in Re Nona Reed

In the

Court of Appeals
Second Appellate District of Texas
at Fort Worth

No. 02-22-00113-CV

IN RE NONA REED, Relator

Original Proceeding

Tarrant County, Texas

Before Sudderth, C.].; Birdwell and Walker, J].

Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
I. Introduction

In this original proceeding, Relator Nona Reed seeks mandamus relief requiring
that Real Party in Interest Burleson Independent School District officially recognize
her candidacy for Place 1 on its Board of Trustees by placing her on the official ballot
for the May 7, 2022 general election. Concluding that Reed failed to qualify as a
candidate due to two errors on her timely filed application, the District, through a
unanimous vote of the Board, including the incumbent Place 1 member, rejected her
candidacy, certified the incumbent Place 1 and Place 2 members unopposed for
reelection, declared them officially reelected, and canceled the May 7 general election.
Because we agree with the Secretary of State’s evaluation that Reed’s timely filed
application met all statutory criteria for ballot qualification, we hold that the District
wrongfully excluded Reed from the May 7 ballot and thereby unlawfully certified the
incumbent Place 1 member unopposed for reelection and declared him reelected
without resort to the May 7 general election. Although it is too late to conduct the
District’s contested Place 1 general election as originally scheduled, given the District
cannot legally declare the incumbent Place 1 member reelected under the
circumstances, a vacancy will occur at the end of his current term, and
Section 11.060(c) of the Texas Education Code provides for the remedy of a special
election to fill the vacancy. See Tex. Educ. Code Ann. § 11.060(¢). Accordingly, we

grant the petition for writ of mandamus; we enjoin the District from certifying the
incumbent Place 1 member unopposed for reelection and declaring him reelected to a
new term and further order the District to conduct a special election to fill the
vacancy resulting from the inevitable expiration of the current Place 1 term at the
eatliest opportunity afforded by and 1n accordance with the relevant provisions of the
Texas Election Code.
II. Background

The District “lies partly in Tarrant County and partly in Johnson County.”
Baker v. Brown, 165 S.W.2d 522, 522 (Tex. App.—Fort Worth 1942, no writ). As the
governing body of the District, the Board of Trustees consists of seven members, all
of whom ate elected at-large for three-year terms.' Each year, a general election for at
least two places on the Board—three every third year—is conducted in May. This
year’s general election, scheduled for May 7, 2022, was to have been for Places 1 and
2.° Because the District covers portions of both Tarrant and Johnson Counties,
general and special elections for the Board are conducted in and administered by both

counties.

'We rely on information about the Burleson ISD Board of Trustees and their
posted documents contained in the Districts website and located at
https://www.burlesonisd.net/domain/28. We may take judicial notice of information
contained on a governmental website whether requested by a party or on our own

motion. See City of E/ Paso v. Fox, 458 S.W.3d 66, 71-72 (Tex. App.—El Paso 2014, no
pet.).

*The District asked us to take judicial notice of the election calendar, and we do
so. See Tex. R. Evid. 201(c)(2).
Reed is a former teacher in the District. On February 18, 2022, she presented
herself at the administration offices of the District in Johnson County to apply as a
candidate for Place 1 on the Board. The District had given notice, through its own
website, that applicants who wished to file applications 1n person should so appear
and file between January 19 and February 18, 2022.°

Reed asked to speak to Lydia Smylie, the assistant elections administrator for
the District. Smylie took Reed to her office and handed her the application packet to
apply for a ballot position for the May 7 board election. The application itself was a
form prescribed by the Secretary of State 1n September 2021 for use in a general
election for a city, school district, or other political subdivision. At the top of the
application, the form tmstructed that all information requested must be provided
unless specifically identified as optional and that the failure to provide any required
information may result in rejection of the application.

Reed completed the application and handed it (along with supporting
documents) to Smylie, asking her if everything was filled in correctly. Smylie answered
that she could not help Reed with anything. Reed replied that Smylie could help her if
it was filled out incorrectly “but not to choose a seat to run.” Smylie looked at the

application, then administered the required oath. The oath contained Reed’s name and

3See document entitled 2022 Notice of Election Deadline to File for Place on
Ballot, https: //www.burlesonisd.net/Page/1242 (last visited May 3, 2022).

4
expressly stated that she was a candidate for the office of “School Board Trustee
Pl. 1.” Smylie accepted the application, and Reed left the administration offices.

