Concurring Opinion Filed March 6, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-01333-CV

IN RE BRUCE BISHOP, ASHLEY HUTCHESON, DALLAS COUNTY 

REPUBLICAN PARTY, AND MISSY SHOREY, Relators

Original Proceeding from the 68th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-18-14298

CONCURRING OPINION

Opinion by Justice Molberg

I concur in the withdrawal of the panel opinion in this case. I write separately, 

however, to respond to Justice Schenck’s dissent, which—although acknowledging 

the power of the Court to withdraw the panel opinion under Texas Rule of Appellate 

Procedure 42.1(c)—takes exceptional license to expound on the merits of the 

underlying issue and, in doing so, wrongly and injuriously interprets the Texas 

Election Code. I also write to address Justice Bridges’ dissent, which joins in Justice 

Schenck’s erroneous conclusion.
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I.

Relators sought a writ of mandamus directing the trial court to vacate its noanswer default judgment declaring Ashley Hutcheson, the Republican candidate for 

Dallas County Justice of the Peace, Precinct 2, Place 1, in the November 6, 2018 

general election, ineligible for the office because she did not reside in the district as 

required by the Texas Election Code. See TEX. ELEC. CODE § 141.001(a)(5).

Margaret O’Brien, Hutcheson’s Democratic general election challenger for 

the justice of the peace position, filed the underlying lawsuit challenging 

Hutcheson’s residency on September 19, 2018. She sought (1) a declaratory 

judgment that Hutcheson was ineligible to assume office should Hutcheson win the 

upcoming November 6 general election, and (2) injunctive relief enjoining election 

officials from “certifying [her] as the winner of the general election,” “signing a 

Certificate of Election certifying [her] name as the Justice of the Peace, Precinct 2, 

Place 1,” and “administering an oath of office to [her]” in the event Hutcheson 

should win.1

Hutcheson failed to timely answer and, on October 26, 2018, the district court 

signed a default judgment granting O’Brien the relief she requested. Significantly, 

 

1

In O’Brien’s earlier challenge to Hutcheson’s right to appear on the general election ballot, this Court 

noted that the deadline for printing ballots was imminent and therefore declined to take any action that 

would interfere with the orderly process of the election. In re O’Brien, No. 05-18-00984-CV, 2018 WL 

4141484, at *2 (Tex. App.—Dallas Aug. 29, 2018, orig. proceeding) (mem. op.).
–3–

the judgment was signed prior to the general election that would determine which 

candidate for the office was the victor.

This original proceeding for a writ of mandamus followed. It sought vacatur 

of the district court’s no-answer default. On December 17, 2018, a panel of the 

Court conditionally granted the writ.

II.

In concluding the trial court’s default judgment was void and conditionally 

granting relators’ petition as a result, the panel characterized O’Brien’s suit as an 

“election contest.” The panel correctly noted that default judgments in such 

proceedings are expressly prohibited by section 221.004 of the Texas Election Code. 

See TEX. ELEC. CODE § 221.004 (“A default judgment may not be rendered in an 

election contest.”).2 In conditionally granting the writ and directing the trial court to 

vacate the underlying judgment, the panel relied on this no-default provision. 

O’Brien’s suit, however, was not an election contest, and the panel’s reliance on the 

no-default provision—applicable only to election contests—was erroneous. 

An election contest is not an ordinary lawsuit but is a special legislative 

proceeding to provide a remedy for elections tainted by fraud, illegality, or other 

irregularity. Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999); Rossano v. 

Townsend, 9 S.W.3d 357, 361 (Tex. App.—Houston [14th Dist.] 1999, no pet.) 

 

2 Section 221.004 is a part of title 14 of the election code, which relates exclusively to election contests.
–4–

(citing Duncan v. Willis, 302 S.W.2d 627, 630 (Tex. 1957)). As this Court has 

recognized, “[e]lection contests are creatures of statute, and the power of a trial court 

to consider such contests exists only to the extent authorized by statute.” Nichols v. 

