COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00346-CV

CITY OF FOREST HILL, TEXAS, 

AND BRIGETTE MATHIS

APPELLANTS

V.

MICHIELLE BENSON, IN HER 

OFFICIAL CAPACITY AND 

INDIVIDUALLY

APPELLEE 

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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 153-290222-17

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OPINION

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I. INTRODUCTION

In this dual-office-holding case, Appellants City of Forest Hill and Brigette 

Mathis appeal a final declaratory judgment with permanent injunction and 

attorney’s fees in favor of Appellee Michielle Benson, in her official capacity and 

individually. The parties primarily dispute which of two election-code provisions 

applied after the Attorney General opined that Benson’s dual roles were 
2

incompatible—election code section 141.033, in which case Benson would retain 

the office that she applied for first (Forest Hill City Council, Place 3), or election 

code section 201.025, in which case Benson would retain the office that she was 

sworn into second (Forest Hill Library Board of Trustees, Place 5). See Tex. 

Elec. Code Ann. §§ 141.033(a), (b), 201.025 (West 2010). The trial court sided 

with Benson and applied section 141.033.

Appellants argue that the trial court erred by premising its declaratory relief 

on section 141.033 because the validity of Benson’s applications became moot

once she was elected and because section 201.025 applies. We conclude and 

hold that Appellants’ mootness argument is based on an inapposite statute and 

that section 201.025 has no application on these facts. Because Appellants’

remaining two issues challenging the injunctive relief and attorney’s fees are

contingent upon a favorable outcome on their first issue, we will affirm.

II. BACKGROUND

The City is a duly-organized municipality governed by a seven-member 

city council that is elected at-large. Governed by a board of trustees, the City’s 

public library is a library district established pursuant to an election under chapter 

326 of the local government code.

On January 22, 2016, Benson signed an application for a place on the 

May 7, 2016 ballot for Place 3 of the Forest Hill City Council and an application 

for a place on the same ballot for Place 5 of the Forest Hill Library Board of 

Trustees. The City Secretary signed that she received both applications on 
3

February 17, 2016. Benson filed the city-council application before she filed the

library-board application. The City did not prohibit Benson from running for both

offices, her name subsequently appeared on the ballot as a candidate for both 

offices, and she was elected to both offices. On May 17, 2016, Benson took the 

oath of office for both positions; she was sworn in first as a city-council member 

and second as a library-board trustee.1

At its meeting on June 7, 2016, the city council expressed concern whether 

Benson could legally serve in both offices at the same time. On Benson’s 

motion, the city council decided to seek an opinion from the Attorney General on 

the propriety of Benson’s serving in both offices simultaneously.2

On January 3, 2017, the Attorney General issued an opinion in which he 

concluded that given the potential for conflict between the City and the library 

district over each entity’s presumed effort to maximize its share of the statutorilylimited 2% sales and use tax, the offices of city-council member and librarydistrict trustee are incompatible under the common-law doctrine of conflictingloyalties incompatibility. See Tex. Att’y Gen. Op. No. KP-0125 (2017). 

Regarding Benson’s status, the Attorney General noted that “qualification for and 

acceptance of a second incompatible office operates as an automatic resignation 

 

1There is no indication in the record whether the interval between the oaths 

was seconds, minutes, or hours.

2The city attorney forwarded the letter to the Tarrant County District 

Attorney, who forwarded it to the Attorney General.
4

from the first” and, therefore, that “in qualifying for the second office of library 

district trustee, [Benson had] effectively resigned from the office of city council.” 

Id. The opinion mentioned neither election code section 141.033 nor section

201.025.

After receiving the Attorney General’s opinion, the city council noticed a 

special meeting for January 6, 2017, to address the opinion. Benson requested 

that the meeting be postponed until she returned to town, but it proceeded in her 

absence, and the city council voted to accept Benson’s deemed resignation from 

the city council and to appoint Appellant Brigette Mathis to fill the vacancy

created by the resignation.

