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
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
Combined Opinion