Seei, 97 S.W.3d 882, 883 (Tex. App.—Dallas 2003, no pet.); see also De La Paz v. 

Gutierrez, No. 13-18-00377-CV, 2018 WL 5289553 (Tex. App.—Corpus Christi–

Edinburg Oct. 25, 2018, no pet.) (mem. op.); City of Houston v. Bryant, 516 S.W.3d 

47, 51 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

Initially, an election contest may not be filed “earlier than the day after 

election day” or “later than the 30th day after the date the official result of the 

contested election is determined,” unless it is required to be filed earlier under other 

provisions of section 232.008. See TEX. ELEC. CODE § 232.008(a)–(c). Simply, “[a] 

party cannot file such a suit until after the election.” Blum, 997 S.W.2d at 262. 

O’Brien’s suit was filed substantially before the general election and, in fact, was 

decided before election day. It was not, nor could it have been, a viable election 

contest under these circumstances.

Further and fundamentally, in an election contest, a court is limited to 

addressing the specific areas set forth in the election code. See, e.g., City of Granite 

Shoals v. Winder, 280 S.W.3d 550, 557–58 (Tex. App.—Austin 2009, pet. denied). 

The narrow purpose of an election contest is to determine “whether the outcome of

the contested election, as shown by the final canvass, is not the true outcome.” TEX.
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ELEC. CODE § 221.003(a). In making this determination, a tribunal is restricted to 

ascertaining whether:

(1) illegal votes were counted; or

(2) an election officer or other person officially involved in the 

administration of the election:

 (A) prevented eligible voters from voting;

 (B) failed to count legal votes; or

 (C) engaged in other fraud or illegal conduct or made a mistake.

Id. O’Brien’s residency challenge to Hutcheson’s candidacy implicated no 

permissible ground for an election contest. “Therefore, a challenge that does not 

concern whether the outcome of the election was incorrect for one of the four reasons 

listed in the statute is, by definition, not an election contest.” Winder, 280 S.W.3d 

at 557. 

Justice Schenck’s dissent incorrectly assumes that the term “election contest” 

is undefined by title 14, and it is this mistaken assumption that underlies his dissent’s 

disregard of the statute itself and controlling precedent. While it is true that title 14 

includes no separate definitional provisions, section 221.003 provides an 

unequivocal answer to the meaning of “election contest.” An election contest is an 

action “to ascertain whether the outcome of the contested election . . . is not the true 

outcome because” “illegal votes were counted”; or “an election officer or other 

person officially involved in the administration of the election . . . prevented eligible 

voters from voting,” “failed to count legal votes,” or “engaged in other fraud or 
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illegal conduct or made a mistake.” TEX. ELEC. CODE § 221.003(a). Like the court 

in Winder, I conclude that unless one of these grounds forms the basis of the lawsuit, 

it is not an election contest within the meaning of title 14. Winder, 280 S.W.3d at 

557.

Nevertheless, Justice Schenck’s dissent necessarily misconstrues title 14 by 

asserting that the general provisions of chapter 221, in some unexplained way,

operate extraterritorially to encompass disputes over the entire electoral process, and 

not just those delineated in section 221.003(a) of title 14. To reach this conclusion, 

the dissent disregards controlling precedent—of the supreme court and this Court—

that an election contest is a “special proceeding,” Blum, 997 S.W.2d at 262, that 

operates “only to the extent authorized by statute,” Nichols, 97 S.W.3d at 883. 

