IN RE: NORMA RAMIREZ

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Court of Appeals of Texas, Corpus Christi-Edinburg.

IN RE: NORMA RAMIREZ

NUMBER 13-18-00031-CV

Decided: February 01, 2018

Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

DISSENTING MEMORANDUM OPINION

Relator Norma Ramirez's request for temporary and permanent injunctive relief was sua sponte and erroneously rejected by the trial court for want of jurisdiction. Forced to choose between living with the trial court's dismissal or pursuing appellate remedies, Ramirez sought mandamus relief from us. In this original proceeding, Ramirez asks us to declare Diaz ineligible and prohibit his name from appearing on the primary ballot, or alternatively, require the trial court to vacate its dismissal order and adjudicate the merits. The majority treats Ramirez's contentions as if they had been initially brought in the appellate court, balances the competing equities, and denies mandamus relief. I would vacate the trial court's dismissal order, grant Ramirez the alternative mandamus relief she seeks, and deny the remainder of Ramirez's petition without prejudice. Therefore, I respectfully dissent.

I. TRIAL COURT JURISDICTION

After calling the case and Ramirez's counsel identified himself for the record, the trial court stated:

[Section] 231.004 1 and I reviewed that as well as did independent research, and I've come to the conclusion that I do not have jurisdiction to hear this case. I'm dismissing this case for want of jurisdiction and the section that I—that I feel is appropriate is 273.061, Mandamus by Appellate Court, and it reads: “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.”

In addition to this specific section, I also have two cases that I'm going to provide to the parties, at least one page so you-all can copy and I know this is an emergency and it has to be done immediately before it becomes moot.

The first case is a 1995 case out of El Paso. It's Manuel Beharano, B-e-h-a-r-a-n-o versus Carol Hunter, the clerk, and it's cited at 899 S.W. 2, 346, and in that particular case, even though the candidate whose petition was defective, it was clear that it was defective. It was insufficient and he should not have been on the ballot. The attorney that filed this for the realtor filed it too late, filed it when early voting, so it was moot. It was moot, so the Court was forced to deny the mandamus relief; however, in the opinion, they have a section on jurisdiction and they—and I'm reading from the opinion and quoting at page 349.

“As a threshold matter, we note that jurisdiction to compel an election officer to remove a candidate's name from the ballot is vested in the Appellate Courts.” And then it cites the section that I read about the Supreme Court and the Court of Appeals having jurisdiction—exclusive jurisdiction to hear this type of proceeding.

I also have a second case and that's out of the Valley, out of this County and I was the attorney representing the realtor. This is In Re: San Juanita Sanchez, the mayor of San Juan, and it's a 2002 case out of the Supreme Court of Texas, and it's cited at 81 S.W. 3d at 794. And in that particular case, Ms. Sanchez was not being permitted to be on the ballot and I filed the mandamus to force the City of San Juan to place her on the ballot and we prevailed, Ms. Sanchez prevailed in the Supreme Court of Texas, and they indicated that they had jurisdiction to—to hear this type of proceeding. So I've given you-all those two cites and the Election Code, and to me, it's very clear that I have no jurisdiction to hear this case Court.

Ramirez's counsel registered his disagreement with the trial court's sua sponte ruling. Counsel for Diaz, appearing by telephone, presented no substantive argument; the trial court's dismissal for want of jurisdiction meant that Diaz effectively prevailed.

The trial court's concern for its jurisdiction is laudable. But, its ruling is erroneous. Section 273.081 of the Texas Election Code provides that “[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 continuing or occurring.” TEX. ELEC. CODE ANN. § 273.081 (West, Westlaw through 2017 1st C.S.). The trial court may have been referring to section 273.061, which provides:

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. at § 273.061 (West, Westlaw through 2017 1st C.S.). However, nothing in section 273.061 vests the supreme court or a court of appeals with exclusive jurisdiction. Neither Bejarano v. Hunter, 899 S.W.2d 346, 349 (Tex. App.—El Paso 1995, orig. proceeding), nor In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002), support the trial court's conclusion that exclusive jurisdiction over matters such as these rests solely in the appellate courts.

