in Re Susan "Suzy" Falgout

ACCEPTED
03-17-00852-CV
21337073
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/16/2017 8:20 PM
JEFFREY D. KYLE
03-17-00852-CV
No. _________________
CLERK

FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
12/18/2017 8:00:00 AM
________________________________________________________________________
JEFFREY D. KYLE
Clerk

In The Court Of Appeals
For The Third Court Of Appeals District
Austin, Texas

IN RE SUZY FALGOUT,
Relator

EMERGENCY PETITION FOR WRIT OF MANDAMUS

ERIC OPIELA PLLC
Eric Opiela
State Bar No. 24039095
6612 Manzanita St.
Austin, Texas 78759
Telephone: 512.791.6336
Facsimile: 512.729.0226
Attorney for Relator

TEMPORARY RELIEF REQUESTED

i
 Identity of Parties and Counsel

Relator: Susan O. “Suzy” Falgout
Represented by:
ERIC OPIELA PLLC
Eric Opiela
State Bar No. 24039095
6612 Manzanita St.
Austin, Texas 78759
Telephone: 512.791.6336
Facsimile: 512.729.0226
eopiela@ericopiela.com

Respondent: Hon. Kathy Haigler, Chairman, Caldwell County Republican Party
P.O. Box 7
Lockhart, TX 78644
Telephone: (281) 923-8015
gopkat@sbcglobal.net

Real Party in Interest: Hon. Matt Kiely
920 Merritt Dr
Lockhart, TX 78644
Telephone: 512-971-9591
Fax: 512-398-2785
electmattkiely@gmail.com

ii
 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................................................ii

STATEMENT OF THE CASE ........................................................................................ 1

STATEMENT OF JURISDICTION ................................................................................. 2

ISSUE PRESENTED ....................................................................................................... 2

STATEMENT OF THE FACTS ...................................................................................... 3

ARGUMENT ................................................................................................................... 4

I. CANDIDATES SHOULD NOT BE PUNISHED FOR ERRORS OF
ELECTION OFFICIALS.................................................................................... 4
II. RESPONDENT HAS A DUTY TO NOT ALLOW HER ERROR AND
THE ERROR OF THE SECRETARY OF STATE TO KEEP RELATOR
OFF THE BALLOT; REFUSAL TO ALLOW ABATEMENT AND CURE
CONSTITUTES A CONTINUING BREACH OF THAT DUTY, SUBJECT
TO MANDAMAUS ............................................................................................. 7
III. RELATOR IS ENTITLED TO MANDAMUS RELIEF........................... 8
IV. THE PASSAGE OF THE FILING DEADLINE DOES NOT PRECLUDE
MANDAMUS RELIEF …………………………...…..……...…………………10
PRAYER ....................................................................................................................... 12

CERTIFICATION ......................................................................................................... 13

CERTIFICATE OF WORD COUNT COMPLIANCE ................................................... 14

CERTIFICATE OF SERVICE ....................................................................................... 14

APPENDIX.................................................................................................................... 15

iii
 TABLE OF AUTHORITIES

CASES

Axelson, Inc. v. McIlhany, 798 S.W.2d 550 (Tex. 1990) ................................................... 9
Bantuelle v. Renfroe, 620 S.W.2d 635 (Tex. Civ. App.-Dallas 1981) ............................... 9
In re Bell, 91 S.W.3d 784 (Tex. 2002) .............................................................................. 1
Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304 (Tex.1994) ................................. 10
In re Cullar, 320 S.W.3d 560 (Tex. Ct. App.-Dallas 2010)....................................... 2, 8, 9
Davis v. Taylor, 930 S.W.2d 581 (Tex. 1996) ................................................................ 11
Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177 (Tex. 1988) ............. 9
In re Francis, 186 S.W.3d 534 (Tex. 2006) ...................................................... 1, 5, 6, 7, 8
In re Gibson, 960 SW 2d 418 (Tex. Ct. App.-Waco 1998) ............................................... 2
In re Link, 45 S.W.3d 149 (Tex. Ct. App.-Tyler 2000) ..................................................... 9
O’Connor v. First Court of Appeals, 837 S.W.2d 94 (Tex. 1992) ..................................... 9
Painter v. Shaner, 667 S.W.2d 123 (Tex. 1984) ............................................................. 11
Risner v. Harris County Republican Party, 444 SW 3d 327 (Tex. Ct. App.-Houston
[14th District] 2014) ............................................................................................... 11
In re TXU Elec. Co., 67 S.W.3d 130 (Tex. 2001) ........................................................... 10
In re Watkins, 465 SW 3d 657 (Tex. App.-Austin 2014) ................................................ 11
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).............................................................. 10
In re Wilson, 421 S.W.3d 68 (Tex. App.-Fort Worth 2014) ............................................ 11

iv
CONSTITUTIONS, STATUTES, AND RULES

U.S. CONST., AMEND. XIV ............................................................................................... 8

TEX. CONST., ART. I ......................................................................................................... 8

TEX. CONST., ART. V.................................................................................................... 2, 9

TEX. ELEC. CODE, § 141.032 ................................................................................ 7, 10, 12

TEX. ELEC. CODE, § 141.034 ............................................................................................ 1

TEX. ELEC. CODE, § 141.062 ................................................................................ 4, 10, 12

TEX. ELEC. CODE, § 161.009 ............................................................................................ 8

TEX. ELEC. CODE, § 172.021 .................................................................................... 11, 12

TEX. ELEC. CODE, § 172.027 ............................................................................................ 3

TEX. ELEC. CODE, § 172.082 ............................................................................................ 1

TEX. ELEC. CODE, § 273.061 ........................................................................................ 2, 8

TEX. ELEC. CODE, § 273.063 ............................................................................................ 2

TEX. GOV’T. CODE, § 22.221........................................................................................ 2, 8

v
 STATEMENT OF THE CASE

Relator, Susan O. “Suzy Falgout, is a candidate for Caldwell County Justice of the

Peace, Precinct 1, in the 2018 Republican Primary Election. Real Party in Interest, Hon.

