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Sammy BICKHAM, Jr., Kristen Bickham, and Kirk Launius, Appellants v. DALLAS COUNTY, Texas, Toni Pippins-Poole, in Her Official Capacity as Dallas County Central Counting Station Manager, Daniel Bradley, in His Official Capacity as Dallas County Central Counting Station Supervisor, Nicolas Mevellec, in His Official Capacity as Dallas County Central Counting Station Assistant Tabulation Supervisor, and Election Systems & Software, LLC, Appellees
In this appeal, we consider whether “election watchers”—persons appointed to observe the conduct of an election under Chapter 33 of the Texas Election Code—have standing to pursue claims against certain election officials for alleged violations of chapter 33 and the Texas Administrative Code. Concluding they do not, we affirm the trial court's judgment dismissing appellants' claims for lack of jurisdiction.
In recent years, appellants Sammy Bickham, Jr., Kristin Bickham, and Kirk Launius served as appointed election watchers in the Dallas County Central Counting Station (DCCCS). The Bickhams were appointed by various candidates and political action committees for the 2016, 2018, and 2019 elections, and Launius was appointed by a political action committee for the 2019 election. All three appellants have been re-appointed as watchers for the 2020 elections.
Appellants sued Dallas County, Toni-Pippins Poole in her capacity as DCCCS Manager, Daniel Bradley in his capacity as DCCCS Tabulation Supervisor, Election Systems & Software, LLC (ES&S), Nicolas Mevellec, an ES&S employee and Assistant Tabulation Manager at DCCCS, and other parties that appellants have now dismissed from the suit.
After an opportunity to amend their petition, appellants asserted six claims:
• Claim 1: In previous elections, Poole, Bradley, and Mevellec counted early votes more than once prior to Election Day and printed early vote results prior to Election Day, in violation of Texas Administrative Code Rule 81.36(n)1 and election code section 33.056(a)2;
• Claim 2: Mevellec “uses illegal private internet capable and internet active computer devices to record, store and remove election data from the Central Counting Station thus obstructing and preventing watchers from observing and documenting evidence of vote tabulation illegalities”;
• Claim 3: “Defendants have repeatedly prevented Plaintiffs from sitting near election officials performing Central Counting Station activities”;
• Claim 4: “Defendants have prevented Plaintiffs ․ from inspecting returns and other election records in Central Counting”;
• Claim 5: Pippins-Poole prevented the Bickhams from leaving the Central Counting Station room to go to the bathroom and/or use their phones; and
• Claim 6: Sammy Bickham did not receive a complete DCCCS central accumulator audit log from Bradley.
Appellants alleged these violations occurred during the May 2019 bond election and other previous elections. They sought prospective injunctive relief, declaratory relief, and a writ of mandamus, seeking to prevent similar election-code violations in upcoming elections.3
Appellees filed pleas to the jurisdiction and special exceptions to both appellants' original petition and to the amended petition. Among the complaints raised in their pleas, appellees challenged appellants' common law and statutory standing to bring their claims. Generally, appellees argued that appellants are in the same position as any other citizen or voter, and, in the absence of any particularized harm, they lacked common-law standing to bring a lawsuit to insist that the government follow the law. Appellees also maintained that appellants did not have statutory standing because the election code does not provide for a private, civil cause of action.
After considering appellees' pleas to the jurisdiction and special exceptions and appellants' responses, the trial court granted the pleas without stating a basis for its ruling and dismissed the lawsuit. This appeal followed.
In four issues, appellants generally contend the trial court erred by dismissing their lawsuit because:
1. As election watchers, appellants had standing to challenge election officials' actions that violated the election code and caused appellants particularized harm;
2. Trial courts have jurisdiction to issue writs of mandamus in election cases;
3. Pippins-Poole and Bradley are not immune from liability for their ultra vires acts in the conduct of Dallas County elections; and
4. Appellants “properly alleged” that ES&S and Mevellec “effectively run elections in Dallas County.”
Because we conclude that appellants lack standing to assert their claims, we address only their first issue.
Standard of Review
Standing is a constitutional prerequisite to maintaining suit. Jefferson Cty. v. Jefferson Cty. Constables Ass'n, 546 S.W.3d 661, 666 (Tex. 2018). Questions of standing implicate the court's subject-matter jurisdiction over the case. Id. We review questions of jurisdiction de novo. Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020).
In evaluating standing, we construe the pleadings in the plaintiffs' favor. In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). We also consider relevant evidence, if any, that is offered by the parties. Id. A trial court must grant a plea to the jurisdiction, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action upon which the trial court has jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). But, if a party has repleaded in an attempt to cure disputed jurisdictional issues and the court can ascertain the nature and issues of the controversy and the evidence that probably would be relevant, that party is not entitled to an opportunity to replead. Save Our Springs All., Inc. v. City of Austin, 149 S.W.3d 674, 686 (Tex. App.—Austin 2004, no pet.).
The election code defines a “watcher” as “a person appointed ․ to observe the conduct of an election on behalf of a candidate, a political party, or the proponents or opponents of a measure.” Tex. Elec. Code § 33.001. Under chapter 33 of the election code, a watcher is entitled to:
• “observe any activity conducted at the location at which the watcher is serving,” id. § 33.056(a);
• “sit or stand conveniently near the election officers conducting the observed activity,” id.;
• “sit or stand near enough to the member of a counting team who is announcing the votes to verify that the ballots are read correctly or to a member who is tallying the votes to verify that they are tallied correctly,” id. § 33.056(b);
• “inspect the returns and other records prepared by the election officers at the location at which the watcher is serving,” id. § 33.056(c);
• make written notes, id. § 33.056(d);
• “call the attention of an election officer to any occurrence that the watcher believes to be an irregularity or a violation of law and may discuss the matter with the officer,” id. § 33.058(b); and
• accompany the officer in making the delivery of election records, id. § 33.060.
