## In the Co urt of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00113

- CV

___________________________

Original Proceeding Tarrant County, Texas

Before Sud derth, C.J.; Birdwell an d Walker, JJ. Memorandum Opinion by Justice Birdwell 

### I N RE 

### N ONA 

### R EED 

### , Relator2 MEMORANDUM OPINION
I. Introduction In this original proceeding, Relator Nona Reed seeks mandamus relief requiring
that Real Party in Interest Burleson Independent School Distric t officiall y re c ognize
he r candidacy for Place 1 o n its Board of Trustees by placing her on the official ball ot for the May 7, 2022 g eneral election

. Concluding that Reed failed to qualify as a
candidate due to two er rors on her timely filed application, t he District , th r ough a

un animous vote of the Board, including the incumbent Place 1 member , rejected her
candi dac y , certified the incumbent Place 1 and Place 2 member s un opposed for
reelection , declared the m officially re elected , and cancel ed the May 7 gen eral electi on . B ecause w e agree with the Secretary of State ’ s evaluation that Reed ’ s timely filed application met all statutor y criteria for ballot qualification , we hold that the Di strict wrongfull y exclud ed Reed from the May 7 ballot a nd thereby unlawfu lly certifie d th e incumben t 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 th e District ’ s contested Place 1 g eneral election as originally schedu led , given the Distric t

ca n not lega l ly declare the incumbent Place 1 member re elected under the circumstances, a vacancy will occur at the end of his current t erm , and
Sectio n 11.060 (c) of the Texas E ducation Code provide s for the remedy of a special
electio n to fill the vacanc y . S e e Tex. Ed uc. Code Ann. § 11.060 (c)

. Accordingly, we grant the petition for writ of mandamus; we enjoin the District from certifying the3 incumbe n t Place 1 member unopp osed for reelection and d eclaring him reelected to a

new term and further order the D istr i ct to con duct a special election to fill the
vacancy resulting from the inevitable expiration of the current Place 1 term at the
earliest opportunity afforded by and in accordance with the relevant provisions of the
Texas Elec tion Code

. II. Backgrou nd
The District “ lies partly in Tarrant C ounty and partly in John s o n C ounty. ”
Baker v. B rown , 165 S.W.2d 522, 522 (Tex. App.

— Fort Worth 1942, no writ). As the governing body of the District , the Board of Trustees consist s of seven members , all
of whom are el ecte d at

- larg e for three

- y ear terms
. 1 Each year, a general election for a t least two places on the Board

— three every third year

— is conducted in May. T his
yea r ’ s gene ral elect ion, scheduled for May 7, 2022, was to have b een for Places 1 and
2

. 2 B ecause the Distr ict covers portio ns of both Tarrant a nd J ohnson Counti es , gener al and s pecial elections for the B oard a re conducted in and admi nistered by both
counties

.

1 We rely on information about the Burleso n ISD Boa rd of Tr ustee s and their posted documents contained in the District ’s w ebsite and located at https://www. burlesonisd.net/domain/28

. We may take judicial notice of information contained on a government al website whet her requested by a party or on our own motion. See City of El Paso v. Fox , 458 S.W. 3d 6 6 , 71

– 72 (Tex . App.

— El Paso 2014, no p et.).

2 Th e District asked us to take judicial no tice of the election calendar, and we do
so. See Tex. R. Evid. 201(c)(2).4 Reed is a former teacher in the D istric t. On February 18, 2022, she prese nted
herself at the administr ation offices of the District in Johnson County to apply as a candidate for P lac e 1 on the Board

. The District had g iv en notice, th rough i ts o wn web site, that applicants who wis hed to file applications in person s hould so appe ar and file between January 19 and February 18, 2022. 3
Reed asked to s peak to Lydia Smylie, the assist ant el ections administrator for
the District

. S mylie took Reed to her office and handed her the application packet to

a pply for a ballot po sition f or the May 7 bo ard election. The appl ication it self was a
f

orm prescribed by the Secretary of State in September 2021 for use in a genera l
election for a cit y, s chool district , or other poli tical subdivision. At the top of the application, the form instru cted that all inf ormation requested mu st be provided
unless s pecif ically identified as optional and that the failure to provide any requir ed
information may r esul t in r ejection of the application. Reed completed the application and handed it (alo ng with su pp orting
documents ) to Smylie , askin g her if everything was fil led in correctly. Smylie answered
that she could not help Reed with a n ything. Reed repli ed that Smylie co uld help her if it was filled out incorrectly “ b ut not to choose a seat to run. ” Sm ylie lo oked at the application, then a dmini st ered the required oath. The oath contained Reed ’ s name and