Therefore, I would sustain Ramirez's issue challenging the trial court's dismissal for want of jurisdiction.

II. APPELLATE REMEDY

It is a basic tenet in Texas civil procedure that as long as the forum is a proper one and the plaintiff is the first to file suit, it is the plaintiff's privilege to choose the forum. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); see also In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 292–93 (Tex. 2016) (orig. proceeding). A request for injunctive relief in the trial court under section 273.081 invokes the trial court's equity jurisdiction. In re Gamble, 71 S.W.3d 313, 317 (Tex. 2002) (orig. proceeding).

We do not know why Ramirez chose a district court as the forum rather than employing section 273.061 and proceeding directly before us. But we should assume that the choice was deliberate. Unlike us, trial courts routinely hear testimony, weigh a witness's credibility and demeanor, and rule on the admissibility of evidence. See Gnerer v. Johnson, 227 S.W.3d 385, 390 (Tex. App.—Texarkana 2007, no pet.) (“The trial court, having the ability to hear the evidence and to gauge the credibility of the witnesses, is in a far superior position to weigh the conflicting evidence than a court of appeals.”). Such fact finding is at the core of balancing the equities in considering whether injunctive relief is proper. See Computek Comput. & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 220 (Tex. App.—Dallas 2005, no pet.) (“Because an injunction is an equitable remedy, a trial court weights the respective conveniences and hardships of the parties and balances the equities.”).

The determination of a party's entitlement to equitable relief can only “be decided after a hearing on the merits where interested parties have an opportunity to be heard.” In re Gamble, 71 S.W.3d at 318; Triantaphyllis v. Gamble, 93 S.W.3d 398, 401–02 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); see also Sachtleben v. Bennett, No. 14-10-00322-CV, 2010 WL 3168395, at *3 (Tex. App.—Houston [14th Dist.] Aug. 12, 2010, no pet.) (mem. op.) (per curiam). The trial court's determination in this regard should be based on its own balancing of the competing equities. See In re Gamble, 71 S.W.3d at 317; Risner v. Harris Cty. Republican Party, 444 S.W.3d 327, 339 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Triantaphyllis, 93 S.W.3d at 401; see, e.g., In re Holcomb, 186 S.W.3d 553, 555 (Tex. 2006) (orig. proceeding); In re Sharp, 186 S.W.3d 556, 557 (Tex. 2006) (orig. proceeding); In re Francis, 186 S.W.3d 534, 541 (Tex. 2006) (orig. proceeding).

Ramirez is entitled to all that her selected forum has to offer. I respectfully dissent because the majority denies her of that. It is the trial court's function to provide the parties with the opportunity to present evidence and make legal arguments and reach a conclusion in the first instance. It may be that in balancing the competing equities, the trial court would reach the same conclusion as the majority and deny Ramirez the relief she requests. It may also be that the trial court's decision in this regard would withstand appellate scrutiny. Under the current procedural posture, this Court does not have the benefit of a proper evidentiary record from which we can review the trial court's determination. See In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 676 (Tex. 2007) (orig. proceeding) (explaining that appellate courts may not deal with disputed areas of fact in a mandamus proceeding).

III. CONCLUSION

For the foregoing reasons, I would conditionally grant mandamus relief with regard to Ramirez's alternative request that “the trial court be required to set aside its order of dismissal and adjudicate the matter,” direct the trial court to vacate its order of January 11, 2018 dismissing the case for want of jurisdiction and to proceed on the merits as expeditiously as possible, and deny without prejudice the remainder of Ramirez's petition.

FOOTNOTES

1.   Section 231.004 of the Texas Election Code refers to the disqualification of a district judge in certain election contests. See TEX. ELEC. CODE ANN. § 231.004 (West, Westlaw through 2017 1st C.S.).

LETICIA HINOJOSA Justice

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