In addition to a claim for a violation of the Texas Open Meetings Act and a 

request for injunctive relief, Benson sued Appellants for a declaration that the 

City’s purported acceptance of her “effective resignation” was null and void, that 

she had never resigned, and that she is the “legally elected and qualified 

incumbent in the office of City Council, Place 3, City of Forest Hill Texas.” The 

trial court temporarily enjoined the City from giving effect to the city council’s 

actions at the meeting on January 6, 2017, and after a bench trial, it signed a first

amended final judgment ordering the following:

1. The action by the City Council of the Defendant City of 

Forest Hill, Texas on January 6th, 2017, declaring that Plaintiff 

Benson “effectively resigned” from the City was and is null and void, 

ab initio;

2. The action by the City Council and Defendant City of 

Forest Hill on January 6th, 2017 in appointing Defendant Brigette 
5

Mathis as successor to Plaintiff Benson’s Council Position, Place 3, 

was and is null and void, ab initio[.]

The trial court also permanently enjoined the City from interfering with Benson’s 

occupation of Place 3 of the city council, awarded Benson attorney’s fees, and 

issued findings of fact and conclusions of law, which included the following 

conclusions:

1. Texas Election Code Section 141.033 titled Filing 

Applications for More than One Office Prohibited. Specifically it 

states, “(a) A candidate may not file applications for a place on the 

ballot [for two or more offices] that are not permitted by law to be 

held by the same person. (b) If a person files more than one 

application for a place on a ballot in violation of [this] section, each 

application filed subsequent to the first one is invalid.” V.T.C.A. 

Election Code Section 141.033 (a) and (b).

2. The undisputed evidence is that Dr. Benson filed the 

application for City Council first. Therefore, the Office of City 

Council, Place 3, was the only office for which Dr. Benson properly 

filed, elected, and took an oath to serve.

3. Under that section, her application for election to the 

Library Board, her second filing, was invalid, and she was never 

properly elected to the Library Board[.]

4. Dr. Benson never filed a proper application for a place on 

the ballot for the Library Board, so she does not hold, never has 

properly held, that position. Incompatibility of office does not exist.

5. Defendants[’

]

reliance on Election Code Section 

201.025 . . . is unavailing. . . .

6. Neither the Attorney General’s Opinion nor Defendants’ 

argument based on Section 201.025 address the validity of 

Benson’s application for the Library Board, her second application. 

Section 141.033 must be considered before the issue of the postelection oath of office should be considered.
6

7. The action by the City Council . . . on January 6th, 201[7] 

declaring that Plaintiff Benson had “effectively resigned” from the 

City Council was and is null and void, ab initio.

8. The Action by the City Council of Defendant City on 

January 6th, 2017 in appointing Defendant Brigette Mathis as 

successor to Plaintiff Benson’s Council position, Place 3, was and is 

null and void, ab initio.

Appellants then perfected this appeal.3

III. DECLARATORY JUDGMENT

Appellants argue in their first issue that the trial court misinterpreted the 

election code by declaring, consistent with election code section 141.033, that 

Benson’s second-filed application for library-board trustee was invalid because

under election code section 141.034, the validity of Benson’s application for that 

position could have only been questioned before the election. Because no such 

question was timely raised until after Benson had assumed the position, 

 

3

In its amended final judgment, the trial court stated that it agreed with the 

Attorney General’s opinion that a conflict existed between Benson’s two offices. 

Benson opines similarly in her brief, acknowledging that the Attorney General’s 

opinion “is correct as to incompatibility.” But the judgment also states that “the 

City Council position was the only office for which [Benson] was properly filed 

and elected to serve. With Plaintiff only being properly elected to one office, 

there is no conflict and no incompatibility.” Conclusion of law number 4 states 

the same in substantially similar terms, including that “[i]ncompatibility of office 

does not exist.” The statements are seemingly contradictory but, we think, also 

reconcilable. Benson and the trial court appear to have two different things in 

mind when they generally allude to incompatibility. There is no dispute that a 

conflict existed when Benson held the two offices. However, the trial court 

determined, and Benson contends on appeal, that she never properly held the 

trustee position because she never filed a valid application for that office. Under 

that scenario, so goes the reasoning, there is no incompatibility. Whatever the 

case, Appellants raise no complaint about the statements.
7

Appellants posit that any argument relating to the validity of her application is

moot. Appellants further contend that because Benson was elected and sworn 

into both offices, the trial court should have applied election code section 

201.025 and the common-law doctrine of incompatibility to conclude that Benson

effectively resigned her city-council position once she was sworn into the trustee 

position. Benson responds that neither section 141.034 nor section 201.025 

have any application under the facts here. Guided by our well-established rules 

of statutory construction, we agree with Benson.