Matt Kiely (“Kiely”) is the sole opponent of Falgout in the 2018 Republican Primary

Election and the incumbent Caldwell County Justice of the Peace, Precinct 1. Respondent,

Hon. Kathy Haigler (“Haigler”) is the Caldwell County Republican Chair.

Relator asks this Court mandate Respondent to fulfill her duty to timely and

accurately review and notify Relator of defects in her ballot application such that she would

have the opportunity to cure the same and be placed on the primary election ballot. Relator

has demanded that Respondent fulfill her duty under the law, and the Texas Supreme

Court’s precedent in In re Francis, 186 S.W.3d 534, 538, 541 (Tex. 2006), to allow her to

abate any ballot challenge and cure any defects, and Respondent has refused to do so, which

prompted this Petition for Writ of Mandamus. Not only is the deadline for ballot drawing

quickly approaching (December 21, 2017 per TEX. ELEC. CODE § 172.082(c)), but early

ballots by mail will soon be printed and distributed, making this an emergency petition

pursuant to Texas Rule of Appellate Procedure 10.3. See TEX. ELEC. CODE § 141.034.

Given that the ballot drawing will likely occur prior to this Court’s resolution of this

case, Relator additionally asks this Court to grant temporary relief requiring Respondent to

participate in the ballot drawing pending resolution of this case. See, In re Bell, 91

S.W.3d 784, 785 (Tex. 2002) (granting temporary relief requiring respondents to allow

relator to participate in ballot draw pending resolution of case).

1
 STATEMENT OF JURISDICTION

This Court has jurisdiction of this case pursuant to TEX. ELEC. CODE § 273.061

which permits a Court of Appeals to issue writs of mandamus in order to ensure compliance

with the state’s election laws. The Court also has jurisdiction under its general powers to

issue writs and other orders as granted by Article 5 of the Texas Constitution and TEX.

GOV. CODE § 22.221. Relator has standing to bring this action as a candidate unlawfully

denied ballot access due to Respondent’s failure to fulfill her duties under the Election

Code. In re Gibson, 960 S.W.2d 418, 419 (Tex. Ct. App. - Waco 1998, orig. proceeding).

There are no issues of contested fact. Relator has also placed a demand for performance

and received a refusal of that demand from Respondent, fulfilling the necessary

prerequisites for entitlement to mandamus relief. In re Cullar, 320 S.W.3d 560, 566-567

(Tex. Ct. App.-Dallas 2010). This Court is a correct venue for this proceeding pursuant to

TEX. ELEC. CODE § 273.063 because the territory covered by the election is in this Court

of Appeals district.

ISSUE PRESENTED

1. Should the Court issue a writ of mandamus compelling Respondent to fulfill her

duty abate the challenge to Relator’s ballot application, allow her the opportunity to

cure any defects, and be placed on the 2018 Republican Primary Ballot?

2
 STATEMENT OF THE FACTS

Relator submitted her application, including a petition in lieu of filing fee, for a

place on the Republican Primary ballot on November 16, 2017. See Exhibit “A.” Her

application was reviewed by Respondent and accepted on November 17, 2017. Id. Nearly

four weeks later, and immediately following the filing deadline, Kiely filed a challenge to

Relator’s application with Chair Haigler on December 12, 2017 alleging that her petitions

in lieu of filing fee were invalid because in the statement prescribed by Section 172.027,

Election Code, she filled in the blank for the primary election with “2018” instead of the

name of the political party holding the primary election. See Exhibit “B.”

Section 172.027, Election Code, states:

The following statement must appear at the top of each page of a petition to
be filed under Section 172.021: "I know that the purpose of this petition is
to entitle (insert candidate's name) to have his or her name placed on the
ballot for the office of (insert office title, including any place number or other
distinguishing number) for the (insert political party's name) primary
election. I understand that by signing this petition I become ineligible to vote
in a primary election or participate in a convention of another party, including
a party not holding a primary election, during the voting year in which this
primary election is held."
TEX. ELEC. CODE § 172.027.

The petition form prescribed by the Secretary of State does not contain this

statement, rather the portion contained in the parentheticals has been removed and placed

in footnotes on a separate page. See Exhibit “C.” Unaware of the direction to place the

political party name in the petition blank, because the petition forms she was provided did

not contain the footnote direction, Relator placed “2018” in the blank immediately

3
preceding “primary election.” See Exhibit “D.” She did, however, notify each signer orally

that she was running in the Republican Primary and that they would not be able to vote in

any other party’s primary election if they signed her petition. Id. Neither she nor

Respondent noticed the error on her petitions, and those of at least one other candidate for

a different local office during the filing period, and both candidate’s applications were

accepted. Since no one has challenged the other candidate’s petitions as of the date of this

filing, she will appear on the primary ballot, but absent intervention by this Court, Relator

will not. Id.

Kiely requested a copy of Relator’s application and petitions and received the same

on November 20, 2017. See Exhibit “E.” He did not submit his challenge, however, until

three weeks later, after the filing deadline had passed, and Relator could no longer amend

her petition to correct the error. See Exhibit “B;” TEX. ELEC. CODE § 141.062. Relator,

through her counsel, responded to the challenge by requesting that, pursuant to Francis,

Respondent abate the challenge and allow Relator to cure the error. See Exhibit “F.”

Respondent refused and proceeded to reject Relator’s ballot the following day. See Exhibit

“G.” This final response prompted the Petition for Writ before this Court.

