Opinion
15-24-00020-CV
11-05-2024
DERRICK BROZE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 2023-73723
Panel consists of Chief Justice Brister and Justices Field and Farris
MEMORANDUM OPINION
Scott K. Field Justice
Before the City of Houston's November 2023 mayoral election, Derrick Broze applied for a place on the mayoral election ballot. Then-Mayor Sylvester Turner denied Broze's application because Broze's prior felony conviction rendered him ineligible to hold public office. See Tex. Elec. Code § 141.001(a)(4).
Broze filed suit, seeking declaratory relief under the theory that despite his felony conviction, he maintains a right of election ballot access under both state and federal law. In response, the State of Texas filed a motion to dismiss under Texas Rule of Civil Procedure 91a. On appeal, Broze contends that the trial court erred in granting the State's motion and dismissing his suit. We affirm the trial court's order.
STANDARD OF REVIEW
Under Rule 91a, a party "may move to dismiss a cause of action on the grounds that it has no basis in law or fact." Tex.R.Civ.P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Id. "In ruling on a Rule 91a motion to dismiss, a court may not consider evidence but 'must decide the motion based solely on the pleading of the cause of action, together with any [permitted] pleading exhibits.'" In re Farmers Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding) (quoting Tex.R.Civ.P. 91a.6).
We review the trial court's ruling on a Rule 91a motion to dismiss de novo "because the availability of a remedy under the facts alleged is a question of law and the rule's factual-plausibility standard is akin to a legal-sufficiency review." City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam); see also Marsh USA Inc. v. Cook, 354 S.W.3d 764, 768 (Tex. 2011) (explaining that application of law to undisputed facts is reviewed de novo). In conducting our review, we construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept the factual allegations as true in the pleadings to determine if the cause of action has a basis in law or fact. See City of Dallas, 494 S.W.3d at 724-25 (noting that "dismissal grounds under Rule 91a have been analogized to a plea to the jurisdiction" and citing Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex. App.-Houston [14th Dist.] 2014, pet. denied)).
ANALYSIS
In his first issue on appeal, Broze claims that the trial court erred in dismissing his suit because, as a matter of law, the Declaratory Judgment Act entitles him to a declaration that Section 141.001(a)(4) of the Texas Election Code violates the Texas Constitution and that his conviction for possession of a controlled substance is not a "high crime," as that term is used in the Texas Constitution. We disagree.
Article XVI, Section 2 of the Texas Constitution states, "Laws shall be made to exclude from office persons who have been convicted of bribery, perjury, forgery, or other high crimes." Tex. Const. art. XVI, § 2. The Texas Supreme Court has recognized that the term "other high crimes" in Article XVI, Section 2 of the Texas Constitution includes all felonies and that, as a result, an individual convicted of a felony is ineligible to hold public office in Texas. In re Bazan, 251 S.W.3d 39, 41-42 (Tex. 2008) (citing Tex. Att'y Gen. Op. No. JH-0020 (1973) ("The term 'other high crimes' includes any offense of the same degree or grade as those specifically enumerated, namely felonies." (emphasis added))).
We recognize that the Texas Court of Criminal Appeals has reached a separate conclusion that the phrase "other high crimes" means only crimes of moral turpitude, an interpretation Broze asks us to adopt. Perez v. State, 11 S.W.3d 218 (Tex. Crim. App. 2000). As an intermediate appellate court deciding a civil case, we are bound to follow the Texas Supreme Court's decisions on this issue. See Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022) ("One aspect of stare decisis-that lower courts must follow the precedents of all higher courts-is commonplace and uncontroversial. Sometimes called vertical stare decisis, this rule is inherent in the structure of a hierarchical system of courts.") (internal quotations removed).
In relevant part, Section 141.001 of the Texas Election Code provides:
(a) To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must:
...
(4) have not been finally convicted of a felony from which the person has not been [1] pardoned or [2] otherwise released from the resulting disabilities.Tex. Elec. Code § 141.001(a)(4) (internal numbering added for clarity).
On its face, Section 141.001(a)(4) does not exceed the scope of the Legislature's authority to enact laws excluding from office "persons who have been convicted of . . . high crimes," as that term has been interpreted by the Texas Supreme Court. See In re Bazan, 251 S.W.3d at 41-42. In other words, contrary to Broze's assertion, Section 141.001(a)(4) of the Texas Election Code does not conflict with Article XVI, Section 2 of the Texas Constitution. Id.
The undisputed allegations in Broze's pleadings establish that he is a convicted felon, and Broze does not allege that he has been pardoned or otherwise released from the resulting disabilities of his conviction. Therefore, Section 141.001(a)(4) prohibits Broze from holding public office. We overrule Broze's first issue.
In his second issue on appeal, Broze contends that the trial court erred in dismissing his suit because, as a matter of law, the Declaratory Judgment Act entitles him to declarations that he has a "protected property right in the restoration of his civil rights," including his right to access the election ballot, and that the present statutory scheme to restore his civil rights is "arbitrary and capricious." In other words, liberally construed, Broze claims that he has a protected property interest in accessing the election ballot, and the process for obtaining the restoration of his election ballot access violates due process. Again, we disagree.