A copy of Reed’s completed and sworn application is reproduced below:

7-08

Preseribad by Secretary of State

Séction 141.031, Chapters 1423 and 144, Teves Election Goce
(6/2021

APPLICATION FOR A PLACE ON THE BALLOT FOR A GENERAL ELECTION
FOR ACITY, SCHOOL DISTRICT OR OTHER POLITICAL SUBDIVISION
ALL in FORMATION IS REQUIRED TO: BE PROVIDED UNLESS IN na AS OPTIONAL! Failure tg provide required information may result in rejection of aoplication
APPLICATION FOR A PLACE ON THE L a i kee ct . GENERAL ELECTION BALLOT
TO: City Secretary/Secretary of Board (name of election)
| request that my name be pleced on the above-named official ballot as a candidate for the officeindicated below,
| CEFICE SOUGHT (Indudeany place number ar other digi nguishing, number, if any ne =
Vlacet FULL C UNEXPIRED

FULL MAME (First, Middle, Last) PRINT AWE AS YOU WANT Hf TO APPEAR ON THE BALLOT"

Checé Reect Nona Roth

vena. RESIDENCE ADDRESS pac Inthude 6 Po. Cox or Rural our if | PUBUC MAILING ADDRESS (Optional) (addres for whech you meceive
i Chart ot neg cere} campaign relatec correspardemce if available.)

— Ba NW Teen fro ST
C STATE Fal cry STATE ral
“as, af " a a
| Burcleson TK | Tw 38] wurcleson TY |Me02¥
PUBLIC EMAIL ADDRESS [Cptional) (address toe ad {Co not leave blank) DATE OF BIRTH VOTER REGISTRATION WUD
vebigh pad robeve Girapalgn calated wriada, if avaiable) HUMBER? (optional)
Ban BAicator |
| TELEPHE eo
i ee «fame _|
FELORY CONVICTION STATUS (Tou MUST check one) LENGTH OF CONTINUOUS RESIDENCE AS OF DATE THIS APPLICATION WAS SWORN
Ge have not been finally convicted of a felony. IM THE STATE OF TEXAS | IP. TERRITORY /DSTRICT/ PRECINCT FROM
| oO lhave heen finally comacted of a felony. butt hae beeen 4S 7 WHICH THE OFFICE i ee IS ELECTED
pardoned of otherwise released from the resulting, earts) | & 4 veers)
disobilties of that falany conviction and | have provided |
proof of this fact with the submission of this apolicatian? — monthts) | __. manth(s}

“Tusing a nickname ad partot your name to appear on the ballot, you are also signing and swearing tothe following statements | furtherswear thet
my nietnarne does not coretitute a slogan or contain a title, ner does it indicate a pol#ical, economic, socal, or religious view or affiliation, | have
been commenly known by this nickname for atleactthree years prior to this election, Ploase review sections 52.031, $2.032 and $2,033 af the Tena

Flection Code regarding the rules for how names may be listed on the official ballet,
Before mé, he undersigned authority, on this cay personally appeared (name of candidate] h 10 no Kee ao wha

being by me here and now duly sworn, upon oath says:
“|. [name of candidate] ri iho Reed af Jonson County, Texas,
being a candidate for the office of fies PF 2 | Swear that | will seppert and defend the Constitution and

laws Of the United States and ofthe shape of Teas. (ama citen of the United States eligibi@ to hold such oflies under We constitution and laws of
| this state. | have not been determined bya final judement ofa court exercising probate jursdiction te be tetally mentally incapacitated or partially
mentally Ineapacitated without the right to wote. | aon giware of the nepotion law, Chapter 573, Government Code. | am aware that | must disclose
any prior felany conviction, and #50 convicted, must provide proof that | have been pardoned or otherwitereleased torn the resulting disabilities of
any such finel felony conviction. | am aware that knowingly providing false information on the application regarding my podsible felony conviction
etatie esnetioutesa Clase A misdemeanor. | further evearthatthe foregoing ctatedeents included in my appication are ip*all things true and correct."

x | Vena ££

SIGNATURE OF CANDIDATE |

i Le ae ol
wor and subserlbed before me this the 6 day of F tb Tit Gorm waa... C72. v_ sone Ke Zz eh .