ARGUMENT

I. CANDIDATES SHOULD NOT BE PUNISHED FOR ERRORS OF ELECTION

OFFICIALS.

Two significant errors of election officials lead to Relator’s exclusion from the 2018

Republican Primary Ballot. First, the Secretary of State-prescribed form failed to include

4
on its face the statutory statement language which gave direction to candidates and other

circulators regarding what to place in the primary election blank. This proximately led to

Relator’s erroneous placement of the year instead of political party on the petition. Second,

Respondent failed to accurately review the petitions Relator submitted and notify her of

any defects until after the filing deadline in response to a challenge, foreclosing Relator’s

ability cure her error.

In cases where the candidate exercised diligence in filing her application early—as

Relator did—and the election official erroneously approved her application, only to reject

it after a late-filed challenge that could have been filed earlier by an opposing candidate

had he exercised diligence in doing so, the Texas Supreme Court has consistently granted

mandamus relief to ensure candidates do not receive capital punishment—exclusion from

the ballot—due to the error of election officials.

The seminal case on this subject is, of course, Francis, 186 S.W.3d. at 540. In

Francis, Judge Robert Francis’ application for a place on the primary ballot did not contain

a sufficient quantity of valid signatures because numerous pages of the petition lacked a

place number for the office sought on the Texas Court of Criminal Appeals. Francis, 186

S.W.3d at 537. His application was reviewed for defects by party officials, and was

approved erroneously. Francis, 186 S.W.3d at 538. Francis’ opponent reviewed his

application and found the defects, but did not challenge the application until the filing

deadline. Francis, 186 S.W.3d at 544. When the party chair refused to reject Francis’

application, the opponent sought and obtained a district court order enjoining the party

5
chair from certifying Francis’ name to the primary ballot. Id. The Texas Supreme Court

granted Francis’ application for a writ of mandamus directing the district court to vacate

its order to the party chair that Francis be excluded from the primary ballot. Francis, 186

S.W.3d at 543. The Francis Court made clear that the Election Code review process was

meant as a safety net for candidates, not a trap for the unwary where technicalities lead to

elections by default, as would occur here if Mandamus relief is not granted. Francis, 186

S.W.3d at 540-542.

The Francis Court therefore mandated a system of abatement and cure when

considering ballot challenges, holding that, “when a challenge is made based on facial

defects a party chair overlooked and approved when they could have been cured, the trial

court must abate the challenge and allow the candidate that opportunity. Candidates should

have the same opportunity to cure as a proper review before the filing deadline would have

allowed them.” Francis, 186 S.W.3d at 541.

The instant case falls squarely within the holding in Francis. Relator filed early—

within the first week; the defect was facially evident, yet was erroneously overlooked and

her application was approved; her opponent reviewed her petitions early, yet failed to

challenge them until the filing deadline had passed; as a result the party chair failed to

notify her of the defect until after she lacked the ability to correct them. Relator asked

Respondent for the opportunity to abate and cure as mandated by the Texas Supreme Court

in Francis. Rather than comply, on the advice of the Secretary of State (who ironically led

6
to the error in the first place by failing to include the statutory instruction on the face of the

form itself) she refused. As Justice Brister stated for the majority in Francis:

Candidates have a duty to file applications for office that comply with the
Texas Election Code. But the ballot is not restricted to those who never make
a mistake. To the contrary, the Election Code anticipates that candidates will
occasionally err and specifically requires party officials to assist them so that
no candidate is excluded from the ballot unnecessarily. When a defect could
have easily been cured had party officials properly performed their statutory
role, nothing in the Code requires exclusion as a mandatory remedy.
In re Francis, 186 S.W.3d at 536.

II. RESPONDENT HAS A DUTY TO NOT ALLOW HER ERROR AND THE

ERROR OF THE SECRETARY OF STATE TO KEEP RELATOR OFF THE

BALLOT; REFUSAL TO ALLOW ABATEMENT AND CURE CONSTITUTES A

CONTINUING BREACH OF THAT DUTY, SUBJECT TO MANDAMUS

Section 141.032 of the Texas Election Code requires the filing authority, in this case

Respondent, to review all applications accompanied by petition as soon as practicable.

TEX. ELEC. CODE § 141.032. The statute further provides that if the filing authority

determines that an application does not comply with the applicable requirements, she must

reject the application and immediately deliver to the candidate written notice of the reason

for the rejection. Id. The Francis Court made clear that, “The party chair's duty is not

conditioned on whether candidates comply with theirs; on the contrary, the party chair's

duty only makes a difference when a candidate's efforts have fallen short.” Francis, 186

S.W.3d at 541.

7
 The Election Code imposes upon party chairs a duty to accurately and timely review

petitions, and notify early filers, like Relator, of any defects in time for her to have an

opportunity to cure. By not allowing her that opportunity now, and excluding her from the

ballot, Respondent continues to breach that duty imposed upon her by law. This duty is

mandatory and not discretionary, for if it were Equal Protection would be implicated. U.S.

CONST., amend XIV, § 1; TEX. CONST., art. I, § 3. As the Francis Court stated, “If a party

chair happens to discover a defect in one petition but overlooks the same defect in another,

an element of chance is introduced into the primary process. The review procedure itself

indicates that the Legislature did not intend to create such a whimsical form of democracy.”

Francis, 186 S.W.3d at 541. Here, Respondent should not have the discretion, however

well intentioned, to reject one application containing the same error as another she accepts,

simply because one was challenged and the other was not.

In order to compel the consistent performance of these mandatory duties, a party

official who fails to carry out a duty under the Election Code is subject to mandamus as if

the official were a public officer. TEX. ELEC. CODE §§ 161.009, 273.061.

