## IN THE SUPREME COURT OF TEXAS

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. 17-0052

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### L AURA 

### P RESSLEY 

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### G REGORIO 

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### ) C ASAR 

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4444444444444444444444444444444444444444444444444444 O N P ETITION FOR R EVIEW FROM THE C OURT OF A PPEALS FOR THE T HIRD D ISTRICT OF T EXAS

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### D AVID 

### R OGERS 

### , P ETITIONER 

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### G REGORIO 

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### ) C ASAR 

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4444444444444444444444444444444444444444444444444444 O N P ETITION FOR R EVIEW FROM THE C OURT OF A PPEALS FOR THE T HIRD D ISTRICT OF T EXAS

4444444444444444444444444444444444444444444444444444 PER CURIAM This appeal is from a summary judgment in an election contest f or a city council seat. The summary judgment declares the cont estee (the candidate who rece ived the most votes) the winnerof the election and sanctions the contestor (the losing candida te) and her attorney for bringing several frivolous claims. We must decide whether the sanctions awarded here were an abuse of discretion and whether the completion of the contested office’s term during this appeal renders the appeal of the underlying election contest moot. We conclude th at the appeal is moot to the extent it challenges the election results but that the award of sancti ons was an abuse of discretion. Without hearing oral argument, we reverse the court of appeals’ judgmen t affirming the sanctions award, vacate that award, and dismiss the appeal of the election conte st as moot. T EX
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. P. 59.1. Gregorio Casar and Laura Pressley finished first and second, re spectively, in the 2014 Austin City Council general election for the District 4 council seat. After Casar won the runoff election, Pressley petitioned the Texas Secretary of State for a manual r ecount. Of the 4,417 ballots cast, 3,937 were cast on the Hart Intercivic eSlate System, an electr onic voting system certified by the Secretary. See Andrade v. NAACP of Austin , 345 S.W.3d 1, 4-6 (Tex. 2011) (explaining Secretary of State’s certification procedure under Chapter 122 of the Ele ction Code). The Hart eSlate System is a paperless direct recording electronic machine (DRE), which as the name implies directly stores the individual votes and vote totals electronically within the machine. Id . A voter using the eSlate makes his or her choice in each race on the ballot and those ch oices are then presented on a summary screen before the vote is cast. Id . at 6. The voter casts his or her ballot by pressing a button , and the eSlate stores an individual “cast vote record” (CVR), refle cting the individual’s votes in each race as they appeared on the summary screen. Id

. For the manual recount, the CVR for each voter was printed and counted by hand. Pressley and her chosen poll watchers witnessed the printing of the CVRs and the manual recount. The

2manual recount found no discrepancies with the original canvass and confirmed the original results: Casar won by 1,291 votes. Pressley next filed an election contest, arguing that CVRs are not “ballot images” or “images of ballots cast,” as the Election Code requires. T EX
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. C ODE § 128.001(a)(2). She also asserted that election officials committed criminal violation by prevent ing poll watchers from observing the retrieval, sorting, and copying of CVRs, and that the election results were unknowable because of voter disenfranchisement from the consolidation of voting locat ions and numerous election irregularities. These alleged irregularities included: failure to print zero or tally tapes (tapes used to verify that election machines have zero votes when the elect ion starts and what the vote count is at the end); broken seals on election machines; tally machines left open for extended periods of time; statistical anomalies; invalid or corrupt mobile ballot boxes ( memory cards with votes from polling locations that are inserted into Travis County’s tabulation com puter for calculating vote totals); and election officials preventing poll watchers from observing cert ain recount activities. After substantial discovery, Casar filed traditional and no-evidence summary judgment motions and moved for Chapter 10 sanctions against Pressley and her attorne y, David Rogers, for pleadings that lacked legal or factual support. See T EX
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. C ODE §§ 10.001–.006. The trial court granted Casar’s no-evidence summary judgment mo tion and, after a hearing, awarded sanctions against Pressley and Rogers—$40,000 against P ressley; $50,000 against Rogers; and $7,794.44 against Pressley and Rogers for Casar’s expenses. The trial court held that several of Pressley’s claims—voter disenfranchisement, election irregul arities, and criminal violations by election officials—had no legal or factual basis. Additionally , the trial court awarded contingent

