time.
The Court ORDERS that Defendant Hughs is temporarily enjoined
from refusing to certify third-party nominees for the general-election
ballot on the grounds that the nominee did not pay a filing fee or submit
a petition in lieu thereof at the time of filing or at any other time.
The Court ORDERS that Defendants Hidalgo and Trautman are
temporarily enjoined from refusing to certify third-party nominees for
the general-election election ballot on the grounds that the nominee did
not pay a filing fee or submit a petition in lieu thereof at the time of
filing or any other time.
CONCLUSION
We affirm as modified in part the trial court’s temporary injunction and
reverse and remand in part for further proceedings consistent with this opinion.
Appellees failed to plead a viable constitutional claim challenging section 141.041
as necessary to waive Hughs’s sovereign immunity. Subject matter jurisdiction over
that claim is therefore lacking as a matter of law and the trial court erred by enjoining
section 141.041’s enforcement. But Appellees’ claim challenging the Advisory
constitutes an ultra vires claim that is not barred by sovereign immunity and we
modify the trial court’s temporary injunction as set forth above.
Our December 20, 2019 stay order is lifted.
Due to the time-sensitive nature of this matter, the Court will not entertain
motions for rehearing. See Tex. R. App. P. 2.
30
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Jewell, and Hassan.
31