Opinion
NO. 03-17-00852-CV
12-22-2017
In re Susan "Suzy" Falgout
ORIGINAL PROCEEDING FROM CALDWELL COUNTY
MEMORANDUM OPINION
Relator Susan "Suzy" Falgout filed a petition for writ of mandamus and request for emergency relief related to her application for a place on the Republican primary ballot. See Tex. R. App. P. 52. On November 16, 2017, Falgout filed her application to run in the Republican primary for Justice of the Peace, Pct. 1, of Caldwell County, accompanied by petitions in lieu of a filing fee. Respondent and Caldwell County Republican Chair Kathy Haigler accepted the application on November 17. Real party in interest and current Justice of the Peace Matt Kiely requested a copy of Falgout's application and petitions on November 20 and received a copy that same day. On December 12, Kiely challenged Falgout's petitions because they did not state that she was running for the Republican primary as required by the election code. See Tex. Elec. Code § 172.027. On December 13, Falgout asked for the opportunity to cure the error, explaining how her petitions came to lack that required information. Haigler refused to allow Falgout to cure the error and on December 15 sent Falgout a letter stating that she had "been instructed by the Secretary of State that I must now reject your application. This letter serves as your notice of rejection." Falgout then filed this emergency proceeding. On December 18, we issued an order instructing Haigler to allow Falgout to participate in the December 21 drawing for primary ballot position, pending our decision on Falgout's petition. See Tex. R. App. P. 52.10; In re Bell, 91 S.W.3d 784, 785 (Tex. 2002). Having received responses from Kiely and Haigler and having reviewed the relevant cases and statutes, as explained briefly below, we deny Falgout's request for extraordinary relief.
In her response, Haigler explains that the petition form Falgout used was promulgated by the Secretary of State and is not entirely clear that the petition must state the party's name. She explains how the form makes it "easy for a candidate or an election official to miss that instruction" and notes that a second candidate in Caldwell County committed the same error and was also removed from the ballot. Haigler states that she does not object to allowing Falgout or the other candidate to cure by paying the fee, but as explained below, the election code does not allow it.
In 2006, the supreme court allowed a would-be candidate the opportunity to cure a defect under very similar circumstances, explaining that the election code did not require that he be excluded from the ballot after both he and the party chair overlooked a defect in his petitions until after the deadline had passed. In re Francis, 186 S.W.3d 534, 542-43 (Tex. 2006) (orig. proceeding). However, in 2011, the legislature amended the election code to specifically bar a would-be candidate from amending an application or an accompanying petition after the filing deadline. See Tex. Elec. Code §§ 141.032(g), .062(c) (added by Act of May 19, 2011, 82d Leg., R.S., ch. 254, §§ 1, 2, 2011 Tex. Gen. Laws 834, 834); Risner v. Harris Cty. Republican Party, 444 S.W.3d 327, 434-44 (Tex. App.—Houston [1st Dist.] 2014, no pet.); In re Wilson, 421 S.W.3d 686, 689 (Tex. App.—Fort Worth 2014, orig. proceeding). Falgout concedes as much in her petition, acknowledging that "a petition must be rejected due to noncompliance with form, content or procedure" and that "a petition in lieu of filing fee may not be amended after the filing deadline." She argues, however, that because an application accompanied by a rejected petition "can instead be accepted with the tender . . . of an appropriate filing fee," we should interpret the election code as allowing her to tender the fee after the filing deadline, thus curing the defect in her petitions. Our reading of the election code does not allow such an action.
Falgout argues that Risner and Wilson are distinguishable because those candidates did not have the option of paying a fee instead of filing a petition, arguing that the optional nature of the petitions she filed should allow her to cure with a post-deadline filing fee. But as discussed below, we do not believe that is a meaningful distinction in light of our interpretation of the election code, particularly sections 141.032(c) and 172.021(b-1) and (b-2).
A candidate seeking a place on the general primary election ballot must file an application for a place on the ballot. Tex. Elec. Code § 172.021(a). The application must be accompanied by a filing fee or a petition in lieu of filing fee. Id. § 172.021(b). If the candidate files an application in lieu of filing fee, "the petition is considered part of the application," id. § 141.032(c), and as noted above, a candidate may not amend her application or petitions after the filing deadline, id. §§ 141.032(g), .062(c).
Section 141.032(c) also provides that a "petition is not considered part of the application for purposes of determining compliance with the requirements applicable to each document, and a deficiency in the requirements for one document may not be remedied by the contents of the other document," Tex. Elec. Code § 141.032(c), and Falgout argues that this means that we should allow her to cure her application by paying the filing fee. However, we interpret that language to mean only that an application lacking certain required information may not be considered to be complete by the inclusion of that information in the accompanying petition (or vice-versa). We do not believe it means that a post-deadline cure is available under the election code as amended in 2011.
Although Falgout is correct that the election code does not explicitly state that "a filing fee may not be presented or accepted after the filing deadline," we do not agree with her conclusion that the code allows her to pay the fee after the deadline. The election code provides that if a candidate submits payment of the filing fee that is returned for insufficient funds, the application is incomplete and must be returned. Id. § 172.021(b-1). If the deadline has not passed, the candidate may resubmit the application with a new payment from a different source, but if the payment is returned for insufficient funds after the deadline has passed, "the application is not considered to be timely filed, and the authority receiving the application shall inform the applicant that the application was not valid." Id. § 172.021(b-1), (b-2). Reading the applicable provisions of the election code as a whole and in context with each other, see Service Life & Cas. Ins. Co. v. Montemayor, 150 S.W.3d 649, 651 (Tex. App.—Austin 2004, pet. denied), we can only conclude that the legislature intended to bar a candidate from amending her application in any way after the filing deadline, including by late filing a fee due to a defect in the petition filed in lieu of the filing fee, see Risner, 444 S.W.3d at 434-44; In re Wilson, 421 S.W.3d at 689.
We recognize the harshness of this result, but given the changes in the election code and our interpretation of those enactments, we must deny Falgout's petition for writ of mandamus. See Tex. R. App. P. 52.8(a).
/s/_________
David Puryear, Justice Before Justices Puryear, Field, and Bourland Filed: December 22, 2017