3 See document entitled 2022 Notice of Electio n Deadline to File f or Pla ce on Ballot , https://www.burlesonisd.net/Page/1242 ( last visited May 3, 2022 )

.5 expressly stated that she was a candi date for the of fice of “ S chool B oard T rustee Pl

. 1. ” Smylie accepted the application , and Reed left the administration o ff ices

. A copy o f Reed ’ s completed and sworn application is rep roduced below :6 On February 23, 2022, Reed received a l etter from an attorney re p resent ing the
D istrict. The attorney info rmed Reed that her ballot application had been rejecte d by
the D istrict due t o two errors: (1) in a space me ant to identify the “ name of e lection , ”
Reed wrote her own name ; and (2) althoug h she i dent ified “ Place 1 ” as the office sought and although the oath ma de clear she was “ a candi date for the office of S c hool
B oard T rustee P l. 1, ” no whe r e within the fo ur cor ners of the application did she
identif y th e District as th e governmental body conducti ng t he ele ction

. Because the application was filed on the final day that it could be accepted , the l etter asserted that
Reed wo uld no t have an opportunity to amend or ot herwise refile her applicat ion.
The letter also represen ted that t he D istrict was unable to exercise a ny discretion ( though D istrict o fficia ls admitted that they knew whic h school district was conducting the general election ) because “ [t]o do otherwise wou ld violate Texas
election la ws. ”
Re ed c ontact ed the Secretary of State and asked t hat off ice to review her applica tion to determine if it was legally suffi cient. On March 18, 2022, Reed received
a respons iv e email from Melani e Best of the E lect ions D ivisio n . In Best ’ s opinion,
ident ifying “ Place 1 ” as the office sought w as probably enough to co mpl y with the law, especia lly because the oath further declared Reed to be “ a candi date for the office
of S chool B oard T rustee P l. 1

. ” Accor d ing to Bes t, i t was obvio us that fi ling the application with the District was “ sufficient to indicate that this is an applica tion for
BISD. ” Further, concerning the title of the form , i.e., the “ name of election ” blank in7 which Re ed mis takenly wrote her n a me , Best said that it is merely for “ administrat ive

con venience ” and not even requir ed by the Election Code. Indeed, t he Secretary of
Stat e ’ s office has emphasized this fact in its recent traini ng seminars , as evidenced b y the following s lide 4 specifica lly referenc ed b y Be st:

W i th the rejection of Reed ’ s application, the only oth er candidate to file a timely application for Place 1 on the general election ballot was the incumbent seeking
reelection

.

4 See Tex. Sec ’ y o f State , Candidate App lications , https://www.sos.texas.gov/ elections/forms/seminar/2021/33rd/candidate

- applications

- 2021.pptx

.8 When a candidate for the school board is uno pposed, t he Election Code
pre s cribes a means by which the board i tself may declare the unopposed candida te elected without resort to a general election : The authority responsible for having the official ballot prepare d shall certify in w riting that a candi date is u nopposed for electi o n to an office if, were the elect io n held, only the votes cast for that can didate in th e election for that office may be counted.

. . . The certifi cation shall be delivered to the governin g body of the polit ical subdivis ion as soon as p ossible afte r the filing d ea dlines for placement on the ballot and list of write

- in candidates

. Tex. E lec. Co de Ann. § 2.052( a), (b) (emphasis added). Then, “ [o] n receipt of the certification, the governing body of the politi cal subdivisio n by or der or or dinance
shal l decl ar e each u nopposed candidate elected t o the office. ” Id. § 2.05 3 ( a )

. If such a de claration is made , “ the election is not held. ” Id. § 2.05 3 (b)

. For example, w hen the candidate s for Places 5, 6 , and 7 were pro perl y certifie d
to be unoppose d for the ge neral ele c tion o f May 1, 2021, the Board rece ived and acted upon the certification from the District ’ s e lection s a dministrator at a meeting
conducted Ma rch 8, 2021, twen ty

- four days after the February 1 2 , 2021 dead line for
fili ng an ap plication for a place on the b a llot

. 5 In this case, the Board did not receive and act upon the ele c tion s administrator ’ s certification th at candidates for Places 1 and 2 were unopposed until a meeting conducted on March 28, 2022, thirt y
- eight days after th e filing deadline.