Pydue

(day) (month) (year) (name of canddate)

riunleter Cath

Printhy

sey Comniseiin Expires
Ootober Go, 2023
eer reer

| TOBE COMPLETED BY FILING OFFICER: THIS APPUCATION IS ACCOMPANIED BY THE REQUIRED FILING FEE (If Applicable) PAID oY:
Lcase en eck L] money onDen Oo CASHIERS CHECK OR O PETITION IN LIEU OF 4 FILING FEE

This document aed 5 filirg fee or a nominating petition of pages received. LI Veter Registration Status Verified
|
& "7 oe a ! <
4 pif jee jf (See Section 1.007) ee
[Date Recelved Date Accepted Sienature of Fillhg Olficer or Designee
On February 23, 2022, Reed received a letter from an attorney representing the
District. The attorney informed Reed that her ballot application had been rejected by
the District due to two errors: (1) in a space meant to identify the “name of election,”
Reed wrote her own name; and (2) although she identified “Place 1” as the office
sought and although the oath made clear she was “a candidate for the office of School
Board Trustee Pl. 1,” nowhere within the four corners of the application did she
identify the District as the governmental body conducting the election. Because the
application was filed on the final day that it could be accepted, the letter asserted that
Reed would not have an opportunity to amend or otherwise tefile her application.
The letter also represented that the District was unable to exercise any discretion
(though District officials admitted that they knew which school district was
conducting the general election) because “[t]o do otherwise would violate Texas
election laws.”

Reed contacted the Secretary of State and asked that office to review her
application to determine if 1t was legally sufficient. On March 18, 2022, Reed received
a responsive email from Melanie Best of the Elections Division. In Best’s opinion,
identifying “Place 1” as the office sought was probably enough to comply with the
law, especially because the oath further declared Reed to be “a candidate for the office
of School Board Trustee Pl. 1.” According to Best, it was obvious that filing the
application with the District was “sufficient to indicate that this 1s an application for

BISD.” Further, concerning the title of the form, ie., the “name of election” blank in
which Reed mistakenly wrote her name, Best said that it 1s merely for “administrative
convenience” and not even required by the Election Code. Indeed, the Secretary of
State’s office has emphasized this fact in its recent training seminars, as evidenced by

the following slide* specifically referenced by Best:

SECRETARY or STATE

2-26

Prescribed by Secretary of State

Section 141.031, Chapters 143 and 144, Texas Election Code
09/2021

APPLICATION FOR A PLACE ON THE BALLOT FOR A GENERAL ELECTION
FOR A CITY, SCHOOL DISTRICT OR OTHER POLITICAL SUBDIVISION

ALLINFORMATION IS REQUIRED TO BE PROVIDED UNLESS INDICATED AS OPTIONAL! Failure to provide required information may result in rejection of application.
APPLICATION FOR A PLACE ON THE Boy 1 GENERAL ELECTION BALLOT

TO: City Secretary/Secretary of Board (name of election)

| request that my name be placed on the above-named official ballot as a candidate for the office indicated below.

(OFFICE SOUGHT (Include any place number or other distinguishing number, if any.) INDICATE TERM Box 3

Box 2 (row L] UNEXPIRED

Box 1: If left blank, not necessarily fatal.

Box 2: Should include distinguishing number, if applicable.
Doesn’t have to be stylized any certain way as long as you
can determine which office applying for.

Box 3: Must be completed if there is another office that has
the same title but doesn’t have place numbers. If it is blank,
but you understand which office the application is for, you
can accept.

2/9/2022 Texas Secretary of State 12

With the rejection of Reed’s application, the only other candidate to file a
timely application for Place 1 on the general election ballot was the incumbent seeking

reelection.

*See Tex. Sec’y of State, Candidate Applications, https://www.sos.texas.gov/
elections/forms/seminat/2021/33rd/candidate-applications-2021.pptx.
When a candidate for the school board is unopposed, the Election Code
ptescribes a means by which the board itself may declare the unopposed candidate
elected without resort to a general election:

The authority responsible for having the official ballot prepared shall

certify in writing that a candidate is unopposed for election to an office

if, were the election held, only the votes cast for that candidate in the

election for that office may be counted. . . . The certification shall be

delivered to the governing body of the political subdivision as soon as
possible after the filing deadlines for placement on the ballot and list of
write-in candidates.
Tex. Elec. Code Ann. § 2.052(a), (b) (emphasis added). Then, “[o]n receipt of the
certification, the governing body of the political subdivision by order or ordinance
shall declare each unopposed candidate elected to the office.” Id § 2.053(a). If such a
declaration 1s made, “the election is not held.” Id. § 2.053(b).

For example, when the candidates for Places 5, 6, and 7 were properly certified
to be unopposed for the general election of May 1, 2021, the Board recetved and
acted upon the certification from the District’s elections administrator at a meeting
conducted March 8, 2021, twenty-four days after the February 12, 2021 deadline for
filing an application for a place on the ballot.°

In this case, the Board did not receive and act upon the elections

administrator’s certification that candidates for Places 1 and 2 were unopposed until a

meeting conducted on March 28, 2022, thirty-eight days after the filing deadline.

