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NO.

09-07085-D

RICHARD FLEMING, § IN THE DISTRICT COURT OF


§
Plaintiff, §
§
V. § DALLAS COUNTY, TEXAS
§
CARROLLTON-FARMERS BRANCH §
INDEPENDENT SCHOOL DISTRICT §
and LYNN CHAFFIN, in her capacity as §
presiding officer, §
§
Defendants. § 95TH JUDICIAL DISTRICT

ORDER

On September 11, 2009, the Court called this matter for final hearing and trial on the

plaintiff’s application for mandamus, injunctive and declaratory relief. Defendants have

interposed pleas to the jurisdiction and in bar, seeking dismissal of Fleming’s claims without a

trial. They have otherwise denied that Fleming is entitled to the relief he requests.

All parties appeared through able counsel and announced ready to proceed. Without

objection, the Court determined that it would carry the defendants’ pleas and their motion to

dismiss until the completion of the evidentiary presentation and would treat the case as a final

trial on the merits.

I. BACKGROUND AND NATURE OF THE DISPUTE

This dispute involves Plaintiff Richard Fleming’s eligibility to hold the office of Trustee,

Place 4, on the Carrollton-Farmers Branch Independent School District (C-FB ISD) Board of

Trustees.

All parties and the Court concede that the unique facts of this case raise some of the most

perplexing legal issues that exist under the Texas Election Code and the court decisions

interpreting that Code.

ORDER – Page 1
It is undisputed that Fleming won the May 9, 2009, election, garnering some 52 percent

of the vote for the Board’s Place 4 position.

The election results were canvassed within the time allowed by law and Fleming was

declared the winner in a formal vote of the canvassing authority on May 18, 2009.1 More

specifically, a unanimous Board declared Fleming the victor and endorsed the election process.

The Board found:

[that the] election was duly called, that notice of said election was
duly posted and that said election was held in accordance with
law; and that at said election . . . Fleming was elected to said
Board of Trustees in Place 4, subject to issuance of the certificate
of election by the presiding officer in accordance with the law and
taking the oath of office.” [Emphasis added.]

Nevertheless, Fleming was not then, nor has he been, issued a certificate of election and

allowed to take the Place 4 seat. Rather than issue the certificate and seat Fleming, Defendant

Lynn Chaffin, the presiding officer of the election’s canvassing authority and the current

president of the C-FB ISD Board of Trustees, issued a formal declaration of ineligibility against

Fleming more than two weeks after the canvass and more than three weeks after the vote.2

The refusal to seat Fleming is based on defendants’ claim that Fleming fails to meet state-

mandated residency requirements for the public office at issue. Defendants argue that at all

times material to this proceeding Fleming lived some 17 feet within the Lewisville Independent

School District (LISD), not in the Carrollton-Farmers Branch district. Put another way,

defendants say that close only counts in Horseshoes and hand grenades, not in the determination

of a candidate’s residency requirements.

1
The canvassing authority in this case was the Board of Trustees of the C-FB ISD.
2
The presiding officer of the canvassing authority, here Chaffin, has the exclusive authority
and duty to issue such a declaration. Such an action does not require school board approval.

ORDER – Page 2
Fleming counters that the defendants failed to adhere to legal requirements in

disqualifying him and preventing him from taking office. He also argues that for purposes of the

May 9 election, he was within the boundary lines of the district.

For more than 20 years, the electoral area’s tax appraisal districts (Dallas and Denton)

sited the boundary line between C-FB ISD and LISD to include what is Fleming’s residence

within C-FB ISD.

Since he has resided there, Fleming has paid taxes to C-FB ISD at its demand and subject

to governmental penalties for nonpayment. A mere day before the filing period opened for the

office at issue, the C-FB ISD tax assessor-collector sent Fleming a formal statement for his

school district taxes and demanded payment. Fleming tendered his payment and the district

accepted it some 30 days later. Defendants concede that only properties within the district are

subject to taxation.

Throughout this same time, Fleming was also the caretaker of several family members,

including children, who resided with him at the residence.3 The uncontradicted evidence shows

that these children have attended schools within C-FB ISD. They would not have been able to

do so had they not resided within the district. The defendants admit this.

On March 9, 2009, Fleming filed his application for candidacy with C-FB ISD

authorities. On it he listed his residence address as the one currently challenged as being

outside the school district. Fleming’s application was accepted by the district pursuant to TEX.

ELEC. CODE § 145.003(g), which affirmatively requires the filing authority, here C-FB ISD, to

promptly verify its legal efficacy. That provision mandates that the C-FB ISD review

information relating to a candidate’s residency, and if “the record establishes ineligibility . . . the

3
Fleming recently moved into a “non-controversial” part of the C-FB ISD.

ORDER – Page 3
authority shall declare the candidate ineligible.” Once the district measured Fleming’s

application against this requirement, his name was certified by the district for inclusion on the

May 9 election ballot.

Defendant Chaffin concedes that in determining residency eligibility, the district relied

on the boundary maps of the taxing authorities.4 Those maps–public records all–clearly showed

Fleming’s residence to be within the C-FB ISD. In other words, district officials responsible for

the election treated the boundary lines of the school district as being the boundary lines

established by its taxing authority. Those lines formed the de facto boundary of the district for

purposes of Board candidacy. This is not in dispute.