3appellate fees against both Pressley and Rogers in the event of an unsuccessful appeal. Pressley and Rogers each appealed. In the court of appeals, Pressley argued that the trial court e rred by granting the summary judgment motion and by awarding sanctions. She claimed, among other things, that CVRs do not comply with the Texas Constitution’s ticket-numbering requireme nt or the Election Code’s ballot requirements. See T EX
. C ONST . art. VI, § 4 (requiring that “the vote shall be by ballot, an d the Legislature shall provide for the numbering of tickets”). Rega rding the sanctions, Pressley and Rogers argued that the trial court abused its discretion in fin ding their conduct sanctionable and in finding a direct nexus between the sanction and the allegedly s anctionable conduct. They also claimed that the sanctions were excessive. The court of appeals affirmed on all issues. ___S.W.3d ___ (Te x. App.—Austin 2016). It held that the trial court did not abuse its discretion or impos e excessive sanctions, that the Secretary of State had the discretion to “adopt the use of CVRs as ballot images,” and that this use did not violate the Constitution. Id. at ___. Pressley and Rogers appealed again, with Pressley com plaining about the election and sanctions and with Rogers limiting his c omplaints to the sanctions awarded against him. Meanwhile, Casar was reelected and began his second term in off ice on January 6, 2017. Because Pressley’s pe tition for review in this Court was filed after the completion of Casar’s contested term, the first issue we must decide is whether the e lection contest is now moot. Pressley argues that it is not because her case meets one of the excepti ons to the mootness doctrine: capable of repetition yet evading review. General Land Office v. OXY U.S.A., Inc. , 789 S.W.2d 569, 571

4(Tex. 1990). She argues that holding her case to be moot would make raising important constitutional and statutory election issues nearly impossible in races like her own where the election cycle is only two years. Casar responds that this election contest is moot because no re medy exists to contest an expired term of office. He further argues that Pressley’s asse rted capable-of-repetition exception to mootness does not apply because there is no evidence of the exception’s two requirements: (1) that the challenged action was too short to be fully litigated before the action ceased or expired and (2) that a reasonable expectati on exists that Pressley will be subjected to the same action again.
Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001). We agree that the election contest is moot now that the term in question has expired and no exception to the mootness doctrine applies. Heckman v. Williamson Cty. , 369 S.W.3d 137, 162 (Tex. 2012). “Put simply, a case is moot when the court’s acti on on the merits cannot affect the parties’ rights or interests.” Id . Pressley asserts that the capable-of-repetition-yet-evading- review exception applies yet has failed to show either that she could not have litigated her election contest before the two-year term expired or that she has a reasonable e xpectation that she will be subjected to the same action again. See Williams , 52 S.W.3d at 184. Indeed, in this Court alone Pressley filed eight motions of extension of time and took over a year to file all her briefing. A similar lack of urgency is reflected in the cour t of appeals. Election contest s are time-sensitive, but Pressley still must demonstrate that she could not fully litigate the case wit hin the given term of office. She has not done that here.

5Even though the election contest is moot, we must still decide whether the trial court abused its discretion when sanctioning Pressley and her attorney for b ringing frivolous claims. Pressley argues that Casar did not overcome the presumption that her all egations were made in good faith. See Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007). Pressley submits that she p rovided ample evidentiary support for her allegations, which should have surv ived Casar’s summary judgment motions, let alone his sanctions motion. Her evidence included : an expert report, poll watcher affidavits, the Travis County Clerk’s deposition, incomplete ze ro tapes, audit logs of the tally computer, the tally manual, and a Judge Booth Controller envelo pe with instructions not to print tally/results tapes. Pressley concludes that, in light of this evidence, the trial court abused its discretion in awarding sanctions. Rogers argues that the sanctions against him were improper for several additional reasons. First, he asserts that he was not the attorney-in-charge during Pressley’s fifth and sixth amended pleadings—the pleadings that are the basis of the sanctions her e—and, therefore, was not responsible for the claims asse rted therein. Second, he argues that the trial cour t’s final judgment contained a Mother Hubbard clause that resolved all issues betw een the parties and was final and appealable. Rogers submits that this was done on the record in open court and, hence, constitutes a Rule 11 agreement that foreclosed the subsequent sanctions. See T EX
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. P. 11. Third, he complains about the conditional appellate sanctions awarded her e because Casar offered no evidence to support them. Chapter 10 states that sanctions are only for amounts “incurred,” not amounts that might speculatively be incurred later. See T EX
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. C ODE 10.004(c)(3). Moreover,