Chapter 33 provides certain remedies for violations of its provisions. For example, an election watcher who witnesses a violation has a right to call the problem to the attention of an election officer, and that election officer may, in turn, refer the matter to the presiding officer. Elec. Code § 33.058(b). Chapter 33 also sets forth criminal penalties for someone who violates a watcher's ability to complete his or her duties. Id. § 33.061. Such violations are Class A misdemeanors. Id.
In their first issue, appellants contend the trial court erred by determining they lacked standing to bring their claims.4 We begin our discussion of this issue by noting that no Texas court has ever recognized that a plaintiff's status as a voter, without more, confers standing to challenge the lawfulness of governmental acts. Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). And, appellants do not make such an allegation. Rather, they allege standing not as voters, but instead on the basis of their positions as election watchers. Specifically, appellants argue that chapter 33 of the election code granted them certain rights, duties, and authority, and that by violating those rights, appellees caused appellants particularized harm.
Citizens generally lack standing to bring a lawsuit challenging the lawfulness of governmental acts. Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011) (citing Brown, 53 S.W.3d at 302). After all, “governments cannot operate if every citizen who concludes that a public official has abused his discretion is granted the right to come into court and bring such official's public acts under judicial review.” Williams v. Lara, 52 S.W.3d 171, 180 (Tex. 2001) (discussing limitations on taxpayer standing).
Both the Texas Supreme Court and the United States Supreme Court have cautioned that courts must carefully apply jurisdictional limitations such as standing because these limitations “identif[y] those suits appropriate for judicial resolution.” See Brown, 53 S.W.3d at 305 (citing Whitmore v. Arkansas, 495 U.S. 149, 154–55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), and discussing Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). In Texas, common law standing requires establishing a concrete injury to the plaintiffs and a real controversy between the parties that will be resolved by the court. Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012). “Standing consists of some interest peculiar to the person individually and not as a member of the general public.” In re Kherkher, 604 S.W.3d 548, 551 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (mandamus denied). This is to ensure that there is a real need for judicial review, so that “other branches of government may more appropriately decide ‘abstract questions of wide public significance,’ particularly when judicial intervention is unnecessary to protect individual rights.” Andrade, 345 S.W.3d at 7 (citing Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).
Standing to sue may be predicated on either statutory or common law. In re Kherkher, 604 S.W.3d at 551. In conferring statutory standing, the legislature may by statute exempt litigants from proof of the “special injury” required to establish common-law standing. See, e.g., Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 472 (Tex. 1993) (Doggett, J., concurring and dissenting) (providing examples—including the Texas Declaratory Judgments Act—of statutory standing granted in the absence of personal injury-in-fact). Common-law standing rules apply in all cases absent a statutory exception to the contrary. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984).
The legislature may grant private standing to bring such actions, but it must do so clearly. See Brown v. De La Cruz, 156 S.W.3d 560, 567 (Tex. 2004). “When standing has been statutorily conferred, the statute itself serves as the proper framework for a standing analysis.” Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851 (Tex. App.—Fort Worth 2005, no pet.). We apply a “strict rule of construction” to statutory enforcement schemes and imply causes of action only when the drafter's intent is clearly expressed from the language as written. De La Cruz, 156 S.W.3d at 567. The fact that a statute has been violated and some person has been harmed does not automatically give rise to a private cause of action in favor of that person. Cannon v. Univ. of Chicago, 441 U.S. 677, 687, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).
Common-law standing, in contrast, requires proof of a special injury. To establish common-law standing, a plaintiff must first establish the plaintiff suffered an “injury-in-fact.” Heckman, 369 S.W.3d at 154–55. To demonstrate an injury-in-fact, “[t]he plaintiff must be personally injured—he must plead facts demonstrating that he, himself, rather than a third party or the public at large, suffered the injury.” Heckman, 369 S.W.3d at 155. Second, the injury must be traceable to the defendant. Id. Third, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Id. (quoting DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 (Tex. 2008)).
Our analysis is limited to the claims and injuries as alleged in the petition and whether those claims and injuries are sufficient to allege jurisdiction. See Sykes, 136 S.W.3d at 639; Save Our Springs All., 149 S.W.3d at 686. On this point, we part company with the dissent, which urges that we should consider unpleaded equal protection and voter dilution claims as a basis for appellants' standing. As the supreme court explained in Sykes, once a plaintiff “has been provided a reasonable opportunity to amend” in response to a plea to the jurisdiction but the amended pleading is insufficient to allege jurisdiction, the amended petition should be dismissed with prejudice. Sykes, 136 S.W.3d at 639–40 (“A trial court must grant a plea to the jurisdiction, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action upon which the trial court has jurisdiction.”). Appellants have been granted their opportunity to amend, and we consider their standing to assert the claims they have pleaded.
1. Statutory Standing
Although appellants pleaded standing on the basis of their rights under chapter 33, they do not specifically argue the election code confers them standing to assert their rights. Nevertheless, it is our duty to determine standing as a prerequisite to subject-matter jurisdiction. See Garcia v. City of Willis, 593 S.W.3d 201, 206 (Tex. 2019) (although neither party questioned standing, “we are duty-bound to determine whether it exists”). “The importance of this inquiry—even when not urged by the parties—cannot be overstated.” Id.
Appellees argue that when, as here, a private right of action is pursued for a statutory violation, standing must be established under that statute. According to appellees, appellants cannot do so because the legislature provided specific remedies for violations of statutes relating to election watchers, and there is no private, civil action among those remedies.
As we have discussed, chapter 33 provides certain remedies for violations of its provisions. See Elec. Code §§ 33.058(b) (watcher may call election officer's attention to irregularity or violation of law); 33.061 (penalty for unlawfully obstructing watcher). But there is nothing in these provisions to show or imply that the legislature explicitly granted a private right of action for election watchers to sue for chapter 33 violations. See De La Cruz, 156 S.W.3d at 563 (finding no private right of action where statute provided for a penalty when violated but was “silent about who may collect it”). Given the legislature's determination to provide only criminal penalties, but not a civil cause of action, we conclude election code chapter 33 does not create standing for appellants to sue.