III. RELATOR IS ENTITLED TO MANDAMUS RELIEF

The Courts of Appeal have jurisdiction to "compel the performance of any duty

imposed by law in connection with the holding of an election ... regardless of whether the

person responsible for performing the duty is a public officer." In re Cullar, 320 S. W. 3d

560, 563-4 (Tex. App. – Dallas 2010, no writ), citing TEX. ELEC. CODE § 273.061; see also

TEX. GOV'T CODE § 22.221 (courts of appeals may issue writs of mandamus and all other

8
writs necessary to enforce jurisdiction of court); TEX. CONST. ART. V (addressing judicial

power of Texas courts and providing courts of appeals shall have jurisdiction, original and

appellate, as prescribed by law). To be entitled to mandamus relief, a relator must (1)

establish that the respondent has a legal duty to perform a non-discretionary act, (2) demand

performance from a respondent, and (3) respondent has to refuse to act. Cullar, 320 S. W.

3d at 564, citing O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.1992) (citing

Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 178 (Tex.1988)); see

also Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (in order for mandamus

to lie, respondent must have refused to act); Bantuelle v. Renfroe, 620 S.W.2d 635, 639

(Tex.Civ.App.-Dallas 1981, no writ) (before mandamus will issue to require court reporter

to prepare statement of facts, relator must show demand was made of reporter and he

refused); cf. In re Link, 45 S.W.3d 149, 151-52 (Tex.App.-Tyler 2000, orig. proceeding)

(in proceeding pursuant to section 273.061, relators must establish clear legal right to action

they seek to compel, and duty of person sought to be compelled must be clearly fixed and

required by law).

The Election Code and Supreme Court precedent create a legal duty for

Respondent to accurately review ballot applications, give candidates timely notice of those

errors, and allow for abatement and cure in the event Respondent fails to uphold those

duties. Relator issued to Respondent a written demand that she fulfill those duties. See

Exhibit “F.” Respondent has refused to act. See Exhibit “G.” Therefore, Relator has

clearly established the right to mandamus relief.

9
 Mandamus is an extraordinary remedy available “only in situations involving

manifest and urgent necessity and not for grievances that may be addressed by other

remedies.” In re TXU Elec. Co., 67 S.W.3d 130,132 (Tex. 2001), citing Walker v. Packer,

827 S.W.2d 833, 840 (Tex.1992). To obtain Mandamus relief, the relator must demonstrate

a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-40. A

party establishes that no adequate remedy at law exists by showing that the party is in real

danger of permanently losing its substantial rights. Canadian Helicopters, Ltd. v. Wittig,

876 S.W.2d 304, 306 (Tex.1994). Here, Relator has the right to cure her defect and appear

on the ballot, yet will not have the opportunity to seek the vote of her constituents absent

this Court’s action.

III. THE PASSAGE OF THE FILING DEADLINE DOES NOT PRECLUDE

MANDAMUS RELIEF

Section 141.032 (g), Election Code states, “After the filing deadline: (1) a candidate

may not amend an application filed under Section 141.031; and (2) the authority with

whom the application is filed may not accept an amendment to an application filed under

Section 141.031.” TEX. ELEC. CODE § 141.032(g). Additionally, Section 141.062 (c),

Election Code states, “After the filing deadline: (1) a candidate may not amend a petition

in lieu of a filing fee submitted with the candidate's application; and (2) the authority with

whom the application is filed may not accept an amendment to a petition in lieu of a filing

fee submitted with the candidate's application.” TEX. ELEC. CODE § 141.062(c).

10
 Two Courts of Appeal have held that the above language precludes cure of a defect

in petitions required for urban judicial office following the filing deadline. See, Risner v.

Harris Cnty. Republican Party, 444 S.W.3d 327, 341-344 (Tex. App.-Houston [1st Dist.]

2014, no pet.); In re Wilson, 421 S.W.3d 686, 689 (Tex.App.-Fort Worth 2014, orig.

proceeding).1 However, a careful reading of the plain language of Texas Election Code,

demonstrates that these cases are distinguishable, as they dealt with judicial petitions

required in appellate districts containing a population greater than one million or trial and

justice courts in counties of greater than 1.5 million. Section 172.021(e), Election Code

imposes a separate, mandatory petition requirement for these offices. TEX. ELEC. CODE §

172.021(e).

Petitions in lieu of filing fee, however, are optional—a candidate may choose to

either file an application accompanied by a fee or by a petition in lieu of fee. TEX. ELEC.

CODE § 172.021(b) (stating, “An application must, in addition to complying with Section

141.031, be accompanied by the appropriate filing fee or a petition in lieu of the filing fee

that satisfies the requirements prescribed by Section 141.062.”). The plain language of

Section 172.021(b) reveals that the application is separate from, and “accompanied by the

appropriate filing fee or a petition in lieu of the filing fee.” Id. While for the purposes of

1
This Court and the Texas Supreme Court have, in cases not directly related to petition defects, “declined to require
rigid adherence to statutory deadlines when a candidate otherwise entitled to a place on the ballot faces elimination
from a race because of an election official's failure to perform a nondiscretionary duty through no fault of the
candidate.” In re Watkins, 465 SW 3d 657, 659-660 (Tex. App.-Austin 2014, orig. proceeding); citing Davis v.
Taylor, 930 S.W.2d 581, 583 (Tex.1996), see also Painter v. Shaner, 667 S.W.2d 123 (Tex. 1984). Since Relator is
not wholly without fault in this error, she does not argue that these cases are binding on this Court in the context of
this case, rather she presents them here for the proposition that the passage of the filing deadline does not always
preclude mandamus relief.

