In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00113-CV

___________________________

Original Proceeding

Tarrant County, Texas

Before Sudderth, C.J.; Birdwell and Walker, JJ. 

Memorandum Opinion by Justice Birdwell

IN RE NONA REED, Relator
2

MEMORANDUM OPINION

I. Introduction

In this original proceeding, Relator Nona Reed seeks mandamus relief requiring 

that Real Party in Interest Burleson Independent School District officially recognize 

her candidacy for Place 1 on its Board of Trustees by placing her on the official ballot 

for the May 7, 2022 general election. Concluding that Reed failed to qualify as a

candidate due to two errors on her timely filed application, the District, through a 

unanimous vote of the Board, including the incumbent Place 1 member, rejected her 

candidacy, certified the incumbent Place 1 and Place 2 members unopposed for 

reelection, declared them officially reelected, and canceled the May 7 general election.

Because we agree with the Secretary of State’s evaluation that Reed’s timely filed 

application met all statutory criteria for ballot qualification, we hold that the District 

wrongfully excluded Reed from the May 7 ballot and thereby unlawfully certified the

incumbent 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 the 

District’s contested Place 1 general election as originally scheduled, given the District 

cannot legally declare the incumbent Place 1 member reelected under the 

circumstances, a vacancy will occur at the end of his current term, and 

Section 11.060(c) of the Texas Education Code provides for the remedy of a special 

election to fill the vacancy. See Tex. Educ. Code Ann. § 11.060(c). Accordingly, we 

grant the petition for writ of mandamus; we enjoin the District from certifying the 
3

incumbent Place 1 member unopposed for reelection and declaring him reelected to a 

new term and further order the District to conduct 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 Election Code.

II. Background

The District “lies partly in Tarrant County and partly in Johnson County.”

Baker v. Brown, 165 S.W.2d 522, 522 (Tex. App.—Fort Worth 1942, no writ). As the 

governing body of the District, the Board of Trustees consists of seven members, all 

of whom are elected at-large for three-year terms.

1 Each year, a general election for at 

least two places on the Board—three every third year—is conducted in May. This

year’s general election, scheduled for May 7, 2022, was to have been for Places 1 and 

2.

2 Because the District covers portions of both Tarrant and Johnson Counties, 

general and special elections for the Board are conducted in and administered by both 

counties.

1

We rely on information about the Burleson ISD Board of Trustees and their 

posted documents contained in the District’s website and located at 

https://www.burlesonisd.net/domain/28. We may take judicial notice of information 

contained on a governmental website whether requested by a party or on our own 

motion. See City of El Paso v. Fox, 458 S.W.3d 66, 71–72 (Tex. App.—El Paso 2014, no 

pet.).

2

The District asked us to take judicial notice of the election calendar, and we do 

so. See Tex. R. Evid. 201(c)(2).
4

Reed is a former teacher in the District. On February 18, 2022, she presented 

herself at the administration offices of the District in Johnson County to apply as a 

candidate for Place 1 on the Board. The District had given notice, through its own 

website, that applicants who wished to file applications in person should so appear 

and file between January 19 and February 18, 2022.3

Reed asked to speak to Lydia Smylie, the assistant elections administrator for 

the District. Smylie took Reed to her office and handed her the application packet to 

apply for a ballot position for the May 7 board election. The application itself was a 

form prescribed by the Secretary of State in September 2021 for use in a general 

election for a city, school district, or other political subdivision. At the top of the 

application, the form instructed that all information requested must be provided 

unless specifically identified as optional and that the failure to provide any required 

information may result in rejection of the application.

Reed completed the application and handed it (along with supporting 

documents) to Smylie, asking her if everything was filled in correctly. Smylie answered 

that she could not help Reed with anything. Reed replied that Smylie could help her if 

it was filled out incorrectly “but not to choose a seat to run.” Smylie looked at the 

application, then administered the required oath. The oath contained Reed’s name and

3

See document entitled 2022 Notice of Election Deadline to File for Place on 

Ballot, https://www.burlesonisd.net/Page/1242 (last visited May 3, 2022).
5

expressly stated that she was a candidate for the office of “School Board Trustee 

Pl. 1.” Smylie accepted the application, and Reed left the administration offices.