Ignoring recent supreme court and appellate court case law established after 

the passage of the election contest provisions of our current election code, Justice 

Schenck boldly asserts the panel opinion was “in keeping with long and unbroken 

precedent of the Texas Supreme Court,” yet cites only one supreme court case, 

Dickson v. Strickland, 265 S.W. 1012 (Tex. 1924), to support his flawed proposition 

that provisions of title 14 emanate from and beyond the boundaries of title 14 to form 

some sort of penumbral overlay on the entire election code. Dickson pre-dates our 

current statutory scheme by more than 60 years, and it does not support the 

application of the term “election contest” that governs us today. 
–7–

Justice Schenck’s dissent also cites Bickley v. Lands, 288 S.W. 514 (Tex. 

App.—Dallas 1926, no writ), as support. Yet, Bickley, like Dickson, pre-dates our 

current statutory scheme by six decades, and the action in Bickley occurred after the 

vote in question and did not involve the no-default provision of our current law. Ellis 

v. Vanderslice, 486 S.W.2d 155 (Tex. App.—Dallas 1972, no writ), also pre-dates 

current law and involved a local option election governed by state liquor laws. Id. 

at 156–57. It did not address the question presented here. Polk v. Vance, 244 S.W.2d 

869 (Tex. App.—Dallas 1951, no writ), also pre-dates the current legislative 

enactment and did not address the issue at hand. Id. at 870. None of these cases has 

anything to do with the question before us, namely: Does the no-default provision 

of title 14 apply to suits that are not subject to title 14? Justice Bridges’ dissent 

likewise ignores controlling precedent. His dissent cites not one case that post-dates 

the enactment of our current law. Strikingly, both dissents ignore every authoritative 

pronouncement issued after the enactment of our current code provisions governing 

election contests. All in all, both Justice Schenck’s and Justice Bridges’ dissents 

manifest a lack of fidelity to principles of statutory construction, higher court 

authority, our precedent, and the record—the latter of which reveals that no party in 

this case argued that the no-default provision of title 14 applied in these 

circumstances.

Both dissents disregard the statute. They fail to read title 14 as a whole, which 

makes clear that an “election contest” is an umbrella term used to describe five 
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specific types of contests recognized in title 14. An election contest is either a 

“contest for office” under chapter 232, a “contest on [a] measure” under chapter 233, 

a “contest for state senator or representative” under chapter 241, a “contest for 

constitutional executive office” under chapter 242, or a “contest for presidential 

electors” under chapter 243. Chapter 221 (“General Provisions”), contained in 

subtitle A, applies to all five types of election contests. The state senate and house 

are vested with exclusive jurisdiction (jointly or separately, depending upon the 

nature of the contest) over contests involving certain general and special elections; 

the governor has exclusive jurisdiction over contests involving presidential electors; 

and the district courts have exclusive jurisdiction over all other contests for office, 

as well as jurisdiction over contests on non-advisory measures. TEX. ELEC. CODE § 

221.002(a)–(c).

3

 

Subtitle B of title 14, which consists of chapters 231, 232 and 233, provides 

procedures and requirements for election contests (whether for office or on a 

measure) filed in the district court. Each succeeding chapter relating to the various 

types of contests, found in Subtitle C (“Contests in Other Tribunals”), provides 

specific procedures and requirements for the resolution of such contests. For 

 

3 A full reading of title 14 reveals the district court has exclusive jurisdiction over all election contests 

relating to ballot measures that are not for advisory purposes only, and all contests for office, other than for 

general elections involving constitutional executive offices, general and special elections for state senator 

and state representative, and elections for presidential electors. Expressly excluded from title 14’s purview 

are general and special elections for the offices of U.S. Senator and Representative, presidential primary 

elections, and elections on measures that are merely advisory. TEX. ELEC. CODE. § 221.001(1)–(3).
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example, in a contest for state senator or representative, a person contesting an 

election must file “the petition with the secretary of state not later than the seventh 

day after the date the official result . . . is determined,” but not earlier than “the day 

after the date of the . . . election.” Id. § 241.003(b), (c). General election contests 

for constitutional executive offices must comply with the deadlines set forth in 

chapter 241. Id. § 242.002(a). Contests for presidential electors must be filed with 

the secretary of state “not later than the 10th day after the date the official result of 

the . . . election is determined,” but not earlier than “the day after the date of the . . . 

election.” Id. § 243.003(b), (c). 