“See 2021 Notice of Filing Deadline and 2021 Order of Cancellation,
https://www.burlesonisd.net/Page/1242 (ast visited May 3, 2022).
Indeed, the Board had canceled a meeting originally scheduled for the Monday after
the Friday filing deadline but before Reed had received the letter notifying her of her
application’s rejection. And the March 28 meeting was the first opportunity for Reed
and other interested constituents, including a member of the city council for the City
of Burleson, to publicly address the Board concerning her application and to urge its
members to adopt the Secretary of State’s interpretation of its own form by
reinstating her on the ballot. The Board, with all members present and without
comment, unanimously approved a motion to declare the incumbent Place 1 and
Place 2 members reelected and ordered the cancellation of the May 7 election.
Reed filed her petition for writ of mandamus three days later, asking this court
to compel the District to accept her ballot application.’
III. Standard of Review
The duty to determine whether an application for a place on the ballot
complies with constitutional and statutory requirements 1s ministerial in nature. In
Bell, No. 13-21-00439-CV, 2021 WL 5991046, at *1 (Tex. App.—Corpus Christi—
Edinburg Dec. 17, 2021, orig. proceeding) (mem. op.). Sections of the Election Code

dealing with candidacy for political office are mandatory and are to be strictly

°Video available at https://youtu.be/DuD] fX82g¢A?list=PLEzoM98WA VX
8zbeQxF4qUudku7ht4q5EcX (last visited May 3, 2022).

’The courts of appeals have jurisdiction to issue writs of mandamus “to compel
the performance of any duty tmposed by law in connection with the holding of an
election.” Tex. Elec. Code Ann. § 273.061(a). This court may consider Reed’s petition
because the District 1s “partly situated” in Tarrant County. See zd. § 263.063(b)(2).
enforced and construed to further the legislature’s intent to ensure uniform elections
statewide, to reduce the likelihood of fraud, to protect ballot secrecy, to promote
voter access, and to ensure all legally cast ballots are counted. Tex. Elec. Code Ann.
§§ 1.0015, 1.003(a-1); see In re Dominguez, 621 S.W.3d 899, 904 (Tex. App.—El Paso
2021, orig. proceeding) (per curiam); In re Walker, 595 S.W.3d 841, 842-43 (Tex.
App.—Houston [14th Dist.] 2020, orig. proceeding) (per curiam). In candidate-
eligibility cases, we ate to strictly construe the applicable statutes in favor of eligibility.
Tn re Green Party of Tex., 630 S.W.3d 36, 39 (Tex. 2020) (orig. proceeding). Mandamus
telief is available to compel the acceptance of a statutorily compliant application and
the placement of that candidate’s name on the ballot. See In re Vela, 399 S.W.3d 265,
266 (Tex. App.—San Antonio 2012, orig. proceeding); In re Ducato, 66 S.W.3d 558,
558 (Tex. App.—Fort Worth 2002, orig. proceeding).
IV. Should Reed’s Ballot Application Have Been Rejected?

The general requirements for ballot applications are contained in Section
141.031 of the Texas Election Code. See Tex. Elec. Code Ann. § 141.031. Of
particular importance to Reed’s situation, the statute mandates that an application
must include “the office sought, including any place number or other distinguishing
number.” Id. § 141.031(4)(C). An oath 1s also required, containing the statement: “T,

, of County,

Texas, being a candidate for the office of , sweat

10
that I will support and defend the constitution and laws of the United States and of
the State of Texas” Id. § 141.031 (a)(4)(K).

The problem is determining what constitutes an identification of “the office
sought.” A related issue is whether we should view the ballot application requirements
with some measure of common sense—in other words, is there enough contained in
the application for a person of modest intelligence to, contextually, comprehend the
information conveyed by the applicant? We believe that, in Reed’s case, the “office
sought” should have been clear to the elections administrator for the District.

To be sure, there is a line of authority holding that the ballot application statute
is “mandatory” and that “strict compliance” with its terms 1s required. See, e.g, Wallace
v. Howell, 707 S.W.2d 876, 877 (Tex. 1986) (orig. proceeding) (holding statutory
mandates should be strictly construed); Iz 7 Gibson, 960 SW.2d 418, 421 (Tex.
App.—Waco 1998, orig. proceeding) (same); Escobar v. Sutherland, 917 S.W.2d 399, 404
(Tex. App.—El Paso 1996, orig. proceeding) (same). But later decisions have
emphasized the tmportance of candidate access and voter choice. See In re Francs, 186
S.W.3d 534, 542 (Tex. 2006) (orig. proceeding) (“As we have noted many times in
recent years, provisions that restrict the right to hold office must be strictly construed
against ineligibility.”); Davis v. Taylor, 930 S.W.2d 581, 583 (Tex. 1996) (orig.
proceeding) (construing laws “broadly in favor of eligibility of interest 1n access to the

ballot’). Most recently, the Supreme Court of Texas has stated that the ballot access

11
statute should be interpreted “with a candidate’s access to the ballot in mind.” Green
Party of Tex., 630 S.W.3d at 39.