The Uniform Declaratory Judgments Act generally permits a person who is 

interested under a deed or other contract, or whose rights, status, or other legal 

relations are affected by a statute or contract, to obtain a declaration of rights, 

status, or other legal relations thereunder. Tex. Civ. Prac. & Rem. Code Ann. 

§ 37.004(a) (West 2015). Its purpose is “to settle and to afford relief from 

uncertainty and insecurity with respect to rights, status, and other legal relations.” 

Id. § 37.002(b) (West 2015).

We review declaratory judgments under the same standards as other 

judgments and decrees and look to the procedure used to resolve the issue at

trial to determine the appropriate standard of review. See id. § 37.010 (West 

2015); Trinity Drywall Sys., LLC v. Toka Gen. Contractors, Ltd., 416 S.W.3d 201, 

207 (Tex. App.—El Paso 2013, pet. denied). When, as here, a declaratory 

judgment is entered after a bench trial, we review the trial court’s conclusions of 

law de novo. Trinity Drywall Sys., 416 S.W.3d 207.
8

Appellants do not dispute the underlying fact findings upon which the trial 

court based its decision (findings of fact 2‒21); rather, they challenge the trial 

court’s legal conclusions based on those facts (conclusions of law 2‒8).

4

 We 

review conclusions of law to determine their correctness based upon the facts, 

but we will not reverse because of an erroneous conclusion if the trial court 

rendered the proper judgment. City of Austin v. Whittington, 384 S.W.3d 766, 

779 n.10 (Tex. 2012) (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 

789, 794 (Tex. 2002)); H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 513 (Tex. 

App.—Fort Worth 2012, no pet.).

The parties’ arguments require us to construe statutes. When construing a 

statute, our primary objective is to ascertain and give effect to the legislature’s 

intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We seek that intent 

first and foremost in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 

S.W.3d 83, 85 (Tex. 2006). We rely on the plain meaning of the text, unless a 

different meaning is supplied by legislative definition or is apparent from context, 

or unless such a construction leads to absurd results. City of Rockwall v. 

Hughes, 246 S.W.3d 621, 625‒26 (Tex. 2008); see Tex. Gov’t Code Ann. 

§ 311.011(a) (West 2013).

 

4Appellants do not expressly challenge any of the trial court’s conclusions 

of law, but judging by their arguments, we assume that they challenge 

conclusions 2‒8.
9

A. Section 141.034 is inapposite

Entitled “Filing Applications for More Than One Office Prohibited,” election 

code section 141.033 provides in relevant part,

(a) A candidate may not file applications for a place on the 

ballot for two or more offices that:

(1) are not permitted by law to be held by the same 

person; and

(2) are to be voted on at one or more elections held on 

the same day.

(b) If a person files more than one application for a place on a 

ballot in violation of this section, each application filed subsequent to 

the first one filed is invalid.

Tex. Elec. Code Ann. § 141.033(a), (b).5 Entitled “Limitation on Challenge of 

Application,” election code section 141.034 provides in relevant part,

(a) An application for a place on the ballot may not be 

challenged for compliance with the applicable requirements as to 

form, content, and procedure after the day before any ballot to be 

voted early by mail is mailed to an address in the authority’s 

jurisdiction for the election for which the application is made.

(b) This section does not apply to a determination of a 

candidate’s eligibility.

Id. § 141.034(a), (b). There are several reasons why section 141.034 is

inapposite and did not render the validity of Benson’s library-board application 

moot once the election took place.

 

5There is no question that the election for both offices occurred on the 

same day.
10

First, the statute speaks to application challenges, but this cause involves 

no challenge to an application. Instead, it involves Benson’s challenge to the city 

council’s actions on January 6, 2017, and the trial court’s decision to apply 

section 141.033 as a remedy in light of the Attorney General’s uncontested 

incompatibility determination. The trial court’s decision to apply section 141.033 

did not somehow transform this cause into an application challenge.

Second, the time limitation contained in section 141.034(a) covers 

application challenges involving form, content, and procedure, but this cause has 

nothing to do with the form, content, or procedure of Benson’s library-board 

application, nor do Appellants even so argue.