The term “election contest” is clearly defined in title 14, and a “contest for 

office” is not something apart from an “election contest,” as Justice Schenck’s

dissent necessarily implies. A contest for office is an election contest.

Neither by timing nor subject matter was the underlying action an election 

contest. O’Brien is thus correct that the panel erred in concluding her suit was an 

election contest and relying on the no-default provision of title 14 of the election 

code to order the trial court to vacate the default judgment. Rather, O’Brien’s was 

a typical civil action seeking declaratory and injunctive relief to which the no-default 

provision of section 221.004 is inapplicable.4

 

4

I likewise do not endorse Justice Schenck’s conclusion that the issue before us is moot because of the 

parties’ resolution, but I need not address it in detail here. It is noteworthy, however, that Justice Schenck 

concludes an exception to the mootness doctrine does not exist because the dispute is not likely to recur 

between the same parties. Assuming this is a requirement for application of the exception to the mootness 
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III.

While the panel relied on an incorrect underpinning for its decision, the result 

it reached in conditionally granting the writ nevertheless was correct for the 

following reason: the trial court’s default judgment granting O’Brien’s request for 

declaratory and injunctive relief was void because the court’s final determination 

came before the matter was ripe. 

Ripeness implicates subject matter jurisdiction. Perry v. Del Rio, 66 S.W.3d 

239, 250–51 (Tex. 2001) (orig. proceeding); Patterson v. Planned Parenthood, 971 

S.W.2d 439, 442 (Tex. 1998). While a premature claim may become ripe as a result 

of a subsequently occurring event (just like mootness may develop for the same 

reason), Perry, 66 S.W.3d at 251, O’Brien’s claims never became ripe, and therefore 

justiciable, prior to their adjudication by the trial court. “The ripeness doctrine 

serves to avoid premature adjudication.” Patterson, 971 S.W.2d at 442; see also

Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000).5

 

doctrine, the reality is general election cases like this one are almost always between or involve the 

Republican and Democratic parties, despite the names of the candidates.

5

In theory, O’Brien’s claims against Hutcheson might have ripened once the election was completed, 

had her claims remained pending and not been adjudicated in advance of the election. As it turns out, those 

claims nevertheless would have become moot because O’Brien won the election. It is notable, however, 

that had Hutcheson won the election, O’Brien’s suit, if not amended, would face the challenge that O’Brien 

lacked standing. See Norville v. Parnell, 118 S.W.3d 503, 504 (Tex. App.—Dallas 2003, pet. denied) 

(losing general election candidate lacks standing to challenge winner’s certification for office on 

ineligibility grounds). Despite this, Justice Bridges’ generalized intimation that challenges based on 

residency do not survive an election is wrong. See, e.g., McDuffee v. Miller, 327 S.W.3d 808 (Tex. App.—

Beaumont 2010, no pet.) (challenge to voter residency in an election contest, pursuant to Texas Election 

Code section 221.003(a)); State v. Wilson, 490 S.W.3d 610 (Tex. App.—Houston [1st Dist.] 2016, no pet.) 

(challenge to residency of elected candidate in quo warranto proceeding); see also TEX. CIV. PRAC. & REM.