6Rogers submits that Casar’s sworn campaign finance reports subs equently submitted to the City of Austin demonstrate that he did not actually incur the amounts a warded here. Casar responds that Pressley’s claims were based on suspicion, speculation, and surmise about electronic voting and government officials. He notes tha t the Secretary of State’s Director of Elections twice rejected Pressley’s allegations and explained t hat the recount was properly performed. Moreover, the Secretary of State rejected Pressley’ s interpretation of what her poll watchers could observe and told Pressley that no crime had occu rred. Casar concludes that sanctions were necessary here to deter repetition of these types of claim s, which could be filed in every election. As to Rogers, Casar submits that his attorney-in-cha rge argument was not raised in the trial court and was therefore waived, that the Mother Hubbard clause was not a Rule 11 agreement, and that regardless of this clause, the trial court retained plenar y power to modify its judgment for thirty days and did so here. See T EX
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. P. 329b(d), (e). Chapter 10 of the Civil Practice and Remedies Code permits sanc tions for pleadings that are filed for an imprope r purpose or that lack legal or factual sup port. Nath v. Tex. Children’s Hosp. , 446 S.W.3d 355, 362 (Tex. 2014). Pleaded claims must be warran ted by existing law or a nonfrivolous argument to change existing law. T EX
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. C ODE § 10.001(2). Each factual contention must have or be likely to receive evidentiar y support after a reasonable opportunity for discovery. Id. § 10.001(3). Chapter 10 sanction awards are reviewed for an a buse of discretion. Low , 221 S.W.3d at 614. A trial court abuses its discretion if it acts without reference to any guiding rules and principles such that the ruling is arb itrary or unreasonable. Cire v. Cummings , 134 S.W.3d 835, 838-39 (Tex. 2004). But a trial court “has n o ‘discretion’ in

7determining what the law is or applying” law to facts. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992). Thus, the trial court abused its discretion here if it awarded sanctions for baseless pleadings if those pleadings, in fact, have at least some legal or factua l basis. Pressley contends that the results of the contested election we re unknowable because of several irregularities and statutory and constitutional violati ons. The trial court sanctioned Pressley and Rogers for three claims in which they alleged: (1) election irregularities, (2) criminal violation by election officials, and (3) vot er disenfranchisement. We co nsider each in turn. The claimed election irregularities included statistical anomal ies; invalid/corrupt mobile ballot boxes; broken seals on the election machines; tally comp uters that were left open; the failure to print zero or tally tapes; and poll watchers being prevented from observing the retrieval, sorting, and copying of CVRs. Pressley’s statistical-anomalies claim do es not demonstrate that the election outcome here was incorrect or unknowable, but no one disputes t hat her analysis was based on actual data. There is nothing frivolous about presenting a statistica l analysis showing that the results here were unlikely as persuasive support for her other claims. The claim had a factual basis and, hence, the trial court abused its discretion in sanctioning Pressley f or it. For Pressley’s invalid/corrupt mobile ballot box claim, she had a computer-science and data expert who testified that he f ound at least nine corruption err ors when Travis County downloaded the CVRs from the polling locations. According to the expert, these corrupted memory cards (which apparently are inserted into Travis County’s tabulation compute r for downloading) “could damage the credibility of the vote counting process.” This is some ev idence to support her allegation. Casar responds that this testimony is not admissible evidence. But e ven if Casar is right, that is not the

8Chapter 10 standard. Pressley needs only to have some factual basis for her claim to avoid Chapter 10 sanctions, not evidence that is ultimately admissible. She has some evidence here. The trial court, therefore, abused its discretion in sanctioning Pressley for this claim. Pressley also claims that seals on the election machines were b roken and that the tally computers were left open for extended periods of time, both of which brought the security and accuracy of the vote count into question. This, according to P ressley, is part of the reason that the true outcome of the election is unknowable. As the court of ap peals points out, Pressley did not present evidence that anyone accessed the tally computer or ele ction machines or caused any votes to be illegally counted or not. ___ S.W.3d at ___. But that, again, is not the Chapter 10 standard. Pressley had evidence for these claims. Casar does not dispute that the seals were broken; he just argues that the seals were broke n in the normal course of the e lection and were handled properly; Pressley argued that the Tally Audit Log showed that the tabula tion computer was left open. The Travis County Clerk disagreed that the Tally Audit Log showed t his, but the Clerk’s opinion is not dispositive and does not even explain why Pressley is wrong. A s the court of app eals also noted, the Clerk “did not know if the audit log was correct as to thos e entries” and “was uncertain of what the coding on the audit log meant.” Id. How the Clerk’s uncertain opinion makes Pressley’s claim wrong, let alone frivolous, is unclear. Regardless, Pressley d id not need to be right or produce enough evidence to prevail on her entire suit to avoid sanction s. These claims have some evidentiary support and that is enough to make them non-frivolo us. Thus, the trial court abused its discretion in sanctioning Pressley for these claims.