Third, section 141.033 speaks to a very specific factual situation that 

section 141.034 simply does not. Issues of form, content, and procedure can be 

resolved easily, and expediently, by cross-referencing election code section 

141.031(a), which sets out in detail the form, content, and procedure required for

an application. Id. § 141.031(a) (West Supp. 2017). By contrast, section 

141.033 addresses the invalidity of an application that a person submits for a 

place on the ballot for an office that the person is “not permitted by law” to hold—

a potentially challenging and intricate inquiry that, in all likelihood, will often

require more than simply referencing a statutory checklist, as this case aptly

demonstrates. Id. § 141.033(b). The legislature’s decision to include a time 

limitation in section 141.034(a), but not in section 141.033, implicitly recognizes 

this reality.
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Appellants argue that section 141.034(a) “ensures that there is finality in 

the election process,” and while we agree, we cannot ignore that the statute 

ensures finality for only three specific types of application defects, none of which 

are implicated here. We also cannot ignore that in the very same statute, the 

legislature expressly excluded issues involving a candidate’s eligibility from 

section 141.034(a)’s time bar, indicating an intent to implement time constraints 

for some, but not all, application-related matters.

Unlike the facts in this case, the caselaw that Appellants direct us to 

involved a city secretary’s rejection of an application and petition, see In re 

Crenshaw, No. 05-17-00330-CV, 2017 WL 1292013, at *1 (Tex. App.—Dallas 

Apr. 7, 2017, orig. proceeding) (mem. op.), and an application challenge, see

In re Meyer, No. 05-16-00063-CV, 2016 WL 375033, at *1 (Tex. App.—Dallas 

Feb. 1, 2016, orig. proceeding) (mem. op.). The caselaw is therefore 

unconvincing.

Section 141.034 has no application here. We overrule this part of 

Appellants’ first issue.

B. Applying section 201.025 on these facts would lead to absurd results

Election code section 201.025 states, “If an officer accepts another office 

and the two offices may not lawfully be held simultaneously, a vacancy in the first 

office occurs on the date the person qualifies for the other office.” Tex. Elec. 

Code Ann. § 201.025. Appellants suggest, and we have no reason to dispute,

that the statute codifies the same common-law rule. See State ex rel. Hill v. 
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Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994) (“Under the common law, 

one person cannot simultaneously hold two incompatible offices, and the general 

rule is that the acceptance and qualification for a second office incompatible with 

the first office is an implied resignation of the first office.”). The parties appear to 

agree that Benson qualified for the city-council office and the library-board office 

when she took the oaths for those offices.

Three words used in section 201.025 are particularly relevant here: 

“officer,” “another,” and “other.” They indicate that the statute applies only to a 

person who is a current officeholder when she accepts and qualifies for the 

second office. This plain reading coincides with the supreme court’s 

understanding and application of the common-law rule—“If a person holding an 

office is elected or appointed to another (where the two offices cannot be legally 

held by the same person) and he accepts and qualifies as to the second, such 

acceptance and qualification operate, ipso facto, as a resignation of the former

office.” Pruitt v. Glen Rose ISD No. 1, 126 Tex. 45, 49, 84 S.W.2d 1004, 1006 

(1935) (emphasis added). Each of the notable cases on this topic involved a 

similar scenario. In Pruitt, Kugle qualified for district tax collector in November

1928 and took the oath of office for county tax collector in January 1929. Id. at 

49, 84 S.W.2d at 1005. In Thomas v. Abernathy County Line ISD, Smith and 

Lindsey qualified as school trustees in April 1924 and as aldermen in September 

1924. 290 S.W. 152, 152 (Tex. Comm’n App. 1927, judgm’t adopted). And in 

State ex rel. Kingsbury v. Brinkerhoff, respondent qualified as city secretary on 
13

April 13, 1885, and as recorder on April 14, 1885. 66 Tex. 45, 46, 17 S.W. 109, 

110 (1886).

Unlike the parties’ sequential holding and qualification for the offices in 

Pruitt, Thomas, and Brinkerhoff, Benson was elected to the city-council and 

library-board offices on the same day, and she took the oath of office and 

qualified for both offices on the same day. Thus, considering section 201.025’s 

language in light of the caselaw authorities applying the same common law rule, 

as we may do, see Tex. Gov’t Code Ann. § 311.023(4) (West 2013), Benson was 

not an “officer,” as the legislature intended that term to be used in section 

201.025, when she qualified for the “other” office.