With this in mind, we see no contradiction between applying the ballot
application mandates of Section 141.031 while simultaneously interpreting the law in a
manner that favors the objective of greater ballot access. Here, no reasonable
petson—even one who 1s not in the position of the District’s elections
administrator—when reviewing Reed’s application could have misunderstood what
office she was seeking. First, 1t was unreasonable for the District to rely on Reed’s
misplacement of her own name in the “name of election” blank at the top of the
application as a reason to reject the application. As the Secretary of State’s training
materials make clear, even leaving that blank empty is “not necessarily fatal.”*® Indeed,
the District has not told us what mandatory statute Reed supposedly violated by

mistakenly filling in that blank with her name. The name of the election 1s not the

‘The District argues that we ate not bound by the conclusions reached in the
Secretary of State’s email. We agree that we are not. But we are bound by the Election
Code, and we do agree with the Secretary of State that the Election Code does not
require the title of the form to be filled out 1n an error-free manner—or even at all. In
any event, the Election Code mandates that the Secretary of State provide “a
standardized training program and materials for county election officers.” Tex. Elec.
Code Ann. § 31.126(b). Further, we may take judicial notice of the training materials
contained on the website of the Secretary of State. See Avery v. LPP Mortgage, Ltd., No.
01-14-01007-CV, 2015 WL 6550774, at *3 (Tex. App.—Houston [1st Dist.] Oct. 29,
2015, no pet.) (mem. op.) (taking judicial notice of records and information contained
on government website). Finally, although not binding, we find persuasive a reasoned
interpretation of a statute by an official of the executive branch. See TLL. ». Cook
Children’s Med. Cir, 607 S.W.3d 9, 33 n.16 (Tex. App.—Fort Worth 2020, pet. denied),
cert. denied, 141 S. Ct. 1069 (2021).

12
“office sought” mentioned in the Election Code. See Tex. Elec. Code Ann.
§ 141.031(a)(4)(C). And it is simply not conceivable that the District was fooled into
thinking (as their attorneys have implied to Reed and to this court) that she was really
applying to be on the ballot in the “Nona Reed” general election.

Second, and relatedly, the District implausibly tnsists that Section 141.031
required the rejection of Reed’s application because its “four corners” never identified
the political subdivision conducting the general election for which she sought ballot
access and that the surrounding circumstances of Reed’s in-person application could
not be considered. Reed timely presented herself as a candidate in the administration
offices of the District, as she was instructed to do by the notice of filing deadline
published by the District.” She received, filled out, swore to, and filed her application at
the administration offices of the District and in the presence of the assistant elections
administrator for the District. She identified herself by office sought and took the oath
as a candidate for Place 1, which was one of the only two places on the Board
scheduled for the general election by the Daustrict. And the assistant elections
administrator for the District notarized her oath as a candidate for that office. The idea
that Reed went to all this trouble to file an application for a general election to be

conducted for some other political subdivision is simply untenable.

"See 2022 Notice of Election Deadline to File for Place on Ballot,
https://www.burlesonisd.net/Page/1242 (last visited May 3, 2022).

13
In so concluding, we find persuasive the common-sense approach of our sister
court in El Paso in Yapor v. McConnell, 597 SW.2d 555 (Tex. App.—El Paso 1980,
orig. proceeding). In Yapor, the candidate filled out a ballot application but failed to fill
in three blanks—his name, his county of residence, and the office he sought—on the
statutorily required “loyalty affidavit.” Id. at 556. The candidate properly executed the
oath, however, and despite the omissions, the court held that the application
conformed to the “requirements and intended purpose” of the statute because the
information missing from the empty blanks could be gleaned from other parts of the
application. Id. Accordingly, the court granted mandamus relief by ordering the
candidate’s name placed on the ballot. Id.

The District argues that Yapor 1s distinguishable because 1n that case the
missing information was ascertainable from the application itself, whereas in Reed’s
situation, the District’s identity as the political subdivision conducting the general
election is missing entirely from Reed’s application. We disagree, however, that
Section 141.031 forecloses common-sense consideration of reasonable inferences
from the circumstances surrounding the filing of an application. And the Supreme
Court of Texas has rejected such an absolutist “four corners” approach.