11
review, a petition accompanying an application is “considered part of the application,” it

“is not considered part of the application for purposes of determining compliance with the

requirements applicable to each document.” TEX. ELEC. CODE § 141.032(c). Therefore,

even if a petition must be rejected due to noncompliance with form, content or procedure,

its accompanying application can instead be accepted with the tender by the candidate of

an appropriate filing fee. While a petition in lieu of filing fee may not be amended after

the filing deadline, the Election Code nowhere states that a filing fee may not be presented

or accepted after the filing deadline—only that if a filing fee is presented and returned for

insufficient funds after the filing period the application is not considered to be timely filed.

TEX. ELEC. CODE § 172.021 (b-2).

Here, Relator submitted a petition in lieu of filing fee to accompany her application.

She should be allowed to cure any defect in her petition by tendering a filing fee with her

application just as she would have been able to do if Respondent had timely fulfilled her

duty during the filing period. Mandamus relief ordering Respondent to allow abatement

and cure by tender of filing fee is not precluded by either Section 141.032 (g) or Section

141.062 (c), Election Code.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Relator prays that the Court grant her

Emergency Petition for Writ of Mandamus and issue a writ of mandamus compelling

Respondent, to abate the challenge to her ballot application, allow her to cure by tendering

the appropriate filing fee, and upon doing so accept her application for a place on the 2018

12
Republican Primary Ballot for Caldwell County Justice of the Peace, Place 1. Relator

additionally asks for temporary relief allowing her to participate in the ballot drawing

pending resolution of this case. Finally, Relator prays for all other relief, at law or in equity,

to which she may be justly entitled.

Respectfully submitted,

ERIC OPIELA PLLC
6612 Manzanita St
Austin, Texas 78759
Phone:512.791.6336
Fax: 512.792.0226

By: _________________________
Eric C. Opiela
State Bar No. 24039095
eopiela@ericopiela.com

Attorney for Relator
Susan “Suzy” Falgout

CERTIFICATION

I hereby certify that I have reviewed the above Petition for Writ of Mandamus and have
concluded that every factual statement in the said petition is supported by competent
evidence included in the appendix or record.

_________________________
Eric C. Opiela

13
 CERTIFICATION OF WORD COUNT COMPLIANCE

I certify that this document complies with Rule of Appellate Procedure 9.4.
Excluding the portions listed in Rule 9.4(i)(1), and according to the word count of
the computer program used, this document contains 3,283 words.

_______________________
Eric C. Opiela

CERTIFICATE OF SERVICE

By my signature above, I hereby certify that a true and correct copy of this document
was served as required Texas Rule of Appellate Procedure 9.5 to Respondent, and Real
Party in Interest on this the 16th day of December, 2017.

VIA ELECTRONIC MAIL AND CMRRR:

Respondent: Hon. Kathy Haigler, Chairman, Caldwell County
Republican Party
P.O. Box 7
Lockhart, TX 78644
Telephone: (281) 923-8015
gopkat@sbcglobal.net

Real Party in Interest: Hon. Matt Kiely
920 Merritt Dr
Lockhart, TX 78644
Telephone: 512-971-9591
Fax: 512-398-2785
electmattkiely@gmail.com

_________________________
Eric C. Opiela

14
 APPENDIX

Exhibit A. Application of Falgout

Exhibit B. Kiely Challenge

Exhibit C. Secretary of State Petition Form

Exhibit D. Affidavit of Falgout

Exhibit E. Kiely Open Records Request

Exhibit F. Response and Demand by Falgout

Exhibit G. Rejection Letter by Chair Haigler

Exhibit H. Affidavit of Eric Opiela

15
Exhibit A, Page 1
Exhibit A, Page 2
Exhibit A, Page 3
Exhibit A, Page 4
Exhibit A, Page 5
Exhibit A, Page 6
Exhibit A, Page 7
Exhibit A, Page 8
Exhibit A, Page 9
Exhibit A, Page 10
Exhibit A, Page 11
Exhibit A, Page 12
Exhibit A, Page 13
 From: Kathy Haigler gopkat@sbcglobal.net
Subject: Fw: Suzy Falgout petition Challenge
Date: December 13, 2017 at 8:24 AM
To: Eric Opiela eric@ericopiela.com

Challenger's request

Kathy Haigler
<°)))><

----- Forwarded Message -----
From: Matt Kiely
To: Kathy Haigler
Sent: Tuesday, December 12, 2017 4:40 PM
Subject: Suzy Falgout petition Challenge

Kathy,

I am challenging Suzy Falgouts petition in lieu of pay filing fee. The challenge is for
the fatal error of not placing the party name that she is running under.

Matt Kiely

Exhibit B
AW2-3 PETITION IN LIEU OF A FILING FEE and/or PETITION FOR JUDICIAL OFFICE (for use in a primary election)
Prescribed by Secretary of State Name of Circulator _________________ Page ____ of ____
(PETICIÓN PRESENTADA EN SUSTITUCION DEL PAGO DE DERECHOS DE INSCRIPIÓN y/o
Sections 141.063, 172.021, 172.025,
PETICIÓN PARA UN PUESTO OFICIAL JUDICIAL SOBRE LA BOLETA – para efectos de elecciones primarias)
Texas Election Code 5/2017
Signing the petition of more than one candidate for the same office in the same election is prohibited. (Se prohibe firmar la petición de más de un candidato para el mismo puesto oficial en la misma elección.)
COMPLETE ALL BLANKS. (LLENE TODOS LOS ESPACIOS EN BLANCO.)
This statement MUST be read to each person before signing the petition. (ES OBLIGATORIO leer la siguiente declaración a todos los firmantes antes de que la suscriban.)
“I know that the purpose of this petition is to entitle __________________________________¹ to have their name placed on the ballot for the office of _____________________________________________² for the
_________________________³ primary election. I understand that by signing this petition I become ineligible to vote in a primary election or participate in a convention of another party, including a party not holding a primary
election, during the voting year in which this primary election is held.” (Reconozco que el objeto de la presente petición es facultar a ___________________________¹ para que su nombre aparezca en la boleta como candidato(a) al puesto de
____________________________² en la elección primaria del Partido _____________________________³. Entiendo que al firmar la petición, dejo de tener derecho a votar en una elección primaria de otro partido y a tomar parte en la convención del mismo,
incluso de un partido que no celebre una elección primaria, durante el año electoral en que se celebre dicha elección primaria.)
Date Signed Signature Printed Name Residence Address (Including City, Texas, Zip) County Voter VUID Number6 Date of Birth6
(Fecha de Firma) (Firma) (Nombre en letra de molde) (Dirección de Residencia (Incluye Ciudad, Estado, Código Postal)) (Condado) Núm de VUID de Votante) (Fecha de Nacimiento)

