1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09
- 13
- 00 115
- CV



### _________________ IN RE MARCELINO RODRIGUEZ, DONNA JEAN FORGAS, AND LINDA MARIE WILTZ GILMORE

________________________________________________________________________ Original Proceeding

________________________________________________________________________ OPINION Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz Gilmore filed a motion to enforce the writ of mandamus issued by this Court on March 18,
2013. The writ compelled the performance of a duty imposed by law in connection with the holding of the May 2013 election of the Board of Trustees of the Beaumont Independent School District. In re Rodriguez , 397 S.W.3d 817, 82 1

- 2 2 (Tex. App.

— Beaumont 2013, orig. proceeding); s ee Tex. Elec. Code Ann. § 273.061 (West 2010). Our opinion noted that “neither party has cited any authority for cancelling the M ay election and conducti ng the election on another date.” In re Rodriguez , 397 S.W.3d at 822. The case BISD cited , in a rela ted matter, as support2 for the exercise of equitable powers sta ted that “ [g] enerally, courts will not exercise equitable powers when their exercise may delay the election.” See In re Gamble , 71 S.W.3d 313, 318 (Tex. 2002). In ex plaining the writ of mandamus , this Court’s opinion also noted that “ [s] chool districts are limited by state statute to holding elections on certain election dates and in conjunction with certain other entities. ” In re Rodriguez , 397 S.W.3d at 822; Tex. Edu c . Code Ann. § 11.0581 (West 2012).
A ccordingly, we granted equitable relief from the three month and the ninety day statutory deadlines in the Election Code and the Edu c ation Code. In re Rodriguez , 397 S.W.3d at 82 2

- 2 3; Tex. Elec. Code Ann

. § 276.006 (West 2010 ); Tex. Educ. Code Ann. § 11.052(i) (West 2012 ). We held that all positions on the Board must be fil l ed in the May election because the Board failed to provide for the trustees in office to serve out the remainder of their terms following redistricting. In re Rodriguez , 397 S.W.3d at 822

- 23

. The opinion provided that “the election scheduled for May 1 1, 2013, is to be conducted using the redistricting map adopted February 21, 2013[]” and ordered the respondent “to accept relators’ applications and to place their names on the ballot, or to otherwise certify the election of unopposed candidates to the ex tent authorized by the Election Code and the Education Code.” Id. at 823; see also In re Gamble , 71 S.W.3d at 318. B ecause3 when we issued our opinion the May election required federal preclearance, we also explained : “We presume the Board will comply with federal preclearance requirements for the redistricting plan, and seek expedited review if it has not already done so. ” In re Rodriguez , 397 S.W.3d at 822. On April 3, 2013, BISD certified the unopposed candidates , including the relators, for the election scheduled to be held on May 11, 2013. As part of the federal preclearance process, BISD filed a declaratory judgment action in the United States District Court for the District of Columbia , and sought preclearance under Section 5 of the Voting Rights Act. See 42 U.S.C.S. § 1973c. On April 23, 2013, the federal district court enjoined BISD from conducting the election scheduled to be held on May 11, 2013. Th e Board cancelled the May election. See Beaumont Indep. Sch. Dist. v. Rodriguez , No. 13

- 401, 2013 U.S. Dist. LEXIS 66724, at *4 (D.D.C. May 10, 2013). On May 10, 2013, the federal district court dismissed as moot BISD’s “petition for a declaratory judgment granting preclearance for ‘those voting changes occasioned by the decision of the Ninth Court of Appeals[.]’” Id. at *7. In response to the Board’s cancellation of the May election and scheduling of a November election, Rodriguez, For g as, and Gilmore sued BISD and five trustees of the Board in an action filed in the 172nd District Court of Jefferson4 County, Texas. According to an exhibit attached to BISD’s supplemental brief in this mandamus proceeding, the relators ’ petition in state district court challenges BISD’s cancellation of the May 2013 election , and seek s to enjoin BISD’s new redistricting plan and BISD’s proposed November 2013 election