Appellants try to sidestep the legislature’s intent by pointing out that

Benson nevertheless took the oath of office for the city council before she took 

the oath of office for the library board, but construing the term “officer” to include 

a person who only became an officer on the same day that she qualified for the 

“other” office would be absurd—it cannot be presumed that Benson intended to 

resign her city-council position on the very same day that she took the oath of 

office for that position. See Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 

68, 73 (Tex. 2011) (“We . . . interpret statutes to avoid an absurd result.”); see 

also Tex. Gov’t Code Ann. § 311.021(3) (West 2013) (providing that in enacting a 

statute, it is presumed that “a just and reasonable result is intended”).

Like election code section 141.034, section 201.025 has no application on 

these facts. We overrule the remainder of Appellants’ first issue.
14

C. Response to the dissent

The dissent opines that section 141.033 is no more applicable on these 

facts than section 141.034 is because no “law”—as that term is used in section 

141.033(a)(1)—prohibited Benson from simultaneously holding both the citycouncil and library-district-trustee positions when she filed her ballot applications. 

This argument is nowhere to be found in the City’s briefing, a reality that the 

dissent expressly acknowledges in its footnote 3—“I recognize that the City did 

not argue the inapplicability of section 141.033 on this basis.” Nor can we agree 

that a de novo standard of review compels us to review unassigned error. The 

dissent laments that our responsive analysis leaves an “analytical hole explaining 

why section 141.033 applies,” but the City presumably does not share the same 

concern, judging by its conspicuous decision to hinge its analysis on the 

applicability of section 141.034, rather than on the inapplicability of section 

141.033(a)(1).

The dissent’s argument also suffers from an unrealistic expectation of 

specificity. It cites Texas constitution article XVI, section 40 as an example of a 

“law” that precludes someone from holding two given offices (“No person shall 

hold or exercise at the same time, more than one civil office of emolument . . . .” 

Tex. Const. art. XVI, section 40(a)), but it then departs from the relatively low 

level of specificity with which the provision is understandably drafted and 

concludes that in this case, no “law” prohibited Benson from simultaneously 

holding the specific positions of city-council member and library-district trustee. 
15

By construing the term “law” so narrowly, and with such a high degree of 

specificity, the dissent effectively guarantees the outcome that it seeks to reach, 

impliedly placing upon the legislature the heavy burden of crafting an extensive 

list of positions that are prohibited from being held simultaneously.

In any event, the plain and ordinary meaning of the undefined term “law,”

as it is used in section 141.033(a)(1), is certainly broad enough to encompass 

not only “some statute, constitutional provision, rule, ordinance, or regulation,” as 

the dissent construes the term, but also the Texas common law, which generally 

remains a viable source of authority absent express statutory abrogation. See 

Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000). Impliedly 

recognizing this—and likely explaining why the City chose not to focus its first 

issue on section 141.033(a)(1)’s term “law”—neither side contests that the 

common law prohibited Benson from simultaneously holding both positions; 

instead, they dispute the remedy to be applied under the unique facts of this 

case.

As for our section 201.025 analysis, the dissent reasons that “[n]either the 

statute nor the common law suggests that one must have been in office for some 

minimum time period before the effective-resignation principle comes into play,”

but we can reasonably conclude that both do. We showed above that the 

dispositive caselaw applying the common-law doctrine of conflicting-loyalties 

incompatibility has calculated the timeframe between when an officer qualifies for 

the first office and when she qualifies for the second office in increments of no 
16

less than a day—not also in hours, minutes, or seconds. Presuming that the 

legislature was aware of this aspect of the caselaw when it enacted the statute, 

as we must, see Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 

591, 596 (Tex. 2001), and construing the statute in light of the caselaw 

authorities applying the same common law rule, as we may do, see Tex. Gov’t 

Code Ann. § 311.023(4), it is both just and reasonable to afford section 201.025 

a similar construction. See id. § 311.021(4).

IV. INJUNCTIVE RELIEF AND ATTORNEY’S FEES

In their second issue, Appellants argue that the trial court erred by issuing 

the permanent injunction because it erred by granting Benson declaratory relief. 

In their third issue, Appellants ask us to remand the issue of attorney’s fees to 

the trial court if we reverse its judgment. Having overruled Appellants’ first issue, 

we also overrule their contingent second and third issues.

V. CONCLUSION

Having overruled Appellants’ three issues, we affirm the trial court’s 

judgment.

/s/ Bill Meier

BILL MEIER

JUSTICE

PANEL: WALKER, MEIER, and KERR, JJ.

KERR, J., filed a dissenting opinion.

DELIVERED: July 12, 2018