AFFIDAVIT OF CIRCULATOR (DECLARACION JURADA DE LA PERSONA QUE HACE CIRCULAR LA PETICION)
STATE OF TEXAS (ESTADO DE TEJAS) COUNTY OF (CONDADO DE) _______________________________________ BEFORE ME, the undersigned, on this ___/___/___ (date) personally appeared (ANTE MI, el/la suscrito(a), en
este (fecha) compareció) __________________________, (name of person who circulated petition,) – (nombre de la persona que hizo circular la petición) who being duly sworn, deposes and says: “I called each signer’s attention to the above
statements and read them to the signer before the signer affixed their signature to the petition. I witnessed the affixing of each signature. The correct date of signing is shown on the petition. I verified each signer’s registration status
and believe that each signature is the genuine signature of the person whose name is signed and that the corresponding information for each signer is correct.” (quien, habiendo prestado el juramento correspondiente, declaró y dijo: “Llamé la
atención de cada firmante sobre la declaración citada y se la lei antes de que la suscribiera. Atestigüé cada firma, y la fecha correcta de las firmas consta en la petición. Verifiqué la situación de cada firmante en lo concerniente a su inscripción y creo que cada
firma es la auténtica de la persona cuyo nombre aparece firmado y que son exactos los datos correspondientes a cada firmante.”) SWORN TO AND SUBSCRIBED BEFORE ME THIS DATE (JURADO Y SUSCRITO ANTE MI, CON ESTA FECHA)
(SEAL)
X ___________________________________________ X _________________________________________________ X ____________________________________________
Signature of circulator (Firma de la persona que hizo circular la petición) Signature of officer administering oath(Firma del/de la funcionario(a) que le tomó juramento) Title of officer administering oath (Titulo oficial del/de la funcionario(a) que le tomó juramento)
INSTRUCTIONS AND FOOTNOTES ON BACK (AL DORSO: INSTRUCCIONES Y ANOTACIONES)

Exhibit C, Page 1
 GENERAL INSTRUCTIONS

The petition shall be filed with the same officer with whom an application for a place on the ballot for the office being sought is to be filed
and must be filed at the same time as such application.

The petition may consist of several parts, and each part may consist of several pages. The statement in the box at the head of the page must
appear at the head of each page of signatures. The affidavit at the bottom of the page must accompany each part but is not required for each
page of signatures.

The person or persons who circulate the petition must be administered the affidavit by the proper officer.

INSTRUCTIONS (Petition in Lieu of Filing Fee)

The minimum number of signatures that must appear on the petition is:
(1) 5,000, for a statewide office; or
(2) for a district, county, or precinct office, the lesser of:
(A) 500 , or
(B) two percent of the total votes received in the district, county, or precinct, as applicable, by all the candidates for
governor in the most recent gubernatorial general election, unless that number is under 50, in which case the
required number of signatures is the lesser of:
i. 50; or
ii. 20 percent of that total vote.

INSTRUCTIONS (Petition for Judicial Office on Primary Ballot)

The petition must contain at least 250 signatures of voters eligible to vote for the office sought. No signatures on the petition may be
collected on the grounds of a county courthouse or courthouse annex.

The petition applies to all candidates running for judicial office, including justice of the peace, in Dallas, Tarrant, Bexar, and Harris Counties
and all candidates running for Justice, Court of Appeals in the 1st, 2nd, 3rd, 4th, 5th, and 14th Judicial Districts.
SPECIAL INSTRUCTIONS
A judicial candidate for whom the petition for judicial office applies, who decides to file by a petition in lieu of filing fee, candidate must file
a total of 750 signatures on this form.

FOOTNOTES
¹ Insert candidate’s name.
² Insert office title, including any place number or other distinguishing number.
³Insert political party’s name.
4 All oaths, affidavits, or affirmations made within this State may be administered and a certificate of the fact given by a judge, clerk, or
commissioner of any court of record, a notary public, a justice of the peace, city secretary, and the Secretary of State of Texas.
5For a candidate for a judicial district office, including justice of the peace, that is contained wholly or partially in a county with a population
of more than 1.5 million, the petition in lieu of filing fee must contain an additional 250 signatures. This includes all judicial races in Dallas,
Tarrant, Bexar, and Harris Counties and all candidates running for the Justice, Court of Appeals in the 1st, 2nd, 3rd, 4th, 5th, and 14th Judicial
Districts.
6
Either the voter unique identification number (VUID) or the date of birth is required.

INSTRUCCIONES GENERALES

Esta petición deberá presentarse ante el mismo oficial a quien se solicite inscripción en la boleta para el puesto que se busca y al mismo tiempo que la solicitud correspondiente.

La petición puede estar dividida en diversas secciones y cada sección a su vez puede constar de varias páginas. La declaración que está en el cuadro que encabeza el formulario
deberá aparecer al principio de cada boja que contenga firmas. La declaración jurada que aparece al pie del formulario deberá incluirse con cada sección de la petición; no se
exige que aparezca en cada página de firmas.

