IN RE: LENNY LOPEZ

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Court of Appeals of Texas, Tyler.

IN RE: LENNY LOPEZ, RELATOR

NO. 12-18-00016-CV

Decided: February 06, 2018

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

OPINION

Relator, Lenny Lopez, a Republican candidate to the office of Justice of the Peace, Precinct Three, Tarrant County, filed this original proceeding in which he seeks a writ of mandamus ordering the Respondent, Tim O'Hare, Chairman of the Tarrant County Republican Party, to remove the name of William “Bill” Brandt, Real Party in Interest, from the list of candidates in the March 6, 2018 Republican primary for Precinct Three of Tarrant County. Lopez contends that O'Hare violated his duties as chairman when he failed to reject Brandt's application and remove his name from the list of candidates submitted to the Texas Secretary of State. We dismiss the petition for writ of mandamus as moot.

BACKGROUND

Lopez, Brandt, and Russell Casey filed as candidates in the Republic Party primary scheduled for March 6, 2018, for the position of Tarrant County Justice of the Peace, Precinct Three. The filing deadline was December 11, 2017. On January 5, 2018, Casey filed an original proceeding with the Second Court of Appeals in Fort Worth to challenge whether O'Hare exceeded his authority in failing to declare Brandt and Lopez ineligible due to alleged violations of the Texas Election Code. All seven justices of the Second Court of Appeals recused themselves. On January 10, the Texas Supreme Court transferred this original proceeding, entitled In Re: Russell Casey to this Court. See In re Russell Casey, No. 18-9007 (Tex. Jan. 10, 2018) (order). On January 12, Casey filed a notice of nonsuit and this Court dismissed his petition for writ of mandamus. See In re Casey, No. 12-18-00004-CV, 2018 WL 459053 (Tex. App.—Tyler Jan. 18, 2018, orig. proceeding) (mem. op.).

Without Casey, only Brandt and Lopez remained as candidates. In lieu of paying a filing fee, Brandt was required to file a petition with five hundred valid signatures to have his name included on the Republican Party Primary ballot.1 Brandt filed an application and petition with 846 signatures on November 11, 2017. On January 16, 2018, Lopez filed a request for O'Hare to remove Brandt's name from the petition due to an alleged violation of the Texas Election Code, section 141.065(c). Lopez claimed that approximately 788 of the signatures were notarized by Lisa Rockett without a date on the affidavit. He contends this violated section 141.065(c) of the Texas Election Code.2 O'Hare denied Lopez's challenge to Brandt's name being included on the ballot.

On January 19, Tarrant County mailed overseas and military ballots for the March 6 primary. These ballots included the names of both Brandt and Lopez as candidates for Tarrant County Justice of the Peace, Precinct Three. On that same day, January 19, Lopez filed a new original proceeding with the Second Court of Appeals in Fort Worth challenging whether O'Hare exceeded his authority by failing to declare Brandt as ineligible. Six of the seven justices of the Second Court of Appeals recused themselves. On January 26, the Texas Supreme Court transferred Lopez's original proceeding to this Court. See In re Lenny Lopez, No. 18-9016 (Tex. Jan. 26, 2018) (Order). This proceeding followed, in which Lopez contends that O'Hare violated his duty to notify the Texas Secretary of State that Brandt's name should be removed from the Tarrant County, Precinct Three ballot.3

AVAILABILITY OF MANDAMUS

Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Section 273.061 of the Texas Election Code authorizes the supreme court and courts of appeals to issue writs of mandamus to compel the performance of any duty imposed by law in connection with holding an election or political party convention. TEX. ELEC. CODE ANN. § 273.061 (West 2003). The purpose of mandamus is to compel a public official, which includes the Republican Party Chairman, to perform a particular duty or refrain from an unauthorized act. See Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, 423 (1961); see also TEX. ELEC. CODE ANN. § 161.009 (West 2010). “A court will not grant a writ of mandamus unless it is convinced that the issuance of such a writ will effectively achieve the purpose sought by appellant.” Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266, 267 (Tex. Civ. App.—San Antonio 1978, writ dism'd).

MOOTNESS

In response to Lopez's petition for writ of mandamus, O'Hare and Brandt contend that this original proceeding is moot and therefore this Court lacks subject-matter jurisdiction to grant the relief requested by Lopez. Accordingly, we address the jurisdictional issue first.

Standard of Review and Applicable Law

“Subject-matter jurisdiction concerns a court's power over cases.” Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006) (Brister, J., concurring). “Subject-matter jurisdiction is essential to a court's power to decide a case.” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)). “It stems from the doctrine of separation of powers, and aims to keep the judiciary from encroaching on subjects properly belonging to another branch of government.” Reata, 197 S.W.3d at 379. Subject-matter jurisdiction is a question of law we review de novo. City of Houston, 417 S.W.3d at 442.