"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). "But the range of interests protected by procedural due process is not infinite." Id. at 570. Protected interests in property are "not created by the Constitution." Id. at 577. "Rather they are created and their dimensions defined" by an independent source of law, such as a state statute or rule that entitles a person to certain benefits. Id. Thus, procedural due process only protects "liberty" and "property" interests as created and defined by a state statute or other independent source of law. Id. at 570.
The Fifth Circuit has held that "public office does not constitute property within the meaning of the Due Process Clause." Wilson v. Birnberg, 667 F.3d 591, 598 (5th Cir.), cert. denied, 567 U.S 936 (2012); cf. Snowden v. Hughes, 321 U.S. 1, 7 (1944) (holding that "an unlawful denial by state action of a right to state political office is not a denial of a right of property or liberty secured by the due process clause"); Taylor v. Beckham, 178 U.S. 548, 577 (1900) (holding "public offices are mere agencies or trusts, and not property as such" and that "the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right"). Thus, "there is no constitutional right to run for state office protected by the Fourteenth Amendment." Wilson, 667 F.3d at 598 (quoting Williams v. Board of Regents, 629 F.2d 993, 998 n. 9 (5th Cir. 1980), cert. denied Saye v. Williams, 452 U.S. 926 (1981)); see also Abeyta v. Town of Taos, 499 F.2d 323 (10th Cir. 1974); Burks v. Perk, 470 F.2d 163 (6th Cir. 1972), cert. Denied, 412 U.S. 905 (1973). Likewise, we cannot conclude that a candidate has a protected right to seek restoration of his election ballot access under the Due Process Clause of the Fourteenth Amendment.
Moreover, even assuming that Broze has a protected interest in restoring his right to election ballot access, we still could not conclude that his claim has a basis in law or fact. Section 141.001(a)(4) of the Texas Election Code recognizes only two methods for a convicted felon to restore his election ballot access. Tex. Elec. Code § 141.001(a)(4). A convicted felon seeking to restore his election ballot access may seek a pardon or be otherwise released from the resulting disabilities. Id.
Article IV, Section 11 of the Texas Constitution and Articles 48.01 and 48.03 of the Texas Code of Criminal Procedure grant the Governor the power to confer a full pardon, except in cases of treason or impeachment, on the advice of a majority of the board members from the Texas Board of Pardons and Paroles. Tex. Const. art. IV, § 11; Tex. Code Crim. Proc. arts. 48.01, 48.03; 37 Tex. Admin. Code §§ 143.1, 143.5, 143.14. Under Article 48.01 of the Texas Code of Criminal Procedure, an individual seeking a pardon to restore one's election ballot access, after successfully completing a term of deferred adjudication community supervision, must first apply and receive a written recommendation from the Texas Board of Pardons and Paroles. Tex. Code Crim. Proc. art. 48.01. Upon the written signed recommendation and advice of the Board of Pardons and Paroles, the Governor may grant or deny a pardon to a convicted felon. Id.; 37 Tex. Admin. Code § 143.1.
When reviewing executive reasoning for pardons, courts have a "low threshold of judicial reviewability." Faulder v. Texas Bd. of Pardons &Paroles, 178 F.3d 343, 344 (5th Cir.), cert. denied 527 U.S. 1017 (1999) (citing Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 289 (1998) (O'Connor, J., concurring)). Moreover, pardon powers do not violate the Due Process Clause when such powers no more than confirm the authority vested in the executive branch by the Legislature. Woodward, 523 U.S. at 276. Because the Governor's discretionary pardon authority under Article 48.01 of the Texas Code of Criminal Procedure is “a matter of grace,” see id. at 281, we review pardon proceedings for “minimal procedural safeguards,” see Faulder, 178 F.3d at 344 (citing Woodward, 523 U.S. at 289 (O'Connor, J., concurring) (noting that judicial intervention on executive pardon decision-making “might be warranted: where a state official ‘flipped a coin' to determine whether to grant clemency, or the state arbitrarily denied a prisoner any access to its clemency process”)).
Here, Broze failed to plead any facts showing that the Texas Board of Pardons and Paroles or the Governor ultimately denied his application for a pardon and the restoration of his civil rights. Additionally, Broze did not argue with particularity that the pardon review process, without further guidelines or criteria, does not provide minimal procedural safeguards.
Therefore, the trial court did not err in dismissing Broze's procedural due process claim because Broze's allegations, even if true, fail to establish that his suit has a basis in law and that he is entitled to relief. See City of Dallas, 494 S.W.3d at 724.
Because the trial court did not err in dismissing Broze's procedural due process claim, we overrule Broze's second issue on appeal.
CONCLUSION
We affirm the trial court's order dismissing Broze's suit under Rule 91a of the Texas Rules of Civil Procedure.