A copy of Reed’s completed and sworn application is reproduced below:
6

On February 23, 2022, Reed received a letter from an attorney representing the

District. The attorney informed Reed that her ballot application had been rejected by 

the District due to two errors: (1) in a space meant to identify the “name of election,”

Reed wrote her own name; and (2) although she identified “Place 1” as the office 

sought and although the oath made clear she was “a candidate for the office of School 

Board Trustee Pl. 1,” nowhere within the four corners of the application did she 

identify the District as the governmental body conducting the election. Because the 

application was filed on the final day that it could be accepted, the letter asserted that 

Reed would not have an opportunity to amend or otherwise refile her application.

The letter also represented that the District was unable to exercise any discretion 

(though District officials admitted that they knew which school district was 

conducting the general election) because “[t]o do otherwise would violate Texas 

election laws.”

Reed contacted the Secretary of State and asked that office to review her 

application to determine if it was legally sufficient. On March 18, 2022, Reed received

a responsive email from Melanie Best of the Elections Division. In Best’s opinion,

identifying “Place 1” as the office sought was probably enough to comply with the 

law, especially because the oath further declared Reed to be “a candidate for the office 

of School Board Trustee Pl. 1.” According to Best, it was obvious that filing the 

application with the District was “sufficient to indicate that this is an application for 

BISD.” Further, concerning the title of the form, i.e., the “name of election” blank in 
7

which Reed mistakenly wrote her name, Best said that it is merely for “administrative 

convenience” and not even required by the Election Code. Indeed, the Secretary of 

State’s office has emphasized this fact in its recent training seminars, as evidenced by 

the following slide4 specifically referenced by Best:

With the rejection of Reed’s application, the only other candidate to file a 

timely application for Place 1 on the general election ballot was the incumbent seeking 

reelection.

4

See Tex. Sec’y of State, Candidate Applications, https://www.sos.texas.gov/

elections/forms/seminar/2021/33rd/candidate-applications-2021.pptx.
8

When a candidate for the school board is unopposed, the Election Code

prescribes a means by which the board itself may declare the unopposed candidate 

elected without resort to a general election:

The authority responsible for having the official ballot prepared shall 

certify in writing that a candidate is unopposed for election to an office 

if, were the election held, only the votes cast for that candidate in the 

election for that office may be counted. . . . The certification shall be 

delivered to the governing body of the political subdivision as soon as 

possible after the filing deadlines for placement on the ballot and list of 

write-in candidates.

Tex. Elec. Code Ann. § 2.052(a), (b) (emphasis added). Then, “[o]n receipt of the 

certification, the governing body of the political subdivision by order or ordinance 

shall declare each unopposed candidate elected to the office.” Id. § 2.053(a). If such a 

declaration is made, “the election is not held.” Id. § 2.053(b).

For example, when the candidates for Places 5, 6, and 7 were properly certified 

to be unopposed for the general election of May 1, 2021, the Board received and 

acted upon the certification from the District’s elections administrator at a meeting 

conducted March 8, 2021, twenty-four days after the February 12, 2021 deadline for 

filing an application for a place on the ballot.

5

In this case, the Board did not receive and act upon the elections

administrator’s certification that candidates for Places 1 and 2 were unopposed until a 

meeting conducted on March 28, 2022, thirty-eight days after the filing deadline. 

5

See 2021 Notice of Filing Deadline and 2021 Order of Cancellation,

https://www.burlesonisd.net/Page/1242 (last visited May 3, 2022).
9

Indeed, the Board had canceled a meeting originally scheduled for the Monday after 

the Friday filing deadline but before Reed had received the letter notifying her of her 

application’s rejection. And the March 28 meeting was the first opportunity for Reed 

and other interested constituents, including a member of the city council for the City 

of Burleson, to publicly address the Board concerning her application and to urge its 

members to adopt the Secretary of State’s interpretation of its own form by 

reinstating her on the ballot.6 The Board, with all members present and without 

comment, unanimously approved a motion to declare the incumbent Place 1 and 

Place 2 members reelected and ordered the cancellation of the May 7 election.