5 See 20 21 Notic e of Filing Deadline and 20 21 Order of Cancellation , https://www.burlesonisd.net/Page/1242 ( la st visited May 3, 2022 ).9 In deed, the Board had cance led a meeting originally scheduled for the Monday a f ter

t he Friday f iling deadlin e but before Reed had received the letter noti fying her of her application ’ s rejecti on . And the March 28 mee ting was the first op portunity for Reed

an d other interest ed constituents , including a member of the city council for t h e Ci ty of Burleson, to public ly add ress the Board concerning her application and to urge its members to adopt th e Secretary of State ’ s i nterpretation of its own form by
reinstati ng her on the ba llot. 6 The Board , with al l members pr e sent and withou t

comment , un animous ly approved a motion to de clare the incumbent Place 1 and
Place 2 members re elected and order ed the c ancellation of the May 7 election.
Re ed filed her peti tion for wri t of mandamus th ree days later , asking this court

to c o mpel the District to acc ept her bal lot application. 7
III. Standard of Review The duty to determine whether an application for a place o n the ballot complies wi th constituti onal and statuto ry requiremen ts is ministeria l in nature. In re
Bell , No. 13

- 21

- 004 3 9

- CV, 2021 WL 5991 046, a t * 1 (T ex. App.

— Corpus Christi

– Edinburg Dec. 17, 2021, orig. proceeding) (mem. op.). Sections of the Election C ode dealing with candida cy for politi cal offi ce are m andatory and are to be strict ly

6 Video available at https:/ /youtu.be/DuDJfX82ggA?list=PLEzoM98WAVX 8zbeQxE4 qUdku7ht 4q5EcX (last visited May 3 , 2022).

7 The courts of appeals have jurisdiction to issue writ s of mandamus “ to compel the performance of any duty imposed by law in connection with the holding of an electi on . ” Tex. Elec. Code Ann. § 273.061(a) . This cou rt may c on sider Reed ’ s petition b ecause the District is “ partly situat ed ” in Tarrant County. See id. § 263.063 (b)(2).10 enforced and construed to further t h e legislature ’ s in tent t o e nsur e un iform elections statewide, to reduce the likelihood of fraud, to protect ballot secrec y, to promote voter access, and to ens ure all legal ly cast ballots are counted. Tex. Elec. Code Ann. §§ 1.0015, 1.003(a

- 1 ); see In re D ominguez , 621 S.W. 3d 899 , 9 04 ( 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. proc eeding) (per curiam) . In cand idate

eligibi lit y cases, we are to strictly construe the applicable statutes in f a vor of eligibilit y . In re Gree n Pa rty of Tex. , 630 S.W.3d 36, 3 9 (Tex. 2020) (orig. proceeding). Mandamus

r elief is avai lable to compel the accep tance of a st atutorily compli ant a pplicati on and the placement of that candidate ’ s name on the b allot. See In r e Vela , 399 S.W.3 d 265, 266 (T ex. App.

— San Antonio 2012, orig. proceeding); In re Ducato , 66 S.W.3d 558,
55 8 (Tex. App.

— Fort Worth 2002, orig. pr oceeding )

. IV
. Should Reed ’ s Ballo t Appli cati on Have Been Reject ed? The general requirements for ballot applica tions are conta in ed in Section
141 .031 of the Texas Election Code. See Tex. Elec. Code Ann. § 141.0 31. Of
p articular i mportan ce to Reed ’ s situati on, the s tat ute mandates that an a pplicat ion
must include “ the office sought, i ncluding any place number or oth er distinguishing

n umber. ” Id

. § 141.0 3 1(4)(C). An oa th is also required , containing the statement: “ I,

___ __________________ _______ , of ________

_________ ____________ County,
Texa s, being a candidate for the office of _____________________________ , swear11 t hat I will support and d efend the constitution and laws of the United States and of
the State of Tex as” Id. § 141.031(a)(4) (K).
T he problem is dete rmining what co nstit utes an identification of “ the office sought. ” A r elated is sue is whether we shoul d view the ballot application requirement s with some measure of common sense

— in other wo r ds, is there e nough contained in
th e application fo r a p erson of modest intell ig ence to, contextually, compr ehend the
information conve yed by the applicant ? We be liev e that , in Reed ’ s case, the “ office sought ” sh ould have been clear to the election s admini s trato r for the District

. To be sure , there is a li ne of authority holding tha t the b allot ap plication statu te is “ mandatory ” and that “ strict compliance ” with it s terms is required. See, e.g. , Wallac e v. How ell , 707 S .W.2d 876, 877 (Tex. 1986) (orig. pr o c eed ing) ( holding sta tutory mandates should b e str ic tly c onstrued); In re Gibso n , 960 S.W.2d 418, 42 1 (Tex.
A pp.

— Waco 1998, orig. proceeding) ( same ) ; Escobar v. Su therland , 917 S .W.2d 399 , 404 (Tex. App.