CODE §§ 66.001–.003 (governing quo warranto proceedings).
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At the time the judgment was signed, O’Brien’s claims had not matured. If 

O’Brien was entitled to the relief she sought, it clearly was contingent on the victory 

of her opponent in an election that had yet to occur. When an injury is contingent 

on uncertain future events and the injury itself is only hypothetical and may not occur 

at all, the court lacks jurisdiction to decide the matter. Gibson, 22 S.W.3d at 852.6 

The case before us is exactly the type of case for which the ripeness doctrine was 

intended. Thus, the trial court was without jurisdiction over O’Brien’s claims at the 

time it signed the no-answer default judgment.7

 

6 The ripeness analysis may permit a party to demonstrate a concrete injury “is likely to occur” and 

thereby survive a jurisdictional challenge, Gibson, 22 S.W.3d at 852, but there is no suggestion in the record 

that Hutcheson was likely to win the upcoming election or that her swearing-in was imminent. In other 

words, there was no direct or immediate threat of the harm complained of by O’Brien. At the time the trial 

court adjudicated her claims, it was only speculative that an injury would occur. Id.

7 Although the panel’s decision turned on the erroneous application of the no-default provision of title 

14, Justice Bridges theorizes that “[a]rguably, the case was moot from the moment O’Brien filed her petition 

in district court because the election process had already begun.” What Justice Bridges fails to note, 

however, is that O’Brien’s suit sought no relief affecting the election process. Indeed, her previous action 

seeking that relief had been dismissed as moot. In re O’Brien, 2018 WL 4141484, at *2. Rather, O’Brien’s 

current action sought relief based on events that might occur after the election, namely the certification or 

swearing-in of her opponent. Thus, since the relief sought was based on an unknown future outcome, it is 

ripeness, not mootness, that is implicated here. What either dissent fails to acknowledge, however, is that 

O’Brien faced a jurisdictional impediment at every turn. If she sought to remove Hutcheson from the ballot 

based on residency, the case would be moot because of timing, which is what we determined in O’Brien’s

prior action; if she sought in a pre-election suit to bar her opponent from taking office in the event her 

opponent won (which is what she sought here), her action would be unripe; and, if her opponent had won 

and O’Brien had challenged Hutcheson’s certification or swearing-in based on residency, then O’Brien 

would arguably lack standing to do so. See Norville, 118 S.W.3d at 504. Thus, if there is an arguable 

alternative to the ripeness analysis, it is one of standing, not mootness. The panel erred in basing its 

determination on the inapplicable no-default provision of title 14, rather than on the proper and applicable 

jurisdictional bar. By doing so, the panel opinion created significant practical mischief separate and apart 

from its legal misinterpretation. By removing the default judgment option from a trial court’s arsenal, the 

panel opinion would insure that many meritorious election-related cases to which there is no legitimate 

defense would go forward and instill even more uncertainty into the election process.
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IV.

A judgment rendered without jurisdiction is void. Browning v. Placke, 698 

S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (per curiam) (citing Austin Indep. 

Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973)); see also Gulf C.&S.F. 

Ry. Co. v. Rawlings, 16 S.W. 430, 431 (Tex. 1891). Mandamus will lie to vacate, 

set aside or prevent the enforcement of a void judgment or order. See Dikeman v. 

Snell, 490 S.W.2d 183, 186 (Tex. 1973) (orig. proceeding); State v. Ferguson, 125 

S.W.2d 272, 274 (Tex. 1939) (orig. proceeding); see also In re Florance, 377 

S.W.3d 837, 840 (Tex. App.—Dallas 2012, orig. proceeding). Generally, 

mandamus relief is appropriate “only if the court clearly abused its discretion and 

the party has no adequate remedy by appeal.” In re Sw. Bell Tel. Co., 35 S.W.3d 

602, 605 (Tex. 2000) (orig. proceeding). Signing a void order is an abuse of 

discretion. Id. If the challenged order is void, the relator need not show he or she 

has no adequate appellate remedy. Id.; In re Vaishangi, Inc., 442 S.W.3d 256, 261 

(Tex. 2014) (orig. proceeding) (per curiam). Accordingly, relators were entitled to 

relief on this basis, but not on the basis relied on by the panel.

181333CF.905

Joined by Burns, C.J., Osborne, Partida-Kipness, Reichek, Nowell, and Carlyle, JJ.

/Ken Molberg//

KEN MOLBERG

JUSTICE