For example, in In re Barnett, the supreme court considered a ballot application
that omitted the candidate’s address. 207 S.W.3d 326, 327 (Tex. 2006) (orig.
ptoceeding). The supreme court held that such an omission was not fatal: the

applicant’s residence (specifically, his address 1n the stngle-member district for which

14
he wanted to run) could be ascertained by “confirming [his] residency based upon
information in his application and undisputed public records.” Id. at 328 (emphasis added).
Not only may information from sources outside its “four corners” be utilized to
complete an application but also the court clearly rejected such a per se exclusionary
tule.”

Similarly, our sister court 1n San Antonio considered the ballot application of a
candidate for Justice of the Peace, Precinct 4, Place 1; the application omitted
“Place 1” as the office sought. See In re Garda, No. 04-22-00016-CV, 2022 WL
130287, at *1 (Tex. App.—San Antonio Jan. 14, 2022, orig. proceeding) (mem. op.).
The court found the evidence to be undisputed that “Place 2” had been recently
abolished; accordingly, it would be irrational to assume confusion on the part of party
officials construing the candidate’s ballot application. See zd. at *3. Place 2 simply did
not exist anymore. Id. “[A] rejection of [relator’s] application based on the omission of

the Place 1 designation . . . both denfies] her access to the ballot and silence[s] the

voices of the voters who signed a petition in support of her place on the ballot.” Id. at

The Barnett opinion helpfully reprinted the candidate’s ballot application in an
appendix. 207 S.W.3d at 329. Interestingly, the candidate filled in the “office sought”
blank in the same way as did Reed: writing only “Trustee 6” without identifying the
Dallas Independent School District as the political subdivision or its Board of
Trustees as the governing body. We note this not for its legal significance (that part of
the application was not at issue in Barneff) but because of its zwsignificance. It
underscores the fact that a reasonable elections administrator, when handed such an
application, would react with common sense (as did the DISD official in Barnetf) and
ptesume that an applicant for a place on the school board who appeared before
school district administration was seeking an office on that district’s school board.

15
*4; see also Francis, 186 S.W.3d at 542 (“The public interest 1s best served when public
offices are decided by fair and vigorous elections, not technicalities leading to
default.”); In re Bel, 91 S.W.3d 784, 788 (Tex. 2002) (orig. proceeding) (“We therefore
conclude that omitting the signers’ city of residence from [relator’s| petition [did] not
undermine the purpose behind the Election Code’s ‘residence address’ requirement||
because there [was] enough other information to allow voting-eligibility verification
for this particular election.”’).

In support of its “four corners” approach, the District relies on a subsequent
decision of the El Paso Court of Appeals. See In re Armendariz, 245 S.W.3d 92, 95
(Tex. App.—El Paso 2008, orig. proceeding). In Armendariz, the candidate submitted
an application and a petition, both of which indicated his desire to run for “Presidio
County Commissioner Precinct #2.” Id. at 93. Unfortunately, the office of County
Commussioner Precinct 2 was not up for election, and nowhere in his application did
he demonstrate any intent to run for the office that was the subject of the upcoming
election—Presidio County Commissioner Precinct 1. Id Although a reasonable
inference existed from the surrounding circumstances that the candidate was simply
mistaken in identifying the office sought and actually sought ballot access for
Precinct 1, an equally reasonable inference existed that he truly sought ballot access
for Precinct 2 but was mistaken as to when the office was subject to election. See zd.

Absent any means of identifying the mistake, the error was fatal. See zd.

16
Here, there can be no such confusion. As noted above, the circumstances
surrounding Reed’s filing of her application admit of no other interpretation but that
she sought ballot access for an office for which the District—and no other political
subdivision—intended to conduct a general election. She received, filled out, swore
to, and filed her application at the administration offices and in the presence of the
assistant elections administrator for the District. And in notarizing her oath, the same
assistant elections administrator confirmed that Reed sought ballot access for a place
on a board of trustees that just happened to match one of the places subject to the
upcoming May 7 general election, the administration of which was expressly included
within her job title. In the letter reyecting Reed’s application, even the District’s own
counsel admitted that District officials “considered accepting [Reed’s|] application,
interpreting that [she had] intended to file in the Burleson ISD General Election
based on all the circumstances, including the fact [that she had] submitted the
application to Burleson ISD officials.” Such an interpretation is the only reasonable
one under the circumstances.

