Carlos Cascos, in His Official Capacity as Secretary of State of Texas v. Tarrant County Democratic Party Steve Maxwell, in His Official Capacity as Chair of the Tarrant County Democratic Party Texas Democratic Party Gilberto Hinojosa, in His Official Capacity as Chair of the Texas Democratic Party

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FILED 14-0470 10/30/2015 1:41:37 PM tex-7619469 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK No. 14-0470 IN THE SUPREME COURT OF TEXAS NANDITA BERRY, in her official capacity as Secretary of State of Texas, Petitioner/Cross-Respondent, vs. TARRANT COUNTY DEMOCRATIC PARTY, STEVE MAXWELL, in his official capacity as Chair of the Tarrant County Democratic Party, TEXAS DEMOCRATIC PARTY, and GILBERTO HINOJOSA, in his official capacity as Chair of the Texas Democratic Party, Respondents/Cross-Petitioners. ON PETITION FOR REVIEW FROM THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS MOTION FOR REHEARING Renea Hicks Chad W. Dunn LAW OFFICE OF MAX RENEA HICKS BRAZIL & DUNN LLP State Bar No. 09580400 State Bar No. 24036507 101 West 6th Street, Suite 504 4201 Cypress Creek Pkwy., Ste. 530 Austin, Texas 78701-2934 Houston, Texas 77068 Tel: (512) 480-8231 Tel: (281) 580-6310 Fax: (512) 480-9105 Fax: (281) 580-6232 rhicks@reneahicks.com chad@brazilanddunn.com Attorney for Tarrant County Attorney for Texas Democratic Democratic Party Respondents Party Respondents TABLE OF CONTENTS Index of Authorities ........................................................................................ii Rehearing Argument .......................................................................................1 The Court should hold on rehearing that, to the extent he had discretion as to the Brimer fee recovery requests, the Secretary abused his discretion. Conclusion ......................................................................................................3 Certificate of Compliance ...............................................................................5 Certificate of Service.......................................................................................5 i INDEX OF AUTHORITIES Cases Rodriguez v. Service Lloyd’s Ins. Co., 997 S.W.2d 248 (Tex. 1999)....................3 Texas Coast Utilities Coalition v. RRC, 423 S.W.3d 355 (Tex. 2014) ................3 Rules and administrative references 1 Tex. Admin. Code § 81.134(c) (2003) ..........................................................2 28 Tex. Reg. 8218 (Sept. 26, 2003) .................................................................2 ii MOTION FOR REHEARING The political party respondents move for rehearing of the Court’s per curiam decision of October 30, 2015. The grounds follow. The political party respondents seek rehearing as to the decision on the merits, found at pages 7-14 of the slip opinion of October 30, 2015. The Court on rehearing should hold that, to the extent the Secretary had discretion in allowing or disallowing the requested fee reimbursements in the Brimer matter, he abused that discretion. The Court’s decision leaves the chief election officer of Texas completely unaccountable in administration of a duty where even-handedness and accountability must be paramount. The upshot of the ruling is that there is no legal principle at all governing the Secretary in his decisions about when and whether to reimburse political party primary expenses. Under the ruling, the Secretary is not required to provide any explanation for a reimbursement decision, whether it be for or against a requested reimbursement. He now is authorized to treat two factually indistinguishable reimbursement requests in diametrically opposed ways. And whether he took such irreconcilable positions based on whim, partisan favoritism, personal dislikes, or principled reasoning is of no legal consequence whatever. No 1 explanation is required, and what he says in any individual situation is the law, even if there is no legal rationale underpinning it. This decision of the Court cannot be reconciled with the language of the administrative rule at issue, with the explicit basis for that rule, or with settled administrative law principles. The rule’s language. The 2003 rule—Rule 81.134—is the Secretary’s own rule. He formulated it, and he is bound by it. It directs that he “shall” provide attorney fee reimbursements if the conditions otherwise warrant it. The Court’s ruling effectively eliminates the “shall.” In its stead, the phrase “may or may not, as he wishes but need not explain” is substituted. The reason for the rule. The reason for the rule was the opposite of the principle established in the Court’s ruling. The Secretary explained that it was being promulgated so that there would henceforth be “uniformity” in the Secretary’s application, interpretation, and operation of the Election Code provisions it was implementing. 28 Tex. Reg. 8218 (Sept. 26, 2003). After the Court’s ruling, “uniformity” has nothing to do with applying the rule. After the rule’s 2003 promulgation, the Secretary ruled one way in 2006 on the factual situation forming the basis for this case’s fee recovery claim. In 2008—in the Brimer fee recovery request—he ruled in precisely the opposite way. There had 2 been no legal changes at all in the relevant statutes or rules between 2006 and 2008. The only thing that changed were the individuals administering them—and the reimbursement decisions they made. Permitting this approach—allowing the chief election officer of the State to rule one way one election cycle and precisely the opposite the next, without any intervening change in the governing legal rules—is the opposite of using the rule to achieve uniformity. Conflicting administrative law principles. The Court has long disapproved of Texas agencies engaging in ad hoc rulemaking. See Rodriguez v. Service Lloyd’s Ins. Co., 997 S.W.2d 248, 255 (Tex. 1999). And it has explained that deference is owed only to “reasonable” agency interpretations of statutes and rules within their purview. See Texas Coast Utilities Coalition v. RRC, 423 S.W.3d 355, 363 n.16 (Tex. 2014). An opaque, unexplained decision to use a rule one way at one time and precisely the opposite the next is ad hoc rulemaking of the most blatant sort. And to make the second, different decision without any explanation whatever of the reason for the 180-degree about-face is not a “reasonable” agency interpretation when the decision is unaccompanied by any reasoning. CONCLUSION Rehearing should be granted. The Court should vacate its decision. It then should deny the Secretary’s petition for review. Alternatively, if the Secretary’s 3 petition for review is granted, the Court should affirm the judgment of the court of appeals on the fee recovery claim. Respectfully submitted, LAW OFFICE OF MAX RENEA HICKS /s/ Renea Hicks Renea Hicks - 09580400 Attorney at Law 101 West 6th Street Austin, Texas 78701 Telephone: (512) 480-8231 Facsimile: (512) 480-9105 rhicks@renea-hicks.com Attorney for Tarrant County Democratic Party Respondents BRAZIL & DUNN, LLP /s/ Chad Dunn Chad W. Dunn - 24036507 K. Scott Brazil - 02934050 4201 Cypress Creek Parkway, Suite 530 Houston, Texas 77068 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 chad@brazilanddunn.com scott@brazilanddunn.com Attorney for Texas Democratic Party Respondents 4 CERTIFICATE OF COMPLIANCE Based on the word count provided by the computer program used to prepare this response, counsel states that the number of words in the pertinent pages of the document is 668. /s/ Renea Hicks Renea Hicks CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Motion for Rehearing has been served through the electronic filing system on the following counsel of record on October 30, 2015: Dustin M. Howell ASSISTANT SOLICITOR GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 dustin.howell@texasattorneygeneral.gov /s/ Renea Hicks Renea Hicks 5