La(s) persona(s) que haga(n) circular la petición deberá(n) firmar la declarción jurada ante el oficial correspondiente.

INSTRUCCIONES: (Petición presentada en sustitución del pago de derechos de inscripción)

El menor número de firmas que deberán constar en la petición será de …

(1) 5,000 firmas, cuando se trate de un cargo estatal; o en su defecto,
(2) cuando se trate de cargos correspondientes a distritos, condados o precintos, la menor de las dos sumas a continuatión:
(A) 500 firmas ; o en su defecto,
(B) el 2 por ciento del total de los votos recibidos en el distrito, el condado o el precinto (según el caso) por todos los candidatos a gobernador en la
elección general más reciente para ese cargo, a menos de que tal número sea inferior a 50; en tal caso, el minimo de firmas que se requiere es la
menor de las dos sumas a continuación:
(i) 50 firmas; o en su defecto,
(ii) el 20 por ciento del voto total

INSTRUCCIONES: (Petición para un puesto oficial judicial sobre la boleta de la elección primaria)

La petición deberá incluir a lo menos 250 firmas de votantes que están elegibles para votar sobre el puesto oficial solicitado. No se podrán colectar firmas para la petición en el
terreno del edificio de las cortes o la parte anexa del edificio de las cortes.

La petición se dirige a todos los candidatos que solicitan un puesto official judicial, incluyendo juez de paz en los Condados de Dallas, Tarrant, Bexar Y Harris, y todos los
candidatos que solicitan el puesto oficial de Juez Corte de Apelaciones, en los Distritos Núm. 1, 2, 3, 4, 5, y 14.
INSTRUCCIONES ESPECIALES
Un candidato para un puesto oficial judicial que requiere uso de la petición especial para puestos judiciales, que decide presentar petición en sustitución del pado de derechos de
inscripción deberá colectar 750 firmas en total, en este formulario.
ANOTACIONES
¹Indicar el nombre del candidate.
²Indicar el cargo oficial e incluir el número de su lugar en la boleta o cualquier otro número distintivo.
³Indicar el nombre del partido politico.
4Todo juramento, testimonio o afirmación hecho dentro de este Estado se podrá administrar y se podrá dar un certificado del hecho por un juez, escribano, o comisionado de
alguna corte de registro, un notario público, un juez de paz, secretario de la ciudad, y el Secretario del Estado de Texas.
5Para candidatos a puestos judiciales, incluyendo el cargo de juez de paz, correspondientes a distritos incluidos total o parcialmente en condados que tengan una población de
más de 1,5 millones, la petición presentada en sustitución del pago de derechos de inscripción deberá incluir 250 firmas adicionales. Esta disposición abarca toda elección para
puestos judiciales que se celebre en los condados de Dallas, Tarrant, Béxar y Harris e incluye a los candidatos a Juez del Tribunal de Apelaciones correspondientes a los Distritos
Judiciales números 1, 2, 3, 4, 5, y 14.
6
Se requiere o su número de identificación único de votante o su fecha de nacimiento.

Exhibit C, Page 2
Exhibit D, Page 1
Exhibit D, Page 2
 From: Kathy Haigler gopkat@sbcglobal.net
Subject: Fw: Suzy falgout petition
Date: December 12, 2017 at 4:03 PM
To: Eric Opiela eric@ericopiela.com
Cc: Suzy Falgout suzyf@me.com

Kathy Haigler
<°)))><

----- Forwarded Message -----
From: Kathy Haigler
To: Matt Kiely
Sent: Monday, November 20, 2017 11:51 PM
Subject: Re: Suzy falgout petition

Judge Kiely,

Per your request, I have attached a redacted copy of Suzy Falgout's Petitions in Lieu of a Filing Fee.
Per legal counsel, I am required to redact the birthdates, because that is private information by
common law.

Please reply by e-mail to acknowledge receipt.
Thank you!

Kathy Haigler
<°)))><

Home (512) 243-9899
Cell (281) 923-8015
Republican County Chairman
Caldwell County, Texas

www.caldwellcountytexanrepublicans.org
www.facebook.com/CCRPTX

From: Matt Kiely
To: gopkat@sbcglobal.net
Sent: Monday, November 20, 2017 9:06 PM
Subject: Suzy falgout petition

Kathy,

I am requesting all pages of Suzy Falgouts petition to file for a place on the ballot
for JP pct.1. If you will please email this me.

Thank you,

Matt Kiely

Exhibit E, Page 1
CCF11202017.p
df

Exhibit E, Page 2
 Eric Opiela PLLC
ATTORNEY AND COUNSELOR AT LAW
6612 MANZANITA ST.
AUSTIN, TEXAS 78759

Telephone: 512.791.6336 E-mail: eopiela@ericopiela.com
Fax: 512.729.0226

December 13, 2017

The Honorable Kathy Haigler
Caldwell County Republican Chair
P. O. Box 7
Lockhart, Texas 78644-0007

Dear Chair Haigler:

This firm represents Suzy Falgout. It has come to our attention that a challenge has been lodged
against her application for a place on the 2018 Republican Primary Ballot for Caldwell County
Justice of the Peace, Precinct 1, by her opponent, Matt Kiely. Ms. Falgout hereby responds to this
challenge and demands that you allow her the opportunity to cure any error in accordance with In
re Francis, 186 S.W.3d 534, 538, 541 (Tex. 2006).