— El Pas o 1996 , orig. proceeding) (sam e)

. But later de c isi ons have emphasized the importan ce of candidate acces s and voter choice. S e e In re Francis , 186
S.W.3d 53 4, 542 (Tex. 2006) (orig. proceeding) ( “ As we have not ed many times in

r ecent years, provisions that restr ict the right to hold office must be strictly construed agai n st ineligibility. ” ); Davis v. Ta ylo r , 930 S.W.2d 581, 5 83 ( Te x. 19 96) (orig. proceeding) ( construing laws “broadly in favor of eligibility of i nterest i n access to the
ballot ” )

. Most recently, the Supr eme Cou rt of Texas has stated that the ballot access12 statute s h ould be interpret e d “ wit h a candida te ’ s access to t he b al lot in mind. ” Green
Part y of Tex

. , 630 S.W.3d at 39

. With this in mind, we see no contradictio n between applying the ballot application mandates of Sec tion 141.031 while simul taneously interpreting t h e law in a

manner that fav ors the o bjective of gr e at er ballot access. Here, no r easonable
person

— even one who is not in the position o f the District ’ s election s admi nis t rato r

— when rev iewing Reed ’ s application could have misundersto od what
office she was seekin g . First, it w as un reasona ble for th e D istrict t o r ely on Reed ’ s misplacemen t o f her own name in the “ name of election ” b lank at t he top of the application as a reason to reject the applicat ion

. As the Secretar y o f State ’ s trai ning materials make clear, ev e n leaving t hat bla nk empt y is “ not necessari l y fat al. ” 8 Indeed,
the D ist ric t has not told us what mandatory sta tute Reed supposedly violated by mistakenly filling in that bla nk with her name

. The na me of the election is not the

8 Th e D ist rict argues that we are not b ound by the co nclu sio ns reach e d in the Secre tary o f Stat e ’ s e mail

. We agree that we are not. But we are boun d by the Election Code, a nd we do agree with the Secretary of State that the Election Cod e does not re quire the title of the form to b e fill ed out i n an error

- fr ee m an ner

— or e ve n at a ll. In any ev ent, the Election Code mandat es that the Secretary o f State provide “ a standardized t raining program and materials for county election of ficers

. ” Tex . Elec. C ode Ann. § 31.126(b). Further, we may take judicia l notice of the t raining mat erial s contained on the website of the Secreta r y of State. See Avery v. LPP Mort gage, Ltd. , No. 01

- 14

- 010 07

- CV, 2015 WL 6550774, at *3 (Tex. App.

— Houston [1st Dist.] Oct . 29, 2 015, no pet.) ( mem. op.) (taking judicial notice of records and info rmation con ta ine d on governme nt we bs ite). Finally, althou gh not binding, we find per suasive a reasoned interpretation of a statute by an official of the executive br anch. See T .L. v

. Coo k Children ’ s Med

. C t r . , 607 S.W.3d 9, 33 n.16 (Tex. Ap p.

— Fort W orth 2020, pe t. d enied) , cert. den ied , 141 S. Ct. 1069 (2021)

.13 “ office s ought ” m entioned in the El ection Code. See Tex . Ele c. Code Ann

. § 141.031(a)(4) (C). And it is simpl y not conceivable that the D ist rict w as fooled into thinking (as their attorneys have implied to Reed and to this c ourt ) that sh e was really applying to be on the ball o t in the “ Nona Reed ” general electi on. Second, and re l a tedly, the D istrict implausi bly ins ists that Section 141.031

re quired the rejection of Reed ’ s application because its “ four corners ” never identified
the political subdivision cond uctin g the g eneral election for which she sought ballot

access and that the surrounding circumstances of Reed ’ s i n

- person application could
not be considered

. Reed timely presented hers elf as a candi date in the administr ation
offic e s of th e District , as she wa s in structed to do by the noti c e of filing deadline published by the Dis t rict

. 9 S he received , filled out, swore to, an d filed her application at the administration offices of the Di strict and in the presence of the assista nt ele c tions
administrator for the Dis t r ict

. S he identified herself by office sought and took the oath

as a candidate for Place 1, whi ch was one of the only two places on the Board

s che duled for the general electio n by the District

. And the assistant elections
ad minis trator for the Distric t n otarized her oath as a candidate for that office

. The idea
that Reed went to all this trouble to file an application for a ge neral election to be
conducted for some other politi c al s ubdivision is simply untenable.