But the District chose to behave unreasonably, insisting that the ballot
application process is really a “gotcha” trap, rather than one designed by the
legislature to achieve a “just and reasonable result.” See Be/, 91 S.W.3d at 785
(applying language of Code Construction Act to residence-disclosure sections of
Election Code). In sum, no reasonable elections administrator for the District could

have notarized Reed’s oath declaring her candidacy for “the office of School Board

17
Trustee Pl. 1” under the surrounding circumstances and lawfully rejected her
application. Accordingly, the District wrongfully rejected Reed’s application and
excluded her from the May 7 ballot and thereby unlawfully certified the incumbent
Place 1 member unopposed for reelection, declared him officially reelected, and
canceled the May 7 general election.

V.Is There a Remedy?

The District argues that Reed has filed her petition for mandamus far too late
to appear on the ballot for the May 7 election. We agree.'! The time for mailing
absentee ballots began on March 23:

[T]he balloting materials for a voter who indicates on the application for

a ballot to be voted by mail or the federal postcard application that the

voter is eligible to vote early by mail as a consequence of the voter’s

being outside the United States shall be mailed on or before the later of

the 45th day before election day or the seventh calendar day after the
date the clerk receives the application.

Tex. Elec. Code Ann. § 86.004(b). And the law disfavors judicial interference with an
election that is already in progress. See Pole v. Davidson, 196 S.W.2d 632, 634 (Tex.
1946) (orig. proceeding) (mooting appeal in ballot challenge when it would be “utterly
impossible” to dispose of the case in time to print applicant’s name on the ballot in
time for absentee balloting to begin). Because the ballots for the May 7, 2022 election
were due to be sent out before Reed’s challenge to her ballot reyectton—indeed, even

before the Board received and acted on the certification of unopposed candidates by

"This patticular mootness argument of the District is the only one with which
we agtee.

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declaring their reelection and canceling the general election—this court is powerless
to order her to be placed on the general election ballot. See In re Crenshaw, No. 05-17-
00330-CV, 2017 WL 1292013, at *1 (Tex. App.—Dallas Apr. 7, 2017, orig.
proceeding) (mem. op.) (declining to order city secretary to place relator’s name on
ballot when absentee balloting had already begun).

Even if the law allowed our intervention in this manner, there 1s no pending
general election with which to interfere; the May 7 general election has been canceled.
The District, without legal justification but relying solely upon its own determination
that Reed’s ballot application was irredeemably defective, simply has declared the
“unopposed” incumbent candidate for Place 1 “reelected” and thereby rendered the
May 7 general election unnecessary. See Tex. Elec. Code Ann. § 2.053(a), (b).

Nevertheless, Reed is not without a remedy. Section 273.081 of the Election
Code authorizes “appropriate injunctive relief’ for a person “who is being harmed or
is in danger of being harmed by a violation or threatened violation of this code” in
order “to prevent the violation from continuing or occurring.” See zd. § 273.081.
Indeed, we are tasked—when exercising equitable powers to resolve Election Code
violations—to “balance competing equities.” In re Gamble, 71 S.W.3d 313, 317 (Tex.
2002) (orig. proceeding). This balancing must, by necessity in Reed’s case, rely on
some amount of creativity. Because the District’s rejection of Reed’s ballot application
violated the ballot access provisions of the code and continues to unlawfully harm

Reed by depriving her of the ballot access guaranteed thereby, we conclude that the

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District’s certification of the incumbent Place 1 candidate as unopposed, its
declaration of his official reelection, and tts cancellation of the May 7 general election
are all actions subject to the injunctive relief contemplated by Section 273.081.
Moreover, under these unique circumstances, because the District failed to
conduct a general election for the next term for Place 1 on the Board, the
contemplated injunction will result in a vacancy at the end of its current term. See Dzay
v. Valadez, 520 SW.2d 458, 459-60 (Tex. App.—Corpus Christt-Edinburg 1975, no
writ) (holding that school district’s failure to elect a successor to board of trustees
created vacancy subject to appointment pursuant to Education Code); Clark v. Wornell,
65 S.W.2d 350, 351 (Tex. App.—Waco 1933, no writ) (holding that rural school
district’s failure to elect a successor to an incumbent board member at the general
election created a vacancy subject to appointment in accordance with statute); Tom v.
Kkepper, 172 SW. 721, 723 (Tex. App.—El Paso 1915, writ rePd) (holding that the
failure to elect county commissioner at general election resulted in vacancy subject to
statutory appointment). Section 11.060(c) of the Texas Education Code provides for
the remedy of a special election to fill the vacancy. See Tex. Educ. Code Ann.
§ 11.060(c). Although the Education Code also empowers the Board to appoint
someone to fill that vacancy, see zd. § 11.060(a), (b), we are mindful that the Board’s
ability to fill Place 1 by appointment may merely perpetuate the injury already suffered

by Reed and deprive her of the candidacy for which she legally qualified. Specifically,