9Next, the trial cour t sanctioned Pressley for alleging that the County failed to print zero or tally tapes on election day. Her allegation is based on her as sertion that the Election Code requires that full zero and tally tapes be printed on election day and, hence, the abbreviated tapes that the County printed on election day are not “zero” or “tally” tapes per the Election Code. Pressley produces other evidence to support her allegation that no such tapes were printed, but this argument alone is enough to avoid sanctions. This is a dispute about wh at constitutes zero and tally tapes under the Election Code. Pressley claims that only full tapes are “tapes” under the Code. She may be wrong, but her argument that abbreviated tapes do not meet t he Election Code’s requirements and, hence, that no tapes were printed on election day is not f rivolous. Rather, this is a dispute about whether abbreviated tapes are tapes at all under the Election C ode. Thus, the trial court abused its discretion in holding that this claim had no legal basis. Lastly, Pressley argues that her poll watchers were prevented f rom observing the retrieval, sorting, and copying of CVRs. She claims that under sections 3 3.056 and 213.013 of the Election Code, her poll watchers should have been allowed to view those activities. T EX
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. C ODE §§ 33.056(a), 213.013(h). Section 213.013(h) states that “[e]a ch person entitled to be present at a recount is entitled to observe any activity conducted in connec tion with the recount.” Id. § 213.013(h). Given that the retrieval, sorting, and copying o f CVRs are arguably “activit[ies] conducted in connection with the recount,” Pressley’s legal cla im is plausible. The mere fact that the Secretary of State disagreed with Pressley’s interpretation of the Election Code does not make Pressley’s claim here frivolous. It begs the question to assum e that Pressley’s legal argument is baseless because the Secretary of State disagrees when whether the Secretary of State’s

10interpretation is correct is exactly what she is disputing. Pr essley’s poll watchers were not allowed to observe certain activities that were arguably “in connection with the recount.” Id . This claim might be a losing one, but it is not frivolous. Thus, the tria l court abused its discretion in holding that this claim had no legal or factual basis. The trial court also sanctioned Pressley for alleging that elec tion officials committed criminal violations by preventing her poll watchers from observing the r etrieval, sorting, and copying of CVRs. Section 33.061 of the Election Code provides that an off icial who knowingly prevents a watcher from observing an activity that the watcher is entitled to observe commits a Class A misdemeanor. Id . § 33.061. This claim, therefore, rises and falls on whether her poll watchers were entitled to observe those activities. Because that claim, desc ribed above, is not frivolous, neither is her assertion that preventing her poll watchers from observi ng those activities was a criminal violation. Thus, the trial court abused its discretion in hold ing that this claim lacked any legal or factual basis. Finally, the trial court sanctioned Pressley for making claims of voter disenfranchisement. Through her first five pleadings, she alleged illegal voter dis enfranchisement in the runoff election based on voting-location consolidation. She claimed that over 1,000 voters were potentially disenfranchised, which she calculated by counting voters who hi storically had voted but did not vote in her election. Pressley claimed that fewer voters participated in the runoff election than was the historic norm; she then based her disenfranchisement claim on that diffe rence in voters. She is probably wrong about the cause of this drop-off, but her calculated diff erence is some evidence to support her

11claim, and it gave her reason to think that her claim might rec eive evidentiary support after discovery. See T EX
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. C ODE § 10.001(3). Pressley, however, dropped the claim from her sixth pleading, which was the first pleading she filed after receiving discovery from the County. In other words, Pressley realized after discovery that despite her calculated voter drop-off, insufficient evidence existed to support her disenfranchisement claim. That she could not name a single disenfranchised voter at the time of her initial pleadin gs does not make those pleadings frivolous. Because Pressley had at least some reason to think that discovery might reveal evidence to support her claim and because she dropped the claim after di scovery revealed that not to be the case, the trial court abused its discretion in sanctioning Pres sley and Rogers for exploring the disenfranchisement claim. Pressley’s claims individually and collectively might have been losing ones, but they were not frivolous. The election activities that Pressley complains about could create a perception of impropriety, and such impropriety might make the election resul ts unknowable, which is precisely her argument. Her evidence might not have been strong enough t o win on the mer its, but she had at least some evidence and legal basis for her claims. For tha t reason, the trial court abused its discretion in sanctioning Pressley and Rogers for making these non-frivolous arguments, and the court of appeals erred in affirming the sanctions. Without hearing oral argument, we reverse that part of the cour t of appeals’ judgment affirming the award of sanctions against Pressley and Rogers, r ender judgment vacating that award, and dismiss the appeal of the election contest as moot. T EX
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. P. 59.1. Opinion Delivered: January 25, 2019

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