Reed filed her petition for writ of mandamus three days later, asking this court

to compel the District to accept her ballot application.7

III. Standard of Review

The duty to determine whether an application for a place on the ballot 

complies with constitutional and statutory requirements is ministerial in nature. In re 

Bell, No. 13-21-00439-CV, 2021 WL 5991046, at *1 (Tex. App.—Corpus Christi–

Edinburg Dec. 17, 2021, orig. proceeding) (mem. op.). Sections of the Election Code 

dealing with candidacy for political office are mandatory and are to be strictly 

6

Video available at https://youtu.be/DuDJfX82ggA?list=PLEzoM98WAVX

8zbeQxE4qUdku7ht4q5EcX (last visited May 3, 2022).

7

The courts of appeals have jurisdiction to issue writs 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(a). This court may consider Reed’s petition 

because the District is “partly situated” in Tarrant County. See id. § 263.063(b)(2).
10

enforced and construed to further the legislature’s intent to ensure uniform elections 

statewide, to reduce the likelihood of fraud, to protect ballot secrecy, to promote 

voter access, and to ensure all legally cast ballots are counted. Tex. Elec. Code Ann. 

§§ 1.0015, 1.003(a-1); see In re Dominguez, 621 S.W.3d 899, 904 (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. proceeding) (per curiam). In candidateeligibility cases, we are to strictly construe the applicable statutes in favor of eligibility. 

In re Green Party of Tex., 630 S.W.3d 36, 39 (Tex. 2020) (orig. proceeding). Mandamus 

relief is available to compel the acceptance of a statutorily compliant application and 

the placement of that candidate’s name on the ballot. See In re Vela, 399 S.W.3d 265,

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

558 (Tex. App.—Fort Worth 2002, orig. proceeding).

IV. Should Reed’s Ballot Application Have Been Rejected?

The general requirements for ballot applications are contained in Section 

141.031 of the Texas Election Code. See Tex. Elec. Code Ann. § 141.031. Of 

particular importance to Reed’s situation, the statute mandates that an application 

must include “the office sought, including any place number or other distinguishing 

number.” Id. § 141.031(4)(C). An oath is also required, containing the statement: “I, 

____________________________, of _____________________________ County,

Texas, being a candidate for the office of _____________________________, swear 
11

that I will support and defend the constitution and laws of the United States and of 

the State of Texas” Id. § 141.031(a)(4)(K).

The problem is determining what constitutes an identification of “the office 

sought.” A related issue is whether we should view the ballot application requirements 

with some measure of common sense—in other words, is there enough contained in 

the application for a person of modest intelligence to, contextually, comprehend the 

information conveyed by the applicant? We believe that, in Reed’s case, the “office 

sought” should have been clear to the elections administrator for the District.

To be sure, there is a line of authority holding that the ballot application statute 

is “mandatory” and that “strict compliance” with its terms is required. See, e.g., Wallace 

v. Howell, 707 S.W.2d 876, 877 (Tex. 1986) (orig. proceeding) (holding statutory 

mandates should be strictly construed); In re Gibson, 960 S.W.2d 418, 421 (Tex.

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

(Tex. App.—El Paso 1996, orig. proceeding) (same). But later decisions have

emphasized the importance of candidate access and voter choice. See In re Francis, 186 

S.W.3d 534, 542 (Tex. 2006) (orig. proceeding) (“As we have noted many times in 

recent years, provisions that restrict the right to hold office must be strictly construed 

against ineligibility.”); Davis v. Taylor, 930 S.W.2d 581, 583 (Tex. 1996) (orig.

proceeding) (construing laws “broadly in favor of eligibility of interest in access to the 

ballot”). Most recently, the Supreme Court of Texas has stated that the ballot access 
12

statute should be interpreted “with a candidate’s access to the ballot in mind.” Green 

Party of Tex., 630 S.W.3d at 39.

With this in mind, we see no contradiction between applying the ballot 

application mandates of Section 141.031 while simultaneously interpreting the law in a 

manner that favors the objective of greater ballot access. Here, no reasonable 

person—even one who is not in the position of the District’s elections

administrator—when reviewing Reed’s application could have misunderstood what 

office she was seeking. First, it was unreasonable for the District to rely on Reed’s 

misplacement of her own name in the “name of election” blank at the top of the 

application as a reason to reject the application. As the Secretary of State’s training 

materials make clear, even leaving that blank empty is “not necessarily fatal.”8 Indeed,

the District has not told us what mandatory statute Reed supposedly violated by 

mistakenly filling in that blank with her name. The name of the election is not the 

8

The District argues that we are not bound by the conclusions reached in the 

Secretary of State’s email. We agree that we are not. But we are bound by the Election 

Code, and we do agree with the Secretary of State that the Election Code does not

require the title of the form to be filled out in an error-free manner—or even at all. In 

any event, the Election Code mandates that the Secretary of State provide “a 

standardized training program and materials for county election officers.” Tex. Elec. 