“The mootness doctrine implicates subject-matter jurisdiction.” In re Smith County, 521 S.W.3d 447, 453 (Tex. App.—Tyler 2017, orig. proceeding). An appeal is moot when a court's action on the merits cannot affect the parties' rights. V.E. Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993). “Appellate courts are prevented from deciding moot controversies.” Nat'l Collegiate Athletic Assoc. v. Jones, 1 S.W.3d 83, 86 (Tex 1999). “This prohibition is rooted in the separation of powers doctrine in the Texas and United States Constitutions that prohibit courts from rendering advisory opinions.” Id. The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties. Tex. Ass'n. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Texas courts have no jurisdiction to render an advisory opinion. Id.

“An application for a place on the ballot may not be challenged for compliance with the applicable requirements as to form, content and procedure after the day before any ballot to be voted early by mail is mailed to an address in the authority's jurisdiction for the election for which the application is made.” TEX. ELEC. CODE ANN. § 141.034(a) (West Supp. 2017). The balloting materials for voting by mail shall be mailed to voters on or before the forty-fifth day before election day. See id. § 86.004(a), (b) (West Supp. 2017).

Analysis

It is well established that “a contest as to the candidacy of an individual must be dismissed as moot where the contest cannot be tried in a final decree issued in time for it to be complied with by election officials. Law v. Johnson, 826 S.W.2d 794, 797 (Tex. App.—Houston [14th Dist.] 1992, no pet.); see also Smith v. Crawford, 747 S.W.2d 939, 940 (Tex. app.—Dallas 1988, no pet.) (“[t]he established rule is that where a contest between candidates for nomination in a party primary election cannot be tried and a final decree entered in time for substantial compliance with pre-election statutes by officials charged with the duty of preparing for the holding of the election, the courts must dismiss the contest as being moot[ ]”). The case is moot once it becomes “too late to invalidate a candidate and print new absentee ballots in time for the beginning of the casting of ballots.” Law, 828 S.W.2d at 797. “[C]onstraints on our action are determined by the election schedule.” In re Myer, No. 05-16-00063-CV, 2016 WL 375033, at *4 (Tex. App.—Dallas Feb. 1, 2016, orig. proceeding) (mem. op.).

The mandamus record before us, which includes an affidavit from the chief deputy elections administrator for Tarrant County, establishes that the county mailed overseas and military absentee ballots for the March 6, 2018 primary election on January 19. See TEX. ELEC. CODE ANN. §§ 141.034, 86.004; see also TEX. GOVT' CODE ANN. § 22.220(c) (West Supp. 2017) (a court of appeals may, on affidavit, determine facts that are necessary for the proper exercise of its jurisdiction[ ]”); Sepulveda v. Medrano, 323 S.W.3d 620, 625 (Tex. App.—Dallas 2010, no pet.). Accordingly, the balloting process began on January 19, which is the same date that Lopez filed this original proceeding with the Second Court of Appeals in Fort Worth. However, judicial power cannot be invoked to interfere with the election process once it has begun. See Blum v. Lanier, 997 S.W.2d 259, 263 (Tex. 1999). Any injunction or attempt on our part to delay the election process, which is already underway, would be improper. See In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002). Because the March 6 primary ballots have already been mailed to voters, any issues regarding the validity of Brandt's application are moot and no longer justiciable, and we are now without subject-matter jurisdiction to grant any meaningful relief to Lopez. See In re Crenshaw, No. 05-17-00330-CV, 2017 WL 1292013, at *1 (Tex. App.—Dallas Apr. 7, 2017, orig. proceeding) (mem. op.) (dismissing original proceeding challenging rejection of application for place on the ballot as moot because early voting by mail had already begun).

During oral argument in Fort Worth, Lopez conceded that the mandamus evidence before us establishes that this matter is moot. Yet, he invites us to decide the issue of whether Brandt's application complied with the requirements of section 141.065(c) of the election code and, therefore, whether O'Hare violated the election code by refusing to exclude Brandt from the ballot. We decline this invitation, as we are prohibited from issuing advisory opinions. See Tex. Assoc. of Bus., 852 S.W.2d at 444. Because this case is now moot, we are without subject-matter jurisdiction to interpret section 141.065(c). See Gamble, 71 S.W.3d 313, 318; see also Tex. Assoc. of Bus., 852 S.W.2d at 444.

CONCLUSION

Having determined that the issues in this case are moot and, thus, we lack subject-matter jurisdiction to grant the relief sought, we dismiss the petition for writ of mandamus as moot.

JUDGMENT

ON THIS DAY came to be heard the petition for writ of mandamus filed by Lenny Lopez on January 26, 2018, and the same having been duly considered, because it is the opinion of this Court that a writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby dismissed as moot.

FOOTNOTES

1.   See TEX. ELEC. CODE ANN. § 172.021(e) (West Supp. 2017).

2.   Section 141.065(c) states that “[a] single notarized affidavit by any person who obtains signatures is valid for all signatures gathered by the person if the date of notarization is on or after the date of the last signature obtained by the person.” TEX. ELEC. CODE ANN. § 141.065(c) (West Supp. 2017).

3.   See TEX. ELEC. CODE ANN. §§ 172.029(e), 141.032(e) (West Supp. 2017).

JAMES T. WORTHEN Chief Justice

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