. The case was removed to federal court, but on May 31, 2013, the federal district court held it lacked subject matter jurisdiction and remanded the case to state court. B o th parties have sought affirmative relief in courts where their claims are still pending : BISD, in the United States District Court for the District of Columbia, and relators, in the 172nd District Court of Jefferson County, Texas. While BISD’s precleara nce request was pending, the Supreme Court of the United States declared unconstitutional section 4(b) of the Voting Rights Act. Shelby Cnty ., Alabama v. Holder , 133 S.Ct

. 2612, 2631, 186 L.Ed. 2d 651, 81 U.S.L.W. 4572 (2013); see also 42 U.S.C.S. § 1973b(b). The parties have provided documents to this Court indicating that t he United States District Court for the District of Columbia has before it BISD’s second amended complaint, the Rodriguez parties’ motion to dismiss, a motion to int ervene filed by persons claiming an interest in the litigation, and a motion for entry of an election order. The fed eral court has not yet decided the e ffect of Shelby County on the proceeding pending in that court.5 Under these circumstances, the r elators ask this Court to enforce our March
2013 writ of mandamus

. The writ presumed and addressed a May 2013 election, which did not occur. See In re Rodriguez , 397 S.W.3d at 823; see generally In re
Uresti , 377 S.W.3d 696, 696 (Tex. 2012) ( addressing mootness doctrine ). In our earlier opinion, we ordered the Board to use a map that set out single member districts because the Department of Justice ha d objected to a redistricting plan setting two at

- large positions. In re Rodriguez , 397 S.W.3d at 821

. BISD’ s response to r elators’ motion to enforce in this proceeding states as follows:
If Shelby County means that the preclearance objections to BISD’ s 5

- 2 plan should be ignored, ordering an election under the Map 7b in the face of election results that requir ed BISD to abandon single

- member districts in favor of a 5

- 2 plan is improper. The correct remedy under that scenario would be to direct BISD to conduct an election under a 5

- 2 plan leaving BISD with its statutory discretion to select such a plan being min dful of the federal objection to the 5

- 2 plan originally adopted. (footnote omitted). In response to this argument and upon this Court’s request that they specifically identify the mandamus relief they are currently seeking from this Court as alternative relief , the r elators ask this Court to “order an election, set candidate filing deadlines and require all positions open for election under a 5/2 plan, specifically under Plan 5F.” BISD argues that it has the authority to schedule the election for November , that the 5

- 2 and 7b plans are not defensible , and that “this6 Court should not disrupt BISD’s decision to reschedule the enjoined election for November since complying with the statute is no w im possible.” “[A] court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election[.]” Tex. Elec. Code Ann. § 273.061. But a court should avoid a premature adjudication of an issue. See generally Robinson v. Parker , 353 S.W.3d 753, 75 6 (Tex. 2011) ( C ourt s should avoid “advising what the law would be on a hypothetical set of facts.”); see also McAllen Med. Ctr., Inc. v. Cortez , 66 S.W.3d 227, 232 (Tex. 2001) ( discussing advisory opinions)

. The parties ask this Court to make decisions in this proceeding about a potential November 2013 election, but requests and challenges to a November 2013 election are pending in federal and state district courts, and the parties cannot predict when those cases will be resolved. R elators ’ issues relat e to an election on some fut u r e date , not a past May 2013 date

. As the parties’ claims remain subject to on - going litigation in both federal and state courts , we refrain from exercising any mandamus authority and do not address the merits of the parties’ cl aims at this time. Accordingly we deny the motion an d dismiss the mandamus petition without prejudice.7 P ETITION DISMISSED

.

PER CURIAM

Submitted on July 1 9, 2013 Opinion Delivered August 1, 2013 Before McKeithen, C.J., Gaultney and Horton, JJ.