Code Ann. § 31.126(b). Further, we may take judicial notice of the training materials 

contained on the website of the Secretary of State. See Avery v. LPP Mortgage, Ltd., No. 

01-14-01007-CV, 2015 WL 6550774, at *3 (Tex. App.—Houston [1st Dist.] Oct. 29, 

2015, no pet.) (mem. op.) (taking judicial notice of records and information contained 

on government website). Finally, although not binding, we find persuasive a reasoned 

interpretation of a statute by an official of the executive branch. See T.L. v. Cook 

Children’s Med. Ctr., 607 S.W.3d 9, 33 n.16 (Tex. App.—Fort Worth 2020, pet. denied), 

cert. denied, 141 S. Ct. 1069 (2021).
13

“office sought” mentioned in the Election Code. See Tex. Elec. Code Ann. 

§ 141.031(a)(4)(C). And it is simply not conceivable that the District was fooled into 

thinking (as their attorneys have implied to Reed and to this court) that she was really 

applying to be on the ballot in the “Nona Reed” general election.

Second, and relatedly, the District implausibly insists that Section 141.031

required the rejection of Reed’s application because its “four corners” never identified 

the political subdivision conducting the general election for which she sought ballot 

access and that the surrounding circumstances of Reed’s in-person application could 

not be considered. Reed timely presented herself as a candidate in the administration

offices of the District, as she was instructed to do by the notice of filing deadline 

published by the District.

9 She received, filled out, swore to, and filed her application at 

the administration offices of the District and in the presence of the assistant elections 

administrator for the District. She identified herself by office sought and took the oath 

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

scheduled for the general election by the District. And the assistant elections 

administrator for the District notarized her oath as a candidate for that office. The idea 

that Reed went to all this trouble to file an application for a general election to be 

conducted for some other political subdivision is simply untenable.

9

See 2022 Notice of Election Deadline to File for Place on Ballot,

https://www.burlesonisd.net/Page/1242 (last visited May 3, 2022).
14

In so concluding, we find persuasive the common-sense approach of our sister 

court in El Paso in Yapor v. McConnell, 597 S.W.2d 555 (Tex. App.—El Paso 1980, 

orig. proceeding). In Yapor, the candidate filled out a ballot application but failed to fill 

in three blanks—his name, his county of residence, and the office he sought—on the 

statutorily required “loyalty affidavit.” Id. at 556. The candidate properly executed the 

oath, however, and despite the omissions, the court held that the application

conformed to the “requirements and intended purpose” of the statute because the

information missing from the empty blanks could be gleaned from other parts of the 

application. Id. Accordingly, the court granted mandamus relief by ordering the 

candidate’s name placed on the ballot. Id.

The District argues that Yapor is distinguishable because in that case the 

missing information was ascertainable from the application itself, whereas in Reed’s 

situation, the District’s identity as the political subdivision conducting the general 

election is missing entirely from Reed’s application. We disagree, however, that 

Section 141.031 forecloses common-sense consideration of reasonable inferences 

from the circumstances surrounding the filing of an application. And the Supreme 

Court of Texas has rejected such an absolutist “four corners” approach.

For example, in In re Barnett, the supreme court considered a ballot application 

that omitted the candidate’s address. 207 S.W.3d 326, 327 (Tex. 2006) (orig. 

proceeding). The supreme court held that such an omission was not fatal: the 

applicant’s residence (specifically, his address in the single-member district for which 
15

he wanted to run) could be ascertained by “confirming [his] residency based upon 

information in his application and undisputed public records.” Id. at 328 (emphasis added).

Not only may information from sources outside its “four corners” be utilized to 

complete an application but also the court clearly rejected such a per se exclusionary 

rule.

10

Similarly, our sister court in San Antonio considered the ballot application of a 

candidate for Justice of the Peace, Precinct 4, Place 1; the application omitted 

“Place 1” as the office sought. See In re Garcia, No. 04-22-00016-CV, 2022 WL 

130287, at *1 (Tex. App.—San Antonio Jan. 14, 2022, orig. proceeding) (mem. op.). 