Nor do other election code sections—even those that include certain remedies for violations—provide standing for appellants. Section 273.081, for example, authorizes injunctive relief for a person “who is being harmed or is in danger of being harmed by a violation or threatened violation of this code.” Elec. Code § 273.081. And, section 273.061 provides that “the supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.” Id. § 273.061.
As other courts have already explained, neither provision automatically creates standing for plaintiffs. In Andrade, the supreme court addressed whether section 273.081 conferred standing on voters who alleged that the Secretary of State's certification of a paperless direct-recording electronic-voting machine, known as “eslate,” deprived them of their statutory right to a recount. See Andrade, 345 S.W.3d at 17. The supreme court held that section 273.081 “does not create standing—it merely authorizes injunctive relief.” Id. The court explained that statutes such as section 273.081, “which permit ‘persons aggrieved,’ ‘persons adversely affected,’ [or] ‘any party in interest,’ to sue, still require that the plaintiff show how he has been injured or damaged other than as a member of the general public.” Id. (quoting Scott v. Bd. of Adjustment, 405 S.W.2d 55, 56 (Tex. 1966)). Because the voters made no showing that the Secretary of State's certification of the “eslate” machine harmed them other than as members of the general public, the court concluded that plaintiffs lacked standing to sue. Id.
And, in Kherkher, the Fourteenth Court of Appeals addressed whether section 273.061 conferred standing on a plaintiff challenging the nomination of a candidate for district judge by the local Democratic Party. Kherkher, 604 S.W.3d at 551–53. Relying on the reasoning in Andrade, the court observed that if the language found in section 273.081—“[a] person who is being harmed or is in danger of being harmed by a violation or threatened violation of this code”—does not confer standing without a showing of harm other than as a member of the general public, then there is no reason to conclude that section 273.061 would create individual standing without the claimant showing a particularized injury beyond that of the general public. Id. at 553. For the same reasons as expressed in Andrade and Kherkher, we conclude neither section 273.081 nor section 273.061 of the election code creates standing for appellants to enforce their rights under the election code.
2. Common-law Standing
We next consider whether appellants have established that they have suffered the “injury-in-fact”—the concrete, particularized, actual or imminent invasion of a legally protected interest—required to show they have standing under the common law. See Heckman, 369 S.W.3d at 154–55. Appellees argue that appellants cannot show they have an interest in the alleged violations that is distinct from members of the general public, and thus they have failed to allege that appellees caused appellants a particularized injury.
We assume for purposes of this discussion that appellees committed violations of the election and administrative codes. But election watchers, by definition, are “appointed ․ to observe the conduct of an election on behalf of a candidate, a political party, or the proponents of a measure.” Elec. Code § 33.001 (emphasis added). Thus, as appellees correctly point out, any injury-in-fact stemming from the alleged election code violations would not be suffered by appellants individually. Rather, the injury would be suffered by the candidate, political party, or proponents or opponents of a measure for whom they serve. As the dissent correctly notes, the election watcher's purpose is to act as the candidate's “eyes and ears.” If the watchers are prevented from being the candidate's “eyes and ears,” that particular harm is suffered by the candidate, not by the election watcher.5
Appellants allege standing on the basis of their special status as election watchers. They allege they have suffered various particularized injuries unique to their roles as election watchers, including:
• having to be physically present more often;
• being prevented from “witnessing and documenting activities as authorized by the election code” causing them injury because they will have incomplete affidavits for use in future election contests;
• having to stand;
• not being able to use the bathroom; and
• not having a complete audit log in violation of the Texas Administrative Code.
These alleged injuries, however, do not constitute a “legally protected interest,” even under the specific provisions appellants cite. See Heckman, 369 S.W.3d at 154–55. Section 33.055 says nothing about guaranteeing bathroom breaks, use of phones, or the ability to complete affidavits for future use. Likewise, administrative code rule 31.36(n) says nothing about limiting the number of days election officers must work. And, section 33.056 plainly provides that a watcher is entitled “to sit or stand conveniently near the election officers conducting the observed activity.” Elec. Code § 33.056 (emphasis added). That provision does not guarantee that the watcher must be allowed to sit.
Because appellants have not shown particularized harm from violation of a legally protected interest, they cannot assert an injury-in-fact. See Tex. Dep't of Pub. Safety v. Salazar, 304 S.W.3d 896, 906 (Tex. App.—Austin 2009, no pet.) (holding that appellees lacked standing where they failed to establish that the altered appearance of driver's licenses implicated a recognizable legally protected interest). Absent this showing, we conclude appellants have failed to meet their burden to show an injury-in-fact, and, as a result, lack standing to pursue their claims.
In reaching our conclusion that appellants lack standing, we have considered and rejected additional arguments made by appellants and by the dissent. First, we reject appellants' contention that Blum v. Lanier, 997 S.W.2d 259 (Tex. 1999), mandates a different result. In Blum, the supreme court held that a qualified voter who signed an initiative petition had standing to challenge the form in which a referendum was put to the citizens. Id. at 262. Because Blum objected to the ballot description of the proposed charter amendment, the supreme court concluded he could seek to enjoin the referendum election. Id. The court reasoned that citizens who exercise their rights under initiative provisions act as and “become in fact the legislative branch of the municipal government,” and as such, have an interest in the election distinct from that of the general public. Id. at 262.