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the District ignored its constituents’? and effectively “silence[d] the voices of the
voters” by unlawfully stripping from Reed her right to appear on the ballot and
canceling the May 7 election. See Gania, 2022 WL 130287, at *4. Purther, the District
ignored the training from the Secretary of State’s office’? (referred to above)—training
that clarifies the ballot application requirements of the Election Code and
demonstrates that Reed’s application complies with those requirements. We therefore
have no confidence that the Board will not simply appoint the incumbent Place 1
member in a bid to achieve through quasi-legal means what the District attempted to
do through its rejection of Reed’s ballot application.

Accordingly, we enjoin the District from certifying the incumbent Place 1
candidate as unopposed for reelection and from declaring him reelected to a new term
and further order the District to conduct a special election to fill the vacancy resulting
therefrom upon the contemplated expiration of the current Place 1 term and at the

eatliest opportunity afforded by and 1n accordance with the relevant provisions of the

"Six members of the public (including Reed and a member of the City Council
of the City of Burleson) stood up at the BISD Board of Trustees meeting on
March 28, 2022, and urged the Board to hold the general election on May 7. Board of
Trustees, Burleson ISD, Official Minutes of March 28, 2022, https://meetings.
boardbook.org/Documents/CustomMinutesForMeeting/13842?meeting= 518098.

The first speaker at the Board meeting, in endorsing Reed’s placement on the
ballot and the non-cancellation of the May 7 election, specifically referred to this
training and BISD’s participation in it. See Video of March 28, 2022 BISD Board
Meeting, https://youtu.be/DuD]fX82g¢APlist=PLEzoM98WAV X8zbeQxE4qUudk
u7ht4q5EcX (beginning at around 2:20).

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Texas Election Code.'* To effectuate this remedy, the applications of both Reed and
the incumbent Place 1 candidate are ordered “grandfathered” as having already been
filed for the special election unless expressly withdrawn in accordance with the
Election Code. Finally, we observe that pursuant to Article XVI, Section 17 of the
Texas Constitution, the incumbent Place 1 member will “hold over” in office until
such time as the results of the special election produce a qualified successor for
Place 1. See Tex. Const. art. XVI, § 17 (AJIl officers of this State shall continue to
perform the duties of their offices until their successors shall be duly qualified.”); see
Plains Common Consol. Sch. Dist. No. 1 of Yoakum Cnty. v. Hayhurst, 122 S.W.2d 322, 326
(Tex. App.—Amarillo 1938, no writ) (“The purpose of the constitutional and
statutory provisions requiring officers to hold over until their successors have
qualified is to prevent vacancies in office and a consequent cessation of the functions
of government. The constitutional provision is self-executing, and, like the simular
provisions in the statutes, it 1s mandatory.” (quoting 34 Tex. Jur. 370)); Maddox v.

York, 54 SW. 24, 25 (Tex. App.—Fort Worth 1899)’ (“Only the failure to elect or

“We also reject the District’s argument that the fifty-day deadline tn Election
Code Section 141.034(a) bars Reed from seeking relief. By tts very terms, that deadline
applies to challenges to an application, not legal action pursued against a political
subdivision because of its rejection of an application. Tex. Elec. Code Ann.
§ 141.034(a); see Escobar, 917 S.W.2d at 410 (“[W]e conclude that [Section] 141.034
implicates a judicial challenge brought by a contestant.”).

Although not designated as such tn the original West publication of the
opinion, Maddox 1s an opinion from this court. See Dobkins v. Reece, 17 S.W.2d 81, 82

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appoint a successor would entitle the incumbent to so remain in office, in order to
perform its duties as enjoined in the constitution.”), aff'd, 55 S.W. 1133 (Tex. 1900).
VI. CONCLUSION

Having found that Nona Reed has been harmed by the District’s unlawful
rejection of her ballot application, we conditionally grant the petition for writ of
mandamus. We enjoin the District from certifying the incumbent Place 1 candidate as
unopposed for reelection and declaring him reelected to a new term and further order
the District to conduct a special election to fill the vacancy resulting therefrom in
accordance with this opinion. A writ will issue only if the District fails to comply with
these directives.

/s/ Wade Birdwell

Wade Birdwell
Justice

Delivered: May 4, 2022

(Tex. App.—Fort Worth 1929, writ rePd) (referring to Maddox as an opinion “by this

court’).

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