The court found the evidence to be undisputed that “Place 2” had been recently 

abolished; accordingly, it would be irrational to assume confusion on the part of party 

officials construing the candidate’s ballot application. See id. at *3. Place 2 simply did 

not exist anymore. Id. “[A] rejection of [relator’s] application based on the omission of 

the Place 1 designation . . . both den[ies] her access to the ballot and silence[s] the 

voices of the voters who signed a petition in support of her place on the ballot.” Id. at 

10The Barnett opinion helpfully reprinted the candidate’s ballot application in an 

appendix. 207 S.W.3d at 329. Interestingly, the candidate filled in the “office sought”

blank in the same way as did Reed: writing only “Trustee 6” without identifying the 

Dallas Independent School District as the political subdivision or its Board of 

Trustees as the governing body. We note this not for its legal significance (that part of 

the application was not at issue in Barnett) but because of its insignificance. It 

underscores the fact that a reasonable elections administrator, when handed such an 

application, would react with common sense (as did the DISD official in Barnett) and 

presume that an applicant for a place on the school board who appeared before 

school district administration was seeking an office on that district’s school board.
16

*4; see also Francis, 186 S.W.3d at 542 (“The public interest is best served when public 

offices are decided by fair and vigorous elections, not technicalities leading to 

default.”); In re Bell, 91 S.W.3d 784, 788 (Tex. 2002) (orig. proceeding) (“We therefore 

conclude that omitting the signers’ city of residence from [relator’s] petition [did] not 

undermine the purpose behind the Election Code’s ‘residence address’ requirement[]

because there [was] enough other information to allow voting-eligibility verification 

for this particular election.”).

In support of its “four corners” approach, the District relies on a subsequent

decision of the El Paso Court of Appeals. See In re Armendariz, 245 S.W.3d 92, 95 

(Tex. App.—El Paso 2008, orig. proceeding). In Armendariz, the candidate submitted

an application and a petition, both of which indicated his desire to run for “Presidio 

County Commissioner Precinct #2.” Id. at 93. Unfortunately, the office of County 

Commissioner Precinct 2 was not up for election, and nowhere in his application did 

he demonstrate any intent to run for the office that was the subject of the upcoming 

election—Presidio County Commissioner Precinct 1. Id. Although a reasonable 

inference existed from the surrounding circumstances that the candidate was simply 

mistaken in identifying the office sought and actually sought ballot access for 

Precinct 1, an equally reasonable inference existed that he truly sought ballot access 

for Precinct 2 but was mistaken as to when the office was subject to election. See id.

Absent any means of identifying the mistake, the error was fatal. See id.
17

Here, there can be no such confusion. As noted above, the circumstances

surrounding Reed’s filing of her application admit of no other interpretation but that 

she sought ballot access for an office for which the District—and no other political 

subdivision—intended to conduct a general election. She received, filled out, swore

to, and filed her application at the administration offices and in the presence of the 

assistant elections administrator for the District. And in notarizing her oath, the same 

assistant elections administrator confirmed that Reed sought ballot access for a place 

on a board of trustees that just happened to match one of the places subject to the

upcoming May 7 general election, the administration of which was expressly included 

within her job title. In the letter rejecting Reed’s application, even the District’s own 

counsel admitted that District officials “considered accepting [Reed’s] application, 

interpreting that [she had] intended to file in the Burleson ISD General Election 

based on all the circumstances, including the fact [that she had] submitted the

application to Burleson ISD officials.” Such an interpretation is the only reasonable 

one under the circumstances.

But the District chose to behave unreasonably, insisting that the ballot

application process is really a “gotcha” trap, rather than one designed by the 

legislature to achieve a “just and reasonable result.” See Bell, 91 S.W.3d at 785 

(applying language of Code Construction Act to residence-disclosure sections of 

Election Code). In sum, no reasonable elections administrator for the District could 

have notarized Reed’s oath declaring her candidacy for “the office of School Board 
18

Trustee Pl. 1” under the surrounding circumstances and lawfully rejected her 

application. Accordingly, the District wrongfully rejected Reed’s application and 

excluded her from the May 7 ballot and thereby unlawfully certified the incumbent

Place 1 member unopposed for reelection, declared him officially reelected, and

canceled the May 7 general election.