9 See 2 022 Notice of Election Deadlin e to File for Pla ce on Ba llot , https ://www.burlesonisd.net/Page/1242 ( last visited May 3, 2022 ).14 In so conclu ding, we find pers uasive th e c o mmon

- sense approach of our sister
court in El Paso i n Y a por v. McCon nell , 597 S. W. 2d 555 (Tex. A pp.

— E l Paso 198 0, orig. proceeding )

. In Yapor , the candidate fi ll ed out a ballot application but failed to f ill
in three blanks

—h is name, his c ounty of re sidence, an d t he office h e sought

— on the statutorily requ i red “ loya lty aff idavit

. ” Id. at 556. The can didate properly executed the
oath , however , and despite the omissions, the court held that the applicat ion
conformed to the “ requ irements and in tended purp ose ” of the statu te be cau se the
information missing from the empty blanks c ould be gl eaned from other parts of th e appl ication. Id

. Accordingly, the court granted mandamus rel ief by ordering the

ca n didate ’ s name placed on t he b all ot. Id

. The D istrict argu es that Yapor is distin gu is hable because in that case the missing informat ion was asce rtain able from t he ap plication itsel f , whereas in Reed ’ s situation , the District ’ s identit y as the political subdivision conducting the general

e lection i s missing entire ly from Reed ’ s applicat io n . We disagree , however, that
Sec tion 141.031 for eclose s common

- sense conside ration of reasonab le inferen ces from the circu mstances surrounding the filin g of an application

. And the Supreme
Court of Texa s has reject ed such an ab solutist “ four co rners ” approach

. For e xample, in I n re Barne tt , the s upreme c ourt consid ered a ballot ap plication
that omitted the candidate ’ s address

. 207 S.W.3d 326, 327 (Tex. 200 6) ( orig. proceeding)

. T he supreme c ourt held tha t such an omiss i o n was no t fatal: the applicant ’ s residence (specifically, his address in t he single

- m ember district for which15 he wanted to r un) could be ascertained by “ confir ming [his] resid ency based upon information in his appl ication and undisputed pu blic records

. ” I d

. at 3 28 (emphasis added)

. Not only may in formation from s ources outs ide i ts “ four co rners ” b e uti lized to comple te an appli cation but also the court clearly r eject ed such a pe r se exclusionary
rule

. 10 Similarly, ou r sister co urt in San An t onio considered the bal lo t application of a candid ate for Ju stice of the Peace, Pr ecin ct 4, Pla ce 1 ; t he application omitted

“ Plac e 1 ” as the office sought

. See I n re Garcia , N o. 04

- 22

- 00016

- CV, 2022 WL 130287, at *1 (Tex . App.

— San Antonio Jan. 14, 202 2, o rig. proce eding ) (mem. op .)

. The court found th e evidence to be undisputed that “ Place 2 ” had been rec ent ly
abolis hed ; acc ordingly , it wou ld be irrational to assume confusion o n the part of party officials construing the candidate ’ s ballot a pplication. See id. at *3. Place 2 s im pl y did not exist any more. Id

. “ [A] rejection of [relator ’ s] ap plication based on the omis sion of
the P lace 1 designation

. . . b oth den[ies] her access to the ballot and silence[s] the
voices of the voters w ho signed a petiti on in support of her pla ce on t he ballot. ” Id . at

10 The Ba rnett opinion helpf ully reprin ted the can d i date ’ s ballot ap plication in an appe ndix

. 207 S .W. 3d at 329. Interest ingly, the candidate filled in the “ off ice sought ” blank in the same wa y a s did R eed : writing only “ T rustee 6 ” without identifying the Dallas In dependent School Di stri c t as t he poli t ical subdivision or i ts Board of Tru stees as the g ov erning b ody. We note this not for its legal significance (that part of the app l ication was not a t issue in Bar nett ) but be cause of its insignificance

. I t underscores the fact that a re ason a ble ele ction s a dmin i str ator , when ha nded such a n applicatio n , would react w ith common sense (as did the DISD official in Barnet t ) and presume that an applicant for a place o n the sc hool board who appear ed b efore sch ool district admini st ra t ion w as s eeking a n o ffice on that di strict ’ s scho ol boa rd.16 *4 ; s ee al so Francis , 186 S.W.3d at 542 ( “ T he public intere st is best served when p ubli c offices are decide d by fair and vigorous ele ctions, not technicalities leading to
default. ” ); In re Bell , 91 S.W.3d 784, 78 8 (Tex. 200 2 ) (orig. proceeding) ( “ We t herefore
conclude that o m itting the signers ’ cit y o f residence f rom [relator ’ s] petition [di d] not undermine the purpos e behind the E le ction Code ’ s ‘ re sidenc e address ’ requirement []
be cause the re [was] enough other information to allow voting

- eligibility v er ific ation for this par t icu lar election. ” ).
In support of it s “ four corners ” approach, t he D istrict relies o n a subsequent
decision of t he El Paso Court of Appeals. See I n re Armendariz , 245 S .W.3d 92, 95 (Tex. App.