Here, appellants contend that, like the petition signer in Blum, they are challenging the process rather than the election. But as the supreme court has recognized, Blum is a narrow holding—affording petition signers the right to challenge the referendum process because they are functioning as the legislative branch. Brown, 53 S.W.3d at 303. Blum relied on the supreme court's determination in Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645 (1951), that the signers of a voter-initiated election had a justiciable interest in having their proposed ordinance submitted to the people for a vote. Glass, 244 S.W.2d at 648. The Blum court extended the principle in Glass to give the petition signer not merely an interest in the election being held, but also in having it validly conducted. Brown, 53 S.W.3d at 297. Those narrow holdings are consistent with the judiciary's limited role in election disputes, which provides a remedy to undo elections tainted by fraud, illegality, or other irregularity. Id.; Blum, 997 S.W.2d at 262.
Appellants are not petition signers, and unlike the petition signers in Blum or Glass, they have not shown an election interest that is distinct from voters at large. Although they allege impurity in the process, that interest is not distinct from voters at large, all of whom are presumed to want the election to be conducted in compliance with the law. To find standing as suggested by appellants would require an expansion of Blum, and it is not our proper role as an intermediate court to do so. Save Our Springs All. Inc. v. City of Dripping Springs, 304 S.W.3d 871, 882 (Tex. App.—Austin 2010, pet. denied).
Second, we reject the dissent's suggestion that our opinion is at odds with the many years of voter's rights jurisprudence. Appellants have not made allegations asserting denial of equal protection as in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (voters have standing to bring equal protection challenges to complain of vote dilution), or in Andrade, 345 S.W.3d at 10–11 (voters have standing to bring equal-protection complaints that an electronic voting system is susceptible to fraud and prone to malfunction, depriving them of the ability to determine whether their votes have been counted), the cases the dissent relies on to conclude appellants have standing. Nor have appellants asserted violations of the Voting Rights Act or the need for federal oversight of elections, concerns also expressed by the dissent.
Our opinion does not address these concerns because appellants did not raise them nor plead them as a basis for jurisdiction. We express no opinion as to whether that equal-protection jurisprudence and accompanying protections might have been available to appellants had they chosen to invoke them. They have not, and given the particular procedural posture of this case, our duty is to examine the claims and injuries as alleged in the amended petition to determine if those particular claims and injuries are sufficient to confer standing. See H.S., 550 S.W.3d at 155. Although the dissent maintains that the discussion of equal protection claims such as in Baker and Andrade are a matter of merely considering an argument not raised by the parties, which we may clearly do, we cannot agree. Following the dissent's lead would require us to reimagine the claims and injuries pleaded by the appellants and to consider whether they are sufficient to show standing. Cf. Sykes, 136 S.W.3d at 639–40 (trial court must dismiss plaintiff's action, if, after providing appropriate opportunity to amend, pleadings do not state cause of action upon which trial court has jurisdiction).
We conclude that the legislature has not conferred statutory standing to appellants exempting them from showing proof of a special injury. Nor have appellants alleged claims or injuries showing they have common-law standing to assert their claims. Because appellants' lawsuit, as pleaded, fails for lack of standing, we overrule appellant's first issue. Having done so, we need not address their remaining issues.
Accordingly, we affirm the trial court's judgment of dismissal.
Appellants are voters appointed as poll “watchers” under Chapter 33 of the election code. They assert, based on alleged experience in recent elections, that appellees—the county and officials responsible for conducting the count under observation—will materially impede their ability to assure an accurate and legal count of the votes. Appellees assert that appellants lack standing over any such claim because, according to appellees, watchers are required to, and cannot, show an injury different in kind from all other voters. Neither side directs us to case law addressing whether a watcher's threatened injury of being deprived of access supports standing. I would find standing at this stage. Because the majority concludes otherwise, I dissent.
Standard of Review
In view of our jurisdictional posture, we review the trial court's decision de novo, assume the truth of the appellant's factual averments, and ignore the merits of their allegations unless “the defendant pleads and proves that the allegations were fraudulently made to confer jurisdiction on the court.” Westbrook v. Horton, No. 2-06-159-CV, 2007 WL 1299247, at *2 (Tex. App.—Ft. Worth May 3, 2007, no pet.) (mem. op.) (citation omitted); see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Thus, “dismiss[al] ․ is proper only when it is impossible for the ․ petition to confer jurisdiction on the trial court.” HealthSouth Med. Ctr. v. Emp'rs Ins. Co. of Wausau, 232 S.W.3d 828, 830 (Tex. App.—Dallas 2007, pet. denied). The presence of one party presenting a colorable claim supporting standing is enough to confer jurisdiction and move on to the merits. Andrade v. NAACP of Austin, 345 S.W.3d 1, 6 n.9 (Tex. 2011).1
The sole question before us is a legal one: is the judiciary open to voters or poll watchers seeking prospective relief from practices they allege, and we must assume at this stage, have the intent or the effect of impeding their ability to observe the count of the votes? Appellees urge that appellants are obliged to show more than their constitutional standing.2 Rather, claim appellees, appellants must overcome the additional, prudential requirements of showing a special and unique injury apart from the general public and that as mere voters and watchers they cannot do so.
Because counting the votes is integral to the election process, and laws aimed at observing the votes can only be intended to avoid (or deter) the dilution of the lawful vote, I believe any voter within the reach of the count, and certainly one appointed as a “watcher” of it, has standing to complain of threatened dilution. That principle was established in the watershed decision of Baker v. Carr, 369 U.S. 186, 206, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and governs in our courts as well. See Andrade, 345 S.W.3d at 8.
Separately, even if these claims were subject to the additional, prudential standing requirements of a more particularized injury, that unique injury is clear. In any later contest of the legitimacy of the election, poll “watchers” alone would be available as witnesses independent of the officials whose conduct is challenged. Denying or obstructing their view of the count directly hampers their ability to act as witnesses or otherwise speak on behalf of the candidate or party who appointed them. This is an injury that they—and no other voter—can claim.
Finally, I reject as absurd, and likely unconstitutional, appellees' argument that the remedy for any of the obstructions that we must assume here lies with local executive branch officials or the candidates or political parties. The process by which the election is conducted—as opposed to its results—is primarily, if not exclusively, the concern of the voters—not the political parties, their candidates or officeholders. The latter are tenants at sufferance of the former. It is for these reasons that direct standing of voters who claim to be affected by a threat to their vote (much less those separately appointed to safeguard it) was recognized in Baker v. Carr.