V. Is There a Remedy?

The District argues that Reed has filed her petition for mandamus far too late 

to appear on the ballot for the May 7 election. We agree.11 The time for mailing

absentee ballots began on March 23:

[T]he balloting materials for a voter who indicates on the application for 

a ballot to be voted by mail or the federal postcard application that the 

voter is eligible to vote early by mail as a consequence of the voter’s 

being outside the United States shall be mailed on or before the later of 

the 45th day before election day or the seventh calendar day after the 

date the clerk receives the application.

Tex. Elec. Code Ann. § 86.004(b). And the law disfavors judicial interference with an 

election that is already in progress. See Polk v. Davidson, 196 S.W.2d 632, 634 (Tex. 

1946) (orig. proceeding) (mooting appeal in ballot challenge when it would be “utterly 

impossible” to dispose of the case in time to print applicant’s name on the ballot in

time for absentee balloting to begin). Because the ballots for the May 7, 2022 election 

were due to be sent out before Reed’s challenge to her ballot rejection—indeed, even 

before the Board received and acted on the certification of unopposed candidates by 

11This particular mootness argument of the District is the only one with which 

we agree.
19

declaring their reelection and canceling the general election—this court is powerless 

to order her to be placed on the general election ballot. See In re Crenshaw, No. 05-17-

00330-CV, 2017 WL 1292013, at *1 (Tex. App.—Dallas Apr. 7, 2017, orig. 

proceeding) (mem. op.) (declining to order city secretary to place relator’s name on 

ballot when absentee balloting had already begun).

Even if the law allowed our intervention in this manner, there is no pending 

general election with which to interfere; the May 7 general election has been canceled. 

The District, without legal justification but relying solely upon its own determination 

that Reed’s ballot application was irredeemably defective, simply has declared the 

“unopposed” incumbent candidate for Place 1 “reelected” and thereby rendered the 

May 7 general election unnecessary. See Tex. Elec. Code Ann. § 2.053(a), (b).

Nevertheless, Reed is not without a remedy. Section 273.081 of the Election 

Code authorizes “appropriate injunctive relief” for a person “who is being harmed or 

is in danger of being harmed by a violation or threatened violation of this code” in 

order “to prevent the violation from continuing or occurring.” See id. § 273.081.

Indeed, we are tasked—when exercising equitable powers to resolve Election Code 

violations—to “balance competing equities.” In re Gamble, 71 S.W.3d 313, 317 (Tex.

2002) (orig. proceeding). This balancing must, by necessity in Reed’s case, rely on 

some amount of creativity. Because the District’s rejection of Reed’s ballot application 

violated the ballot access provisions of the code and continues to unlawfully harm

Reed by depriving her of the ballot access guaranteed thereby, we conclude that the 
20

District’s certification of the incumbent Place 1 candidate as unopposed, its 

declaration of his official reelection, and its cancellation of the May 7 general election

are all actions subject to the injunctive relief contemplated by Section 273.081.

Moreover, under these unique circumstances, because the District failed to

conduct a general election for the next term for Place 1 on the Board, the 

contemplated injunction will result in a vacancy at the end of its current term. See Diaz 

v. Valadez, 520 S.W.2d 458, 459–60 (Tex. App.—Corpus Christi–Edinburg 1975, no 

writ) (holding that school district’s failure to elect a successor to board of trustees

created vacancy subject to appointment pursuant to Education Code); Clark v. Wornell, 

65 S.W.2d 350, 351 (Tex. App.—Waco 1933, no writ) (holding that rural school 

district’s failure to elect a successor to an incumbent board member at the general 

election created a vacancy subject to appointment in accordance with statute); Tom v. 

Klepper, 172 S.W. 721, 723 (Tex. App.—El Paso 1915, writ ref’d) (holding that the

failure to elect county commissioner at general election resulted in vacancy subject to 

statutory appointment). Section 11.060(c) of the Texas Education Code provides for 

the remedy of a special election to fill the vacancy. See Tex. Educ. Code Ann. 