— El Paso 2008 , orig. proc eeding)

. In Ar mendari z

, the candida te submitted an application and a p etit ion , both of which i ndicate d his desire to run for “ P residio County Com missioner Precinct #2. ” Id . at 9 3 . Unfortunately , the office o f County
Commissioner Preci nct 2 was not up for electi on, and nowh ere in h is ap plication did
he dem o nstrate an y int ent to r un for the o ffice that was the su bject of the up com ing
election

— Presidio County Com missioner Precinct 1. Id

. Although a reasonable
infere nce ex isted from the sur round ing circumstances th at the c and idate was simpl y mistaken in iden t ifying the office sought and actually sought ballot access for
Pr ecinct 1 , a n equally reasonable inference existed that he tru ly sought ballot access
for Precinct 2 but was mistaken as to when the office was s ubject to ele ction. See id.
A bsen t any means of identi f ying the mistake , t he error was fatal. See id.17 Her e, th ere can be no such c onfusion. As noted above, t he circumstances

surrou nding Reed ’ s filing of her application admit of no other interpretation bu t that
she sou ght ballo t acces s for an office for which t he Distr ict

— and n o other political
subdivision

— int ended to conduct a general election. S he received , filled out, swore
to, an d filed her application at the administration offic es and in the presence of the
assista nt ele ctions adm inistrator for the Dist r ict. And in not a rizi ng her oath, the same
assistant e lecti ons administrator confirmed that Reed sought ballot access for a pl ace on a board of trustees that just ha ppened to match one of the places subjec t to the upcoming May 7 gene ral election , the adm i nistration of which wa s expressly included
with in her j ob ti tle. In the letter rejecting Reed ’ s application , even the D istr ict ’ s own counsel a dm it ted that D istrict offici als “ consid ered accepting [Reed ’ s] a pplicat ion,
i nterpr eting tha t [she had ] i nte nded to file in the Burleson ISD General Election
based on al l the cir cumstances, including the fact [ that she had ] submitted the application to Bu rleson ISD offic ia ls. ” Such an interpretatio n is th e only reasonable

one under the circum st ances . But the D istric t chose to behav e unreas onably, insi sting that the ballot application pro cess is really a “ gotcha ” trap, rather than one designed by the
l egis lature to ac hieve a “ just and reasonable resu lt

. ” See B ell , 91 S.W.3d at 785 (applying langua ge of Co de Construction Act to residence

- d isc losure sec tions o f Election Code)

. In sum, no reasonable elect ion s admi nistrator for the District could
have not arized Reed ’ s oath declari ng her candidacy for “ the office of School Board18 T rus tee Pl

. 1 ” under the s urround ing circumstances and lawfully re j ec ted her appli cati on . Accordingly, the District wrongfull y rejected Re ed ’ s applic ation and
exclud ed her from the May 7 bal lot a nd thereby u nlawfully certified the i ncumbent
Place 1 member unop posed for reelection , decl ared him officially reelected , an d

canc e led the May 7 ge neral election

. V
. Is The re a R emedy?
The D istrict argues that R eed has filed her petition for mand a mus far too late

to appear on the bal lot for t he M ay 7 election. We agree. 11 T he time for mailing absentee ballots began o n March 23 : [ T

] he balloting materials for a voter w ho indicates on the appl ic a tion for a ballot to be voted by mail or the federa l p os tca rd application that the
v o ter is el igib le to vote ea rly by mail as a consequence of t h e voter ’ s being outside the United Stat es shal l be mailed on or before the later of the 45th day before elec ti o n day or the seventh calendar day a fter the date th e c le rk receives the application

. Tex. Elec. Code Ann. § 8 6 .004 (b)

. And t he la w disfavors judicial int erference with an
elect i on that is al ready in progress. See Polk v. Davidso n , 196 S.W.2d 632, 634 (T ex . 1946) (orig. proceeding) (mooting appeal in ba ll ot challenge whe n it would be “ utterly impossible ” to di s p ose of the case in time to print appli ca nt ’ s name on the ballot in
time for absente e bal lo t ing to begin)

. B ecause the bal lots for t he May 7, 2022 el ection
were due to be sent out before Reed ’ s challe ng e to her ballot rejection

— in deed, even
before the Boa r d re ceived and acted on the certification of unopposed candidates by

11 This particular mootness argumen t o f the District is the only one with which we agree.19 declaring their reel ec t ion and cance l ing the general election

— this c ourt is powe rless
to orde r her to be pl aced on the general ele ct ion ballot

. See In re Crensha w , No. 05

- 17

- 00330

- CV , 20 1 7 WL 1292013, at *1 (Tex. App.