I. The Threatened Injury Here Is One that Has Long Been Recognized to Support Standing Directly
Until the votes are counted and the results are declared, the interests of the candidates and the political parties are contingent. The election itself and the process by which it is conducted, including and especially the question of whose vote will be counted, is directly the concern of the voters.3 The election, like the offices under consideration, belong to them—not to the parties or their candidates.
Threatened injury in the form of dilution, i.e., of not actually counting some votes or counting them alongside others that should not be counted, falls firstly on the voters themselves and amounts to an injury in fact. And, while that injury is shared among the voters, it supports standing directly, as it must. See Baker, 369 U.S. at 206, 82 S.Ct. 691; Andrade, 345 S.W.3d at 8.4 That injury is independent of the result of the total tabulation. Andrade, 345 S.W.3d at 8. Thus, it is the candidates—and not the voters—who would lack standing to complain pre-election of whose vote might or might not be counted. Roberts, 883 F.2d at 621; Giles v. Ashcroft, 193 F. Supp. 2d 258, 264 (D.D.C. 2002).
Conversely, after the election, it is the candidates, not the voters, whose interests are primarily at stake. Tex. Elec. Code § 232.002 (“Any candidate in an election may contest the election.”) (emphasis added); see also id. § 232.003–.008. Should a candidate decide to mount such a challenge, he or she will be heard only to the extent he or she can prove that the number of votes illegally cast (or illegally discarded) would change the result. Infra. The interests of the wholly or partially disenfranchised voter, at that point, will be pursued only at the choice of a candidate, and remedy for the injury will rest on the candidate's fate.
It is for this reason that our supreme court has been careful to distinguish between claims of voter standing to challenge the results of an election, on the one hand, and the process, on the other. Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001); Blum v. Lanier, 997 S.W.2d 259, 262–64 (Tex. 1999). The voter's interest in his or her vote and in having it counted is separate from (and does not belong to) any candidate or party. While I am aware of no decision of this Court or our supreme court saying so, it seems obvious that the counting, or perhaps even the “recounting” of votes, prior to the announcement of the result is an integral part of the process. E.g., Meyer v. Lamm, 846 P.2d 862, 870–71 (Colo. 1993) (collecting like holdings of courts in other states across the country).5
Vote dilution claims are most often litigated as more abstract arguments about the possible effects of malapportionment, configuration of political districts, or conditions on the right to cast a ballot. The notion that some votes that have been cast will not be counted or that others might be counted improperly is the most extreme and obvious violation of the “one person, one vote” assurance of Baker. As someone once observed: “Those who cast the votes decide nothing. Those who count the votes decide everything.”6
Indeed, the entire and sole evident purpose of Chapter 33's creation of the office of poll “watcher” was to avoid the very injury Andrade and Baker recognize as sufficient to support standing. Reflecting an appreciation for this (and of whose interests and potential injuries are of primary importance here), the legislature, mandated that only voters could serve as poll watchers and, at the same time, barred any candidate from serving in that capacity. Elec. § 33.031–.032. While appellants claim standing as poll “watchers” without urging that all such watchers are, by definition, also voters, I fail to see how that additional status detracts from their standing. Poll watchers may be appointed by and acting on behalf of a candidate or a political party, but the interests they advance most directly are their own.
All of this was obvious in 1962 when the United States Supreme Court declared that the voters' right to vote was worthy of judicial protection directly and on its own account, despite the injury being generally shared by all of them. I would think it was equally obvious more recently and closer to home when our own supreme court held the same in Andrade and in Blum, where it rejected an election contest as the exclusive remedy for pre-election controversies that might be avoided by injunction actions brought directly by voters themselves. See Blum, 997 S.W.2d at 263–64 (“In short, if the matter is one that can be judicially resolved in time to correct deficiencies in the ballot without delaying the election, then injunctive relief may provide a remedy that cannot be adequately obtained through an election contest.”).
Chapter 33's provisions for appointing some voters as “watchers” assures the whole of the electorate that someone will have the effective ability to dispel allegations of malfeasance, or, less often one would hope, to serve as witnesses to it thereafter. It also, if less directly, protects the interests of the candidates, the parties, and the local election officials themselves who will (or would) be protected from potentially spurious claims of misconduct, firstly, by the permitting full, lawful access to those entitled to observe and, secondly, by judicial confirmation of the lawfulness of their process.
I therefore reject the idea that standing in this context requires plunging into prudential considerations and searching for an injury different in type from that suffered by others. If local election officials, strapped for cash, announced that all voters would be required to pay a $10 tax as a condition of voting, I would concede that application of the tax would affect everyone. While the tax would obviously violate the Twenty-Fourth Amendment,7 we could not reach the merits to say so without first addressing our jurisdiction. Likewise, if our next Governor were to find the results of his or her own election so pleasing that all future elections for the office should be cancelled, the deprivation would be statewide and universal in effect. Still, the lesson of Baker, as I will discuss further below, is that the judiciary, state or federal, cannot defer to local or state authorities on the broad scope of the actual or threatened injury. See FEC v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (“where a harm is concrete, though widely shared, the Court has found ‘injury in fact’ ”).
Whether any of the present claims would “ultimately, entitle[ ] [appellants] to relief” is hardly clear at this stage. Andrade, 345 S.W.3d at 10. The sole question, however, is whether the nature of the impairment produces a legally cognizable injury. Id. (citing Baker, 369 U.S. at 207–08, 82 S.Ct. 691). I thus disagree with the majority's conclusion that the special exception practice is relevant, much less controlling of the standing question before us.8 The injury claimed in this case—that local counting practices conflict with governing law and may result in an improper count—is surely shared by all voters alike and is legally cognizable as such regardless of the title affixed to the claim. Nevertheless, it is enough in and of itself to support the standing of any voter, much less one appointed as a “watcher,” to come to court for redress. See id. (plaintiff voters had standing over claim of inability “to determine whether their votes were counted”).
