10 11 12 13 14 15 16 a7 18 19 20 21 23 24 28 AL REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO, DC-09-07085~D RICHARD FLEMING IN THE DISTRICT COURT vs. DALLAS COUNTY, TEXAS CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, ) ) ) 7 7 ) ) ET AL. ) 95TH JUDICIAL DISTRICT on the 3*4 day of September, 2009, the following proceedings came on to be held in the above~titled and numbered cause before the Honorable, Judge Ken Molberg Presiding, held in Dallas, Dallas County, Texas. Proceedings reported by computerized stenotype machine. Deana K. Adams Official Court Reporter, 95th District Court T: (214) 653-6747 — F: (214) 653-7991 00391oO aw 12 13 14 18 16 17 18 19 20 21 22 23 24 APPEARANCES MR. DERRELL COLEMAN SBOT NO. 04558550 West & Associates, L.L.P. 320 South R.L. Thornton Freeway Suite 300 Dallas, Texas 75203 Telephone: (214) 941-188 Attorney for Mr. Fleming MR. ROBERT E. LUNA SBOT NO. 12693000 Law Offices of Robert E, Luna, P.C 4411 North Central Expressway Dallas, Texas 75205 Telephone: (214) 521-8000 - Fax: (214) 521-1738 Attorneys for Carrollton-Farmers Branch 18D MS. PAULA BENNETT SBOT NO. 24064824 McKnight 4807 Gaston Avenue Dallas, Texas 75246 Telephone: (214) 528-4191 Attorney standing in for Darlene Ewing Deana K. Adams Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-799 0392+ 4 a INDEX 3 | Appearances........csceeesec eee eeu eee ves 4 | Commingled Argument...... 5 | Reporter's Certificate. 19 20 21 22 23 25 2) Deana K. Adams ; Official Court Reporter, 95th District Court Tr (214) 653-6747 ~ EF: (214) 653-7992 0039310 11 12 13 14 15 17 18 19 20 21 22 23 24 25 PROCEEDINGS TRE COURT: TI figured given the filings. excuse me, of last time that there might be further filings particularly aimed at the injunctive request that Mr. Fleming has made, and I note that apparently I was correct in that. I've been -- haven't had a time, a chance; we've been in hearings all morning -- to read through everything you filed today But I have been looking at primarily your second amended brief in support of xespondent's plea to the Jurisdiction, etc. That is why I changed it, because I anticipated those filings. Tell me, Mr. Luna, in a nutshell why this Court does not have mandamus jurisdiction and it is exclusive in the Court of Appeals. I've read the El Paso case, and I'm not really impressed at all with that case. But is there anything a little more solid other than it appeared that the Court just wanted that one person to win that thing? MR. LUNA: Your Honor, of course I know at our last hearing I tendered to you the statute. THE COURT: Right. MR. LUNA: ‘The Court advised that you were very well aware of that particular statute. THE COURT: Right. Deana K. Adams Official Court Reporter, 95th District Court T: (214) 653-6747 ~ F: (214) 653-7991 0039410 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LUNA: “And it seems that the wording of the statute places that jurisdiction in the appellate courts and having to do with election issues only. THE COURT: But it doesn't place it -- it doesn't place it exclusively, so, you know, it says they may, if I recall the statutory -~ Your Honor's memory's absolutely MR. LOW perfect. The word is "may." And then we have the one Appellate Court opinion that says of course that that is an exclusive jurisdiction. THE COURT: Okay. What else -~ do we have anything else out there -~ and, frankly, Mr. Luna, I have not had time to look at it and I intend to this weekend -- anything else that -- I don't want to be critical of the court, but what I -- without trying to sound critical than that El Paso anything more authoritative than that > court opinion? MR. LUNA: Your Honor, while it's not in the brief itself, we did go back and follow the legislative history back of that statute. And we'd be glad to tender it to the Court, but the legislative history does start off and it does use that language that that jurisdiction would be exclusive jurisdiction within those courts. And that's how it starts out, and so all Deana K. Adams Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991 00395) / 10 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 of our statutes from that point tend to come out of that original legislative history. THE COURT: Okay. MR. LUNA: So we think that -- that -- and while that court, I don't believe, cited to the legislative history either, we do have it available. and so we think that that's some additional evidence that that was what was intended as well as the Appellate Court opinion. And, of