Denied and Opinion Filed February 28, 2017
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00197-CV
IN RE KRISTI PENA, Relator
Original Proceeding from the City of Irving
Dallas County, Texas
MEMORANDUM OPINION
Before Justices Francis, Evans, and Whitehill
Opinion by Justice Francis
Before the Court is relator’s February 24, 2017 first amended emergency petition for writ
of mandamus in which she complains of the Irving City Secretary’s decision to reject relator’s
application and petition to appear on the May 6, 2017 general election ballot for the office of
Irving mayor. The City Secretary rejected the application and petition because she was unable to
validate that five people who signed the petition were registered voters in Irving. Without
validating at least three of the five signatures, relator did not have the required thirty-six
signatures to be placed on the ballot. Relator attached affidavits to the petition for writ of
mandamus showing the five people at issue were registered voters in Irving when they signed the
petition. Relator argues those individuals should be counted and validated. Relator seeks
mandamus relief to direct the City Secretary to accept relator’s application and petition, to certify
her name on the ballot, and to redraw for ballot positions.
This Court has jurisdiction to consider relator’s petition and 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.” TEX. ELEC. CODE
ANN. § 273.061 (West 2010). To be entitled to mandamus relief, relator must establish (1) a
legal duty to perform a non-discretionary act, (2) a demand for performance, and (3) a refusal to
perform the non-discretionary act. In re Cullar, 320 S.W.3d 560, 563–64 (Tex. App.—Dallas
2010, orig. proceeding). This Court may not resolve factual disputes in a mandamus proceeding.
Id. Further, “[a]ny constitutional or statutory provision which restricts the right to hold office
must be strictly construed against ineligibility.” Id. (quoting Wentworth v. Meyer, 839 S.W.2d
766, 767 (Tex. 1992) (orig. proceeding)).
Relator contends the affidavits submitted with the petition for mandamus conclusively
demonstrate that relator met the requirements to be placed on the ballot and the City Secretary
erroneously rejected relator’s application and petition. But the record provided by relator does
not show that the City Secretary was presented with the affidavits prior to relator filing this
original proceeding. The mandamus record also does not show relator asked the City Secretary
to accept the application and petition and to certify her name on the ballot in light of the
affidavits and the City Secretary refused.
In a letter to the Irving City Attorney dated February 22, 2017, relator’s counsel
demanded that the City Secretary accept relator’s application and put relator on the ballot. The
letter has no attachments or enclosures, however, and the affidavits on which relator relies were
signed the day after relator’s counsel sent the letter. The letter does not support relator’s
contentions that he demanded action from the City Secretary or that the City Secretary refused
the demand in the face of affidavit evidence confirming the validity of the challenged signature.
See, e.g., In re Cercone, 323 S.W.3d 293, 297 (Tex. App.—Dallas 2010, no pet.) (holding letter
sent challenging signatures on petition did not constitute a demand to not certify the real party in
interest as a candidate).
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Relator’s failure to provide this Court proof that relator provided the City Secretary the
affidavits, requested the City Secretary to accept the application and certify relator for the ballot
in light of the affidavit testimony, and the City Secretary refused to comply, is fatal to her
petition. See In re Cullar, 320 S.W.3d at 566 (“The ‘appropriate authority’ cannot make an
administrative determination of whether the public record conclusively establishes ineligibility
until after he has been presented with such records.”); see also In re Osborn, No. 03-13-00272-
CV, 2013 WL 9797298, at *2 (Tex. App.—Austin Apr. 30, 2013, orig. proceeding) (denying
mandamus and holding that the court could not conclude that official failed to perform a duty
imposed by law where relator failed to show that he presented public records purportedly
supporting relator’s arguments to the election official and did not show he demanded the official
to declare the candidate ineligible and the official refused to comply).
Although the City Secretary would have a non-discretionary duty to accept relator’s
application in light of uncontroverted affidavit testimony confirming the voter status of the
challenged signatures, that duty will not arise until relator presents the evidence to the City
Secretary and asks the City Secretary to accept the application and petition, place relator on the
ballot, and redraw for ballot position. See In re Cullar, 320 S.W.3d at 566; see also TEX. ELEC.
CODE ANN. § 145.003(f),(g) (West 2010).
Accordingly, we deny relator’s petition for writ of mandamus
/Molly Francis/
MOLLY FRANCIS
JUSTICE
170197F.P05
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