II. Should a Poll Watcher's Standing Turn on the Presence of Injury Beyond the Obvious Potential Dilution, They Suffer It
The Legislature created the office of watcher, at least in substantial part, for the watcher to be available publicly to attest to the process, including in any later contest for office. Unlike the general public, or even other voters, poll watchers appointed to perform that function have (or are supposed to have) the unique ability to attest to the circumstances of the election process and the count. They alone would have the ability, either for themselves or for the candidate or party who appointed them, to publicly declare the process to have been suspect or, perhaps even more importantly, to rebut such a charge as false. It is, in fact, difficult to conceive of any other reason one would undertake that role.
Whether one focuses on the right to express one's opinion on the fairness of the process to the public via the print or electronic media or simply on the right to participate as a witness at a trial, either interest is legally cognizable. U.S. Const. amend. I; Roberts v. Mentzer, 382 Fed. Appx. 158, 164 (3d Cir. 2010) (recognizing right to appear and give true testimony as witness in legal proceeding is guaranteed by free speech clause of First Amendment); Bonner v. Beto, 373 F.2d 301 (5th Cir. 1967) (holding Texas statute prohibiting co-principal from appearing as witness violates due process rights). When permitted to observe the counting process in accordance with laws aimed at assuring meaningful scrutiny of the vote count, watchers, unlike other voters, can share that view. When unlawfully obstructed, they alone are deprived of that ability. Thus, to the extent further, unique injury is required to support their standing to assert a colorable claim that election officials will obstruct their ability to meaningfully observe the counting process, poll watchers alone suffer it.
Finally, though it should not be necessary in view of their own statutory status as voters and unique injury as “watchers,” appellants may also be unique in their ability to assert third-party standing on behalf of the candidate or political party appointing them.9 We generally examine standing in connection with the injury suffered by the party alone. However, litigants under certain circumstances may raise a claim on behalf of a third party, like a candidate for office or political party, if (1) he or she has suffered a concrete, redressable injury; (2) he or she has a close relation with the third party; and (3) there exists some hindrance to the third party's ability to protect his or her own interests. E.g., Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 629–30, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (holding that civil litigant has standing to raise claims of potential jurors who are removed pursuant to race based peremptory strikes).
As the Legislature has barred candidates from serving as watchers, Elec. § 33.032, candidates can rely only on the eyes and ears of the person appointed to carry out that function. Should a candidate wish to pursue any subsequent contest (or mount a defense) related to the count, the appointed watcher will be the only witness available.
III. Appellees' Argument that Redress for Actual or Presumed Irregularities Before the Election Lies Elsewhere Is Wrong
Appellees candidly conceded at argument that we must presume the allegations at issue to be true here as we would any allegation of obstruction of the observation of the vote count no matter how egregious. Nevertheless, they maintain that the remedy for obstructing poll watchers from watching the polls lies with a complaint to the election officials who are alleged to be obstructing the count, a complaint to the local district attorney for a possible criminal prosecution thereafter, or a claim brought by the candidate or political party who appointed the watcher. I will take the last argument first.
Let us suppose that a poll watcher objects to conduct by election officials that either amounts directly to dilution of the vote (e.g., 100 valid ballots discarded) or that simply obstructs his ability to properly observe the count, like appellants' present allegation regarding the transposing of ballots onto a private computer before tabulation.10 The watcher, having no standing of his own, is to report the problem to the candidate or the political party who appointed him so that the candidate or political party might decide whether to bring the matter to court. But see Andrade, 345 S.W.3d at 8; Brown, 53 S.W.3d at 302.
Appellees suggest that the appointing candidate or political party might bring an action before the election, but they do not explain the basis on which either would have standing at that stage except derivatively on behalf of the same voters who lack standing.11 Neither do they attempt to explain how that claim would be ripe when pursued by a candidate who might lose by a margin greater than the 100 ballots subject to the challenge. While the candidate would surely have standing to file a contest for office after the election, again, no remedy would be available to the candidate in such an action unless the 100 votes known to be affected were sufficiently numerous that they could change the result. See Elec. § 221.009(b); O'Caña v. Salinas, No. 13-18-00563-CV, 2019 WL 1414021, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 29, 2019, pet. denied) (mem. op.).
And if, as here, the testimony that we are to assume to come from the poll watchers would amount to “I don't know how many votes were improperly included or improperly excluded because I was not allowed to properly observe what originally went on to the computer,” what then? Would the court order a new election because a broad, but merely potential, lack of confidence in the outcome infects the result? Or would we treat the claim as failing for lack of actual proof?12 Either way, the abuse, and the resulting injury to the voter, could continue unabated.
Appellees also urge that a poll watcher might direct their grievance to the local officials: that is to say, he could complain to the same local election officials he would accuse of mis- or malfeasance or to the local district attorney for possible criminal prosecution. The first is absurd. The second entails no possible remedy for either the election itself or the lost vote and, in all events, would leave any consequence for the structural political abuse to the discretion of local elected executive-branch officials in a manner that fatally ignores the role of the judiciary in a republican form of government.
Leaving the voters' right in their vote to the discretion of the local executive branch that is the subject of the challenge (or the political party(ies)) is precisely what led to the recognition of their direct standing in Baker,13 the subsequent passage of the federal Voting Rights Act, and the resulting need for federal oversight of state elections for three generations.14
In the ensuing five decades, any voter alleging that state action threatened a practical dilution of his or her vote, whether from a malapportionment,15 excessively partisan gerrymander,16 misconfiguration of his district,17 suppression,18 or potential mischief in the counting,19 and, without regard to the label affixed to the claim, enjoyed direct standing to complain of the threat to his or her vote because of the alleged injury and not the title of his claim, and the court, state or federal, was the right place to lodge it. At this late date,20 I would think the argument that the state judiciary should stand down in the face of imminent, if assumed, violations of their own state election laws aimed at assuring legitimacy of the count—because all voters face the same threatened abuse—would be quickly dismissed.