course, on the opposite side, there's nothing that says the other way, to the other side of that. THE COURT: Well, perhaps that's because it's so apparent, if you know what I mean. One of the —- one of the real concerns I have here, and I think you picked up on it, and I'll let your opposing counsel, address this in a moment, we have on the one hand this ~ this very -- what I consider a very broad statutory command when it comes to injunctions and enjoining matters relating to the election process. And my previous opinion cites the provision, I believe it's 273.081, yeah, a person being harmed or in danger of being harmed by a violation of the Election Code is entitled to appropriate injunctive relief, etc., etc., etc. I mean, that -- that is just so clear, so Deana K, Adams Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991 0039610 a 12 13 14 1s 16 a 18 19 20 22 22 23 24 25 absolutely clear, yet we have this wealth of appellate authority that prevented me from doing anything Because it said, well, forget the statute. It really doesn't mean what it says. Once an election is complete, the vote is complete, then this statute doesn't apply. And the only way you can attack a -- a threshold qualification like residency or one of the others is through a writ of quo warranto. Now, you know, I totally disagree with that, but those are my superiors telling me that. And the Fifth Court of Appeals told us that very strongly in the Parnell case, I think, because isn't that -- the previous iteration of this case, the Ingram case, wasn't it just on all fours basically with the Parnell case? MR. LUNA: No. And Your Honor is raising | excellent questions obviously, Parnell really is -- not on all fours at all with this case, because it, of course, had to do with standing, which is not an issue here. THE COURT: Right. MR. LUNA: And also, in our case, we have -- we have a specific statute which addresses a very harrow administrative remedy available in a post-election Deana K, Adams Official Court Reporter, 95th District Court T: (214) 653-6747 ~ (214) 653-7991 0029710 al 12 13 22 23 24 25 situation. THE COURT: Right. The disqualific -~ you're talking about the disqualification? MR. LON: : Yes, sir. Yes, sir. THE COURT: But that applies -- when you say a narrow statute, it's not narrow at all. It applies to all kinds of elections. MR. LUNA: Oh, absolutely, But narrow in the sense of timing, because Your Honor is soxt of stopping with the election. And each time I hear you talk about it, you talked about the -- the election process and the date of the election. THE COURT: Right. MR. LUNA: This statute gives a very narrow window. And it says after the poll is closed, so it's clearly after the election, and before a certificate of election is issued, then this administrative process can take place. $0 there's a very specific statute, which is a post-election process, which is different than the Parnell cases and the other cases the Court confirmed. THE COURT: So what we get here is I go s -- it's not back to my previous befuddlement on th: befuddlement at all. [t's the -~ the lack of coherence. We have a situation where there's something wrong in the process. Deana K. Adams Official Court Reporter, 95th District Court T: (214) 653-6747 - (214) 653-7992 0039810 11 12 13 14 15 16 7 18 19 20 21 Let's assume for a minute that Mr. Fleming never resided in the district, and somebody sues after the vote is closed to enjoin him from taking his seat. And the Appellate Courts tell me and tell all the District Courts or whoever else might have jurisdiction that they cannot wade into the process, that the election is essentially sacrosanct, even though we can prove it right here in this courtroom whether he was or was not a resident of the district. And we can't touch that, but one person later on -- you know, the election's important except when it isn't. You follow me there? MR. LUNA: Absolutely, Your Honor, and I don't profess to know why the legislature passes the laws that they do. THE COURT: God knows. MR. LUNA: So -~ (Laughing) MR. LUNA: setting that aside, the only thing I can tell you is that we attempt to follow the Constitution and the laws that we're given and follow them correctly. And that particular process is a post-election process for one person, the presiding election officer, whoever that may be in different elections, to take action under that specific statute. Deana K. Adams Official Court Reporter, 95th District Court T: (214) 653-6747 - FP: (214) 653-7991 00399