§ 11.060(c). Although the Education Code also empowers the Board to appoint 

someone to fill that vacancy, see id. § 11.060(a), (b), we are mindful that the Board’s

ability to fill Place 1 by appointment may merely perpetuate the injury already suffered 

by Reed and deprive her of the candidacy for which she legally qualified. Specifically, 
21

the District ignored its constituents12 and effectively “silence[d] the voices of the 

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

canceling the May 7 election. See Garcia, 2022 WL 130287, at *4. Further, the District 

ignored the training from the Secretary of State’s office13 (referred to above)—training 

that clarifies the ballot application requirements of the Election Code and 

demonstrates that Reed’s application complies with those requirements. We therefore 

have no confidence that the Board will not simply appoint the incumbent Place 1 

member in a bid to achieve through quasi-legal means what the District attempted to 

do through its rejection of Reed’s ballot application.

Accordingly, we enjoin the District from certifying the incumbent Place 1

candidate as unopposed for reelection and from declaring him reelected to a new term

and further order the District to conduct a special election to fill the vacancy resulting

therefrom upon the contemplated expiration of the current Place 1 term and at the 

earliest opportunity afforded by and in accordance with the relevant provisions of the 

12Six members of the public (including Reed and a member of the City Council 

of the City of Burleson) stood up at the BISD Board of Trustees meeting on 

March 28, 2022, and urged the Board to hold the general election on May 7. Board of 

Trustees, Burleson ISD, Official Minutes of March 28, 2022, https://meetings.

boardbook.org/Documents/CustomMinutesForMeeting/1384?meeting=518098.

13The first speaker at the Board meeting, in endorsing Reed’s placement on the

ballot and the non-cancellation of the May 7 election, specifically referred to this 

training and BISD’s participation in it. See Video of March 28, 2022 BISD Board 

Meeting, https://youtu.be/DuDJfX82ggA?list=PLEzoM98WAVX8zbeQxE4qUdk

u7ht4q5EcX (beginning at around 2:20).
22

Texas Election Code.

14 To effectuate this remedy, the applications of both Reed and

the incumbent Place 1 candidate are ordered “grandfathered” as having already been

filed for the special election unless expressly withdrawn in accordance with the 

Election Code. Finally, we observe that pursuant to Article XVI, Section 17 of the 

Texas Constitution, the incumbent Place 1 member will “hold over” in office until 

such time as the results of the special election produce a qualified successor for 

Place 1. See Tex. Const. art. XVI, § 17 (“[A]ll officers of this State shall continue to 

perform the duties of their offices until their successors shall be duly qualified.”); see

Plains Common Consol. Sch. Dist. No. 1 of Yoakum Cnty. v. Hayhurst, 122 S.W.2d 322, 326

(Tex. App.—Amarillo 1938, no writ) (“The purpose of the constitutional and 

statutory provisions requiring officers to hold over until their successors have 

qualified is to prevent vacancies in office and a consequent cessation of the functions 

of government. The constitutional provision is self-executing, and, like the similar 

provisions in the statutes, it is mandatory.” (quoting 34 Tex. Jur. 370)); Maddox v.

York, 54 S.W. 24, 25 (Tex. App.—Fort Worth 1899)15 (“Only the failure to elect or 

14We also reject the District’s argument that the fifty-day deadline in Election 

Code Section 141.034(a) bars Reed from seeking relief. By its very terms, that deadline 

applies to challenges to an application, not legal action pursued against a political 

subdivision because of its rejection of an application. Tex. Elec. Code Ann. 

§ 141.034(a); see Escobar, 917 S.W.2d at 410 (“[W]e conclude that [Section] 141.034 

implicates a judicial challenge brought by a contestant.”).

15Although not designated as such in the original West publication of the 

opinion, Maddox is an opinion from this court. See Dobkins v. Reece, 17 S.W.2d 81, 82 
23

appoint a successor would entitle the incumbent to so remain in office, in order to 

perform its duties as enjoined in the constitution.”), aff’d, 55 S.W. 1133 (Tex. 1900).

VI. CONCLUSION

Having found that Nona Reed has been harmed by the District’s unlawful 

rejection of her ballot application, we conditionally grant the petition for writ of 

mandamus. We enjoin the District from certifying the incumbent Place 1 candidate as 

unopposed for reelection and declaring him reelected to a new term and further order

the District to conduct a special election to fill the vacancy resulting therefrom in 

accordance with this opinion. A writ will issue only if the District fails to comply with 

these directives.

/s/ Wade Birdwell

Wade Birdwell

Justice

Delivered: May 4, 2022

(Tex. App.—Fort Worth 1929, writ ref’d) (referring to Maddox as an opinion “by this 

court”).