The Legislature created the office of poll “watcher” to permit registered voters in the county to observe the ballot counting. See Elec. § 33.031(a). The watcher's purpose is to ensure the integrity of the election, promote confidence in the announced result, avoid unnecessary controversy, and assure a functional means of establishing or rebutting claims of misconduct. The sole question presented here is whether poll watchers who come forward alleging an otherwise live claim of obstruction of their ability to observe the count have standing to have that claim settled in court.
Because the statute is aimed at avoiding the most extreme forms of vote dilution, I find cases recognizing standing in any affected voter, including and especially one appointed for the purpose of watching, to control. Separately, because the complained of conduct could materially impair the poll watchers' unique ability to observe the ballot counts to the point that they would be unable to participate as witnesses in any resulting contest or to ensure confidence in the count, the injury alleged is an injury they alone can have.21 Were we so inclined, we could inform the parties of our intention to treat the instant appeal as a mandamus application and move promptly to the merits, leaving them with the ability to resolve their differences by agreement in the brief interim. In re Francis, 186 S.W.3d 534, 538 (Tex. 2006).
Accordingly, I dissent.
1. Administrative code rule 81.36(n) states: “The Central Counting Station personnel may convene only once prior to election day to count early votes. Any ballots received after the ballot board judge delivered the ballots to the manager shall be counted on election day.” 1 Tex. Admin. Code § 81.36(n).
2. Section 33.056(a) of the election code states: “Except as provided by Section 33.057, a watcher is entitled to observe any activity conducted at the location at which the watcher is serving. A watcher is entitled to sit or stand conveniently near the election officers conducting the observed activity.” Tex. Elec. Code § 33.056(a).
3. Appellants' amended petition sought to cure jurisdictional issues by stating with greater specificity the harm they claim arose from the alleged statutory and rule violations, not by asserting additional causes of action. They pleaded that those statutory violations led to the particularized injury necessary for standing.
4. The Dallas County appellees (Dallas County, Pippins-Poole, and Bradley) also assert appellants' claims are moot because appellants' certificates of appointment for the May 2019 bond election expired before appellees were served. The mootness doctrine limits courts to deciding cases in which an actual controversy exists. FDIC v. Nueces Cty., 886 S.W.2d 766, 767 (Tex. 1994). The “capable of repetition yet evading review” exception to the mootness doctrine applies when the challenged act is of such short duration that the appellant cannot obtain review before the issue becomes moot. Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999). There must also be a reasonable expectation that the same action will occur again if the issue is not considered. Id. The exception applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he or she will again be subjected to the alleged illegality. Tex. A&M Univ.—Kingsville v. Yarbrough, 347 S.W.3d 289, 290–91 (Tex. 2011). Appellants have served as election watchers in recent years, and they have been again appointed as watchers for the 2020 election. And, there is a reasonable expectation that the alleged illegality could occur again. According to appellants, the alleged violations have not been isolated events but rather have recurred “in election after election.” Under these circumstances, we conclude the “capable of repetition yet evading review” doctrine applies here, at least until the close of counting in the November 2020 election.
5. We express no opinions regarding a candidate's standing to sue for alleged election-code violations, as that issue is not before us in this appeal.
1. Appellants have lodged multiple complaints relative to their ability to observe and attest to the accuracy of the count. Included in those complaints are allegations that they were “prevented from monitoring activities occurring on Defendant[']s private laptop when the laptop is obstructed from their view and removed from the premises” and that same computer is later returned to the premises prior to election day. I would conclude that not every election observation allegation, accepted as true, would necessarily amount to a colorable claim for these purposes. Appellants' allegation regarding the frequency and duration of restroom breaks, for example, could be readily defeated as non-justiciable by stipulation or adoption of guidelines assuring observers a functional ability to observe the count. At this stage, however, we accept all allegations as true.
2. The “irreducible constitutional minimum” of standing focuses on the plaintiff alleging (1) an actual or imminent “injury in fact”; (2) that is fairly traceable to the challenged action of the defendant; and (3) that would likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (“[W]e may look to the similar federal standing requirements for guidance.”).
3. Appellees appear to concede that the candidates and political parties who appointed the voters as watchers might have standing to bring a claim in advance of the election. I wonder aloud how that might be. Other than as voters themselves—a status said to be insufficient to confer standing—candidates' standing could only be derivative or representative of those same voters. Compare Veasey v. Perry, 29 F. Supp. 3d 896, 910–11 (S.D. Tex. 2014) (voter enjoys direct standing to seek prospective relief challenging pre-election suppression claim) with id. at 908 (organizations and candidates generally lack direct standing to assert claims affecting the right to vote because “[t]he right to vote implicated by the pleadings is a right afforded to voters”) (citing Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir. 1989)).
4. It is of course the threatened injury—and not the label of the claim—that determines standing. See Andrade, 345 S.W.3d at 10 (citing Baker, 369 U.S. at 207–08, 82 S.Ct. 691) (relevant inquiry is whether plaintiffs assert legally cognizable injury).
5. Notably, and in keeping with the standing rules announced in Baker, Andrade, and like cases, the candidate claiming standing in Meyer alleged she was “a resident and eligible voter in Colorado State House District Number 13. She is also a candidate for that position. On November 3, 1992, she voted for herself to be the State Representative.” Meyer, 846 P.2d at 865 n.3. She was joined by another voter who alleged standing as “a resident and eligible voter for Colorado State House District Number 13. He cast a vote for ‘Mrs. Lamm’ and either has been or will be disenfranchised if his vote is not counted on November 20, 1992 at the mandatory recount.” Id.