— Dallas Apr. 7, 2017 , ori g. proceeding) ( mem. op. ) (declin i ng to order city secretary to pla ce relator ’ s name on ballot whe n absentee balloting had already begun).
E v en if the law a llowed our interv ention in this manner , th e re is no pending general election w i th whic h to interfere ; t h e May 7 ge neral election ha s b een cance led

. The D istrict , witho ut legal justification but relying sol ely up on its own determin ation
th at Reed ’ s ballot application was ir redeemably defec tive, sim p ly has declared t he “unopposed ” inc umbent candidate for P lace 1 “reelec ted ” and t h ere by ren der ed the May 7 general election un necess ary . See Tex. Elec. Co de Ann. § 2.053 (a), ( b)

. Nevertheless, Reed is not without a reme dy. Section 273.081 o f the Electio n Code authorizes “ a ppropri ate injunctive relief ” for a pe rson “ wh o is being harmed or
is in d anger of being harmed by a violat ion or thre atened violation of this code ” in
order “ t o prevent the violation from continui ng or occurring. ” See id

. § 273. 081.
Ind eed, we are tasked

— when exercising equita ble powers to re solve Election Code
violations

— t o “ b alance competing equities. ” In re Gamble , 71 S.W.3d 313, 317 (Tex.
2 002) (orig. proce eding) . This balancing must, by nec essity in Reed ’ s case, re ly o n

some amo unt of creativity. Because the D istrict ’ s rejection of Reed ’ s ballot ap p lication
violated the bal lot access provisions of the code and contin ues to unlawfully harm Reed by depriving her of the ba ll ot access guaranteed thereby , w e conclude tha t th e20 Dist rict ’ s certifi cation of t he incumbent Place 1 candidate as unoppo sed , its
declar ation of h i s official reelect ion , and its cancell ation of the May 7 general election
are all action s su bject to the injunctive relief contemplated by Section 273.081.
Mor eove r, under the se unique circumstances , because the District failed to
conduct a general election for the next term for Place 1 on the Boar d, the

cont emplated injun ction will result in a v ac ancy at the end of its current t erm . See Diaz v. Valadez , 520 S.W .2d 45 8 , 459

– 60 (Tex. App.

— Corpus Christi

– Edinburg 1975, no writ ) ( hold ing th at school district ’ s failure t o elect a successor to boar d of t rustees

cre ated vacan cy s ubject to appointment pu rsuant to Education Code ) ; Clark v. W o rnell , 65 S.W.2d 350, 351 (Te x. App

. — Waco 1933, no writ ) ( holding th at ru ral school
district ’ s fail ure to elect a successor to an i ncumb ent board member at the general

e lection cre ated a vacan cy subject to appointment in accordance with statute ) ; Tom v. Klepper , 172 S.W. 7 21 , 723 (Tex . App.

— El Pa so 1915, writ ref ’ d) ( holding th at the
failure to elect co unty commissioner at g eneral election resulted in vacancy subject to

s tatutory ap pointment )

. Secti o n 11.060 (c) of the T exas E ducation Code provide s for
the remedy of a special electi on t o fill the vacancy

. See Tex. Ed uc. Code Ann. § 11.060 (c)

. Al thoug h the E ducation Code also empo wers th e Boa r d to appoint
someone to fill tha t vac ancy, see id . § 11.060( a) , (b) , we are mindf ul that the Board ’ s ability to fill Place 1 by appointment may mer e ly per petuate the in jury alread y suff ered by Reed and de prive her of t he candidacy for which she legally qu alified

. Specifically,21 the Distri ct ignored its constituents 12 and effectively “ sil ence [d] the voices of the

voters ” by unlawfully stripping from Reed her r ight to appear on the ballot and

cance ling the May 7 election

. S ee Garcia , 2022 WL 13 0287, at *4

. Fur ther, the District ignored the tr aining from the Secretary of State ’ s office 13 ( r efer red to above)

— training
that cla rifie s the ballot applicatio n requ iremen ts of the Election Code and
demonstrat e s that Reed ’ s application complie s with th o se requirements. We therefore
have no confidence tha t th e Board will not simply appoint the incu m bent Place 1
member in a bid to ach ieve t hrough quasi