As you know, Ms. Falgout filed her application with you on November 16, 2017, more than three
weeks prior to the filing deadline, and you accepted it as conforming to the Texas Election Code’s
requirements as to form, content, and procedure, on the next day, November 17, 2017. Now,
nearly four weeks later, and after the filing deadline, Mr. Kiely challenged her petition in lieu of
filing fee accompanying her application because in the statement prescribed by Section 172.027,
Election Code, she filled in the blank for the primary election with “2018” instead of the name of
the political party holding the primary election. I note that the official petition form prescribed by
the Secretary of State, which she used, does not contain the statutory text prescribed by Section
172.027, and omits the relevant instruction “(insert political party's name)” relegating it to a
footnote appearing on a separate page from the petition. It is therefore reasonable that a candidate
or circulator would not have known to include the political party name, rather than the year in
which the primary is conducted, on the form due to the Secretary of State’s error.

To the extent that as a result of this challenge you determine that you now will reject her
application, I must bring your attention to the fact that you erroneously accepted her application
nearly a month ago and failed to give her notice of any error until she no longer had an opportunity
to cure after the filing deadline. Should you reject her application now, without first providing her
an opportunity to cure the alleged defect leading to the rejection, you will fall squarely within the
facts and law laid down by the Texas Supreme Court in Francis,186 S.W.3d at 541, “when a
challenge is made based on facial defects a party chair overlooked and approved when they could
have been cured, [you] must abate the challenge and allow the candidate that opportunity.
Candidates should have the same opportunity to cure as a proper review before the filing deadline
would have allowed them.”

Exhibit F, Page 1
Honorable Kathy Haigler
January 14, 2016
Page 2

While the candidate has a duty to file a proper application and petition, you, as party chair, have a
duty to “assist candidates with ‘the myriad and technical requirements’ governing those
documents. The party chair's duty is not conditioned on whether candidates comply with theirs; on
the contrary, the party chair's duty only makes a difference when a candidate's efforts have fallen
short.” Id. As a former county chair myself, I know the difficulty of the burden placed upon you
to review applications and petitions, and do not envy the position you are in. Nevertheless, Texas
Supreme Court precedent imposes a duty upon you to accurately and timely review petitions, and
notify early filers, like Ms. Falgout, of any defects in time for her to have an opportunity to cure.
If you do not allow her that opportunity now, and exclude her from the ballot, you will breach that
duty imposed upon you by law. This duty is mandatory and not discretionary.

I therefore ask and demand that if you accept Mr. Kiely’s challenge, you must abate any rejection
until you have allowed a reasonable opportunity to cure any defect alleged by him as required by
law. Ms. Falgout stands ready to timely cure any defect you find exists with her application.
However, if you do not allow the opportunity for abatement and cure prior to rejecting Ms.
Falgout’s application, she will be forced to seek mandamus relief from the Third Court of Appeals,
to compel the performance of the duty described in this correspondence.

If you have any questions, please do not hesitate to call me at 512.791.6336.

In advance appreciation of your cooperation,

Eric Opiela
Texas Bar No. 24039095

VIA ELECTRONIC MAIL
gopkat@sbcglobal.net

2
Exhibit F, Page 2
 Caldwell County Republican Primary

December 15, 2017

Mrs. Suzy Falgout (via hand-delivery 12/14/2017)
5041 State Park Road
Lockhart, TX 78644

Dear Mrs. Falgout:

Thank you for your application for a place on the 2018 Republican Primary Election ballot which
was filed in the Primary Office on November 16, 2017.

On November 17, 2017 we accepted your application and petitions and placed your name on the
Secretary of State’s website as a candidate in “Filed” status.

We received a challenge to your petitions in lieu of a filing fee at 6:01 p.m. on December 11, 2017.
Upon review, we found a flaw in the statement on top of each page of your petitions in the blank at
the beginning of the second line. Your petitions say “2018” rather than the word “Republican” as
required by Texas Election Code Section 172.02 as follows:

STATEMENT ON PETITION. The following statement must appear at the top of
each page of a petition to be filed under Section 172.021: "I know that
the purpose of this petition is to entitle (insert candidate's name) to
have his or her name placed on the ballot for the office of (insert office
title, including any place number or other distinguishing number) for the
(insert political party's name) primary election. I understand that by
signing this petition I become ineligible to vote in a primary election
or participate in a convention of another party, including a party not
holding a primary election, during the voting year in which this primary
election is held."

I have been instructed by the Secretary of State that I must now reject your application. This letter
serves as your notice of rejection.

Thank you,

Kathy Haigler
Republican County Chairman
Caldwell County Republican Party

cc: Eric Opiela, by e-mail at eric@ericopiela.com
Enclosures: Copies of Application and Petitions in Lieu of Filing Fee

Exhibit G
 Affidavit of Eric Opielą

State of Texas §
§
County of Travis §

Before Me, the undersigned notary, on this day personally appeared Eric Opielą, the
affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant
testified:

“My name is Eric Opielą. I am over the age of 18, have not ever been convicted of a felony or a
crime involving moral turpitude and am otherwise fully competent to make this Affidavit.
I, Eric Opielą, swear that the following documents listed as Exhibits A through G are true and
correct copies of the documents specified below:
Exhibit A. Application of Falgout
Exhibit B. Kiely Challenge
Exhibit C. Secretary of State Petition Form
Exhibit D. Affidavit of Falgout
Exhibit E. Kiely Open Records Request
Exhibit F. Response and Demand by Falgout
Exhibit G. Rejection Letter by Chair Haigler
Each and every statement contained in this Affidavit is true and correct and based on my
personal knowledge.”
Further Affiant Sayeth Not.

Eric Opielą
Sworn to and Subscribed Before Me this 16th day ofrfecember, 2017 to certify which
witness my hand and seal of office.

tWi,.
M- fio
Notary Public, State of Texas
VIOLA MARIE PIĄTEK
My Commission Expires
August 4, 2019
S*ţ

Exhibit H