6. This quotation is often attributed, rightly or wrongly, to Joseph Stalin. Concerns over vote dilution by inadequate safeguards over the counting are alive and well in Texas and elsewhere. See, e.g., Ginger Thompson, Ex-President in Mexico Casts New Light on Rigged 1988 Election, New York Times, Mar. 9, 2004 (detailing ruling PRI party falsely announcing failure of electronic counting system and subsequent burning of the paper ballots); see also Dan Balz, The Mystery of Ballot Box 13, Washington Post, Mar. 4, 1990.
7. The Twenty-fourth Amendment states:The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.U.S. Const. amend. XXIV, § 1.
8. As I read the record, appellees failed to specially except as to the nature of the injury or the title of the claims appellants asserted. Even had they done so, and even if those special exceptions had been granted, the title of the claim would be irrelevant. See Andrade, 345 S.W.3d at 10 (citing Baker, 369 U.S. at 207–08, 82 S.Ct. 691).
9. I readily concede that appellants have not raised this argument themselves. Nevertheless, as jurisdiction is an issue we are obliged to consider “sua sponte,” OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 735 (Tex. App.—Dallas 2007, pet. denied), our review is not limited to the “precise jurisdictional challenges or arguments presented by the parties.” City of Dallas v. Sabine River Auth., No. 03-15-00371-CV, 2017 WL 2536882, at *7 (Tex. App.—Austin June 7, 2017, no pet.) (mem. op.). I am aware of no Texas authority to the contrary and no authority from any other jurisdiction to suggest that our duty to independently examine jurisdiction is directed only toward one result, leaving us obliged and free to explore for ourselves only the law and the record to avoid jurisdiction. See Loachapoka Water Auth., Inc. v. Water Works Bd. of City of Auburn, 74 So. 3d 419, 422 (Ala. 2011) (stating court “is not limited to the parties' arguments” and addressing jurisdiction “ex mero metu”) (citation omitted); Demming v. Demming, 251 So. 3d 284, 286 (Fla. Dist. Ct. App. 2018); Guembes v. Roberts, 286 Or.App. 471, 398 P.3d 507, 508 n.1 (2017); Parrish v. FNMA, 292 Va. 44, 787 S.E.2d 116, 120 (2016); see also Kamen v. Kemper Fin. Serv., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (opinion for the court by Scalia, J.) (discussing court's authority to develop legal arguments generally and apart from jurisdictional issues).
10. As asserted by appellants, they were “directly harmed when they were prevented from monitoring activities occurring on Defendant[']s private laptop when the laptop is obstructed from their view and removed from the premises.” Appellants further alleged “the Assistant to Tabulation Supervisor at the Central Counting Station ․ put Early Voting data onto [his laptop] before election day, remove[d] that computer from the Central Counting Station site, and return[ed] with it on subsequent days prior to election day.”
11. As noted supra, an action by the candidate brought before the election would appear to rely on the candidate's standing as a voter or in relation to other voters such an action would be precluded under appellees' argument.
12. The ballots discovered in Box 13 in the 1948 Senate primary controversy were deemed sufficient to control the result, although “the last 202 names on the rolls were written in a different color ink; the new names were listed in alphabetical order; the handwriting was identical; and some of the new voters claimed they never voted.” Dan Balz, The Mystery of Ballot Box 13, Washington Post, Mar. 4, 1990.
13. In the decades before Baker, state judiciaries across the south deferred to their local executive officials and the political parties to oversee their own primaries. Election practices that threatened the ability to vote at all or to diminish its effect, most often on account of race, were held to be beyond the courts' jurisdiction. See Bell v. Hill, 123 Tex. 531, 74 S.W.2d 113, 122 (1934); City of Honey Springs v. Templeton, 194 S.W.2d 620, 623 (Tex. Civ. App.—Dallas 1946, writ ref'd n.r.e.). That jurisdictional modesty facilitated widespread and chronic abuse of the electorate. In hindsight, it can only be described as an abdication and a structural failure to function as an independent branch under the republican form of government clauses in the state and federal constitutions, as Baker itself suggested. See Tex. Const. art. 1, § 2; see also U.S. Const. art. IV, § 4; Baker, 369 U.S. at 218–21, 82 S.Ct. 691.
14. Because the state judiciaries could not be relied upon to enforce their own constitutions or voting laws, the federal government was compelled to undertake the “uncommon exercise of congressional power” of essentially divesting some of them of their sovereignty insofar as conducting elections was concerned. South Carolina v. Katzenbach, 383 U.S. 301, 334, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Reflecting their unprecedented nature, the most extreme aspects of this divestiture were set to expire in 1970. Instead, they were extended and expanded to include Texas and remained until 2013 when they were struck down in Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013).
15. E.g., Baker, supra.
16. Rucho v. Common Cause, ––– U.S. ––––, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019). The opinion begins with the following: “Voters and other plaintiffs ․ challenge[ ] their States' ․ districting maps as unconstitutional partisan gerrymanders․” Id. at 2491.
17. Perry v. Perez, 565 U.S. 388, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012) (voter raising § 2 Voting Rights Act claim without reference to equal protection); Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001).
18. Veasey, 29 F. Supp. 3d at 910.
19. Andrade, 345 S.W.3d at 10.
20. After 2013, it is the state judiciaries, not political parties, their candidates or local executives, who are responsible for these issues. See Shelby County, 570 U.S. at 556–57, 133 S.Ct. 2612.
21. While appellees separately contend that they are beyond the reach of the injunctive or declaratory remedy appellants seek, the supreme court has recognized that “an injunction that facilitates the elective process” is proper where it is directed at the officials responsible for it. Blum, 997 S.W.2d at 263.
Opinion by Chief Justice Burns
Schenck, J., dissenting
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Docket No: No. 05-20-00560-CV
Decided: October 23, 2020
Court: Court of Appeals of Texas, Dallas.
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