- legal means what the Di strict attempted to do through its rejection of Reed ’ s ballot ap plication.
Accordi ngly, we enjoin the District from certifying the inc umbe n t Plac e 1
candidat e as unopp osed for ree lection and from d e cla r ing him reelected to a new term and furthe r orde r the District to conduct a special election to fill the vacancy resul ting
theref rom upon th e contemplated expiration of the current Place 1 term and a t the
earliest opportunity afforde d by and in accordance wi t h the relevant provisions of the

12 Six members of the public (including Re ed an d a member of the City Coun cil of the City of Burleson ) stood up at the BISD Board of Tr uste es meeting on Ma rc h 2 8, 2022 , and urged the Board to hold the ge ner al election on May 7. B oard of Trustees, Burleson ISD, Of ficial Minute s of March 28, 2022, https:/ / meeting s. b oa rdboo k.org /Documents/CustomMinutesForMeeting/1384?meeting=518098

.

13 The first speaker at the B oard me eting, in endorsing Reed ’ s placement on t he ballo t and the non

- ca n c ellation of the May 7 election, specifically referred to this training an d BISD ’ s par ti cipa tion i n it. See Video of March 28, 2022 BISD Board Meeting , https://youtu.be/DuDJfX82ggA?li st=PLEzoM98WAVX8zbeQxE4qUdk u7h t4q 5EcX ( beginni ng at a ro und 2: 20 ).22 Texas Elec ti on Cod e . 14 To effectuat e this remedy, the appli cat i ons of both Reed and
the incumbe nt Place 1 candidate are ordered “ grandfathered ” as having already be en filed for the special election u n less expressly withdrawn in accordance with the
Election Code. Finall y , we observe that p ursuant to Article XVI, Section 17 of the
Texas Co nstitution, the incumbent Place 1 mem be r will “ hold over ” in office un til
such ti m e as the results of the special e lection produce a qual ified successor for
Place 1

. See Tex. Const . art. XVI, § 17 ( “ [A]ll officers of thi s State shall continue to perf orm the duties of their offices until their successors shall be duly qualifi ed. ” ) ; see Plain s Common Consol . S ch. Dist . N o. 1 of Yoakum C n ty. v. Hayhurst , 122 S.W.2d 322 , 326 (Tex. App.

— Amaril lo 193 8, no writ) ( “ Th e purpose of the constitutional and

statut ory provis ions requiring officers to hold o ver u ntil their successors have
q ualified is to pr event vacancies in office an d a c onsequent cessation of the functions of gove rnment. The cons tituti onal p rovision is self

- executing, and, like the similar provisio ns in the statutes, it is mandatory. ” (quo t ing 34 Tex. Jur. 370 ) ) ; Maddox v

. York , 54 S .W. 24 , 25 (Tex. App.

— Fort Wo rth 1 899) 15 ( “ Only the failure to elect or

14

We a lso reject the Distric t ’ s argument that the fifty

- day deadlin e in Election Code Section 141.034(a) bar s Reed from seeking relief. By its ve ry terms, that deadline applies to chall enges to an application, not legal ac t ion pursue d ag ain st a political subdivi sion because of its rejection of an application. Tex. Elec. Code Ann. § 141.034(a) ; s ee Es cobar , 917 S.W.2d at 410 ( “ [W] e conclude that [Section] 141.034 implic ates a judicial challenge brought by a c ontestan t. ” ).

15 Al t hough not des ignated as such in t he or iginal West publication of the opinion , Maddo x is an opinion from this court

. S ee Dobkins v. Reece , 17 S.W.2d 81, 8223 appoint a successor would en title the i ncumbent to so remain in office, in order to perform its d uties as enjoined in the constitution. ” ), af f

’ d

, 55 S.W. 1133 (Tex

. 1900)

. V I
. C ONCLUSI ON
Ha ving found that Nona Reed h a s bee n harmed by the Dis t rict ’ s unlawful rejection of her ballot applica t ion, we conditionally grant the petition for writ of
mandamus

. We enjoin the D i strict from certifyi ng the incumbe n t Place 1 candidat e as

un opp osed fo r reelection and d e cla r in g him re elected to a new term an d further order
the District to conduct a special elec tion to fill the vacancy resulting theref rom in
accordance with this opinion

. A writ will issue only i f the D istrict fail s to comp ly wi th
these d irectives

. /s/ Wade Birdwell
W a de B irdwell Ju st ice
Del ivered: May 4, 2022

(Tex . Ap p.

— Fort Worth 1929, writ ref ’ d) (referrin g t o Maddox as an opin ion “ by this
co urt ” ).