After Fleming won, Stanley Ingram, a C-FB ISD resident, sued in this Court to enjoin the

district from allowing Fleming to take office. See Ingram v. Carrollton-Farmers Branch Indep.

School Dist., et al., No. 09-06249-D (95TH Jud. Dist. Ct., May 18, 2009). Ingram contended that

Fleming did not reside within C-FB ISD and, as a result, failed to meet the statutory residency

requirements to lawfully occupy the position to which he was elected by a majority of C-FB ISD

voters. In other words, Ingram sought the same result there that the defendants seek here. The

Court initially temporarily restrained Fleming from taking his seat, pending a hearing on the

merits.

At the conclusion of the merits proceedings in the Ingram case on May 27, 2009, this

Court held that despite the apparently clear legislative mandate found in TEX. ELEC. CODE ANN.

4
Chaffin, who has an impressive command of school district policies and procedures, as well
as a solid grasp of election law as it relates to school districts–testified that as a result of this controversy
the district has changed its procedures.

ORDER – Page 4
§ 273.081, it had no jurisdiction to enjoin Fleming from taking the Board seat.5 This conclusion

was based upon precedent of the of higher courts that hold that in a post-election setting, like

that here, the only avenue available by which to determine the rightful holder of the office,

absent a formal election contest, is through proceedings in quo warranto. See, e.g, Norville v.

Parnell, 118 S.W.3d 503 (Tex. App.–Dallas 2003, pet. denied), and cases there cited.

Accordingly, the temporary restraining order was dissolved and the request for an injunction was

denied.6

On June 3, 2009 (a few days after the Court had dissolved the temporary restraining order

against him and the district) Fleming took his oath of office. He was nevertheless prevented by

the district from taking his seat on the Board. Rather than issue Fleming a certificate of election,

Defendant Chaffin formally declared Fleming ineligible for the trustee position. The basis of her

June 4, 2009, declaration is that Fleming failed to reside within the district during the required

time period. The declaration was issued almost a full month after the district first learned of an

alleged boundary mistake and more than three weeks after the election.

Chaffin’s declaration is grounded exclusively in TEX. ELEC. CODE § 145.003, which, in

pertinent part and with emphasis, provides as follows:

***

(c) A candidate . . . may be declared ineligible before the


beginning of early voting by personal appearance by the authority
with whom an application for a place on the ballot for the office
sought by the candidate is required to be filed.

5
The C-FB ISD fully appeared at this hearing. Among the various exhibits offered was
Defendants’ Exh. 4. This exhibit establishes that the district was aware of a residency question relating to
Fleming no later than May 6, 2009–three days before election day. Significantly, that exhibit, which is a
letter from the Dallas Central [Tax] Appraisal District to Mark Hyatt, a C-FB ISD assistant
superintendent, attaches what purport to be the metes-and-bounds and various plats of the C-FB ISD.
6
The Court’s opinion in Ingram is attached as Appendix “A.”

ORDER – Page 5
(d) The presiding officer of the final canvassing authority for the
office sought by a candidate may declare the candidate ineligible
after the polls close on election day and, except as provided by
Subsection (e), before a certificate of election is issued.

***
(f) A candidate may be declared ineligible only if:

(1) the information on the candidate's application


for a place on the ballot indicates that the candidate
is ineligible for the office; or

(2) facts indicating that the candidate is ineligible


are conclusively established by another public
record.

(g) When presented with an application for a place on the ballot or


another public record containing information pertinent to a
candidate's eligibility, the appropriate authority shall promptly
review the record. If the authority determines that the record
establishes ineligibility as provided by Subsection (f), the authority
shall declare the candidate ineligible.

Following Chaffin’s declaration of ineligibility, the Board called a special election for

November 3, 2009, to fill the “vacancy” in the Place 4 Board position.

ORDER – Page 6
II. DEFENDANTS’ PLEAS TO JURISDICTION AND IN BAR

As previously noted, the defendants challenge this Court’s authority to decide this

matter.7 The Court, however, disagrees with the defendants’ position for the following reasons.

A. Mandamus8

Defendants argue that in matters relating to elections, the district courts have been

dispossessed of constitutionally conferred jurisdiction to issue writs of mandamus. Their

contention is grounded in TEX. ELEC. CODE ANN. § 273.061, which, with emphasis, provides:

The supreme court or a court of appeals may issue a writ of


mandamus to compel the performance of any duty imposed by law
in connection with the holding of an election or a political party
convention . . . .

To buttress their argument, defendants place exclusive reliance upon Bejarano v. Moody,

901 S.W.2d 570, 571 (Tex. App.–El Paso 1995, orig. proceeding). There, the court broadly held,

without analysis, that “[m]andamus relief lies exclusively with the appellate courts of our state,

not with its district courts.” As authority for this otherwise untethered proposition, Bejarano

cites Sears v. Bayoud, 786 S.W.2d 248, 249 (Tex. 1990), and Strachan v. Lanier, 867 S.W.2d 52,

7
Curiously, the school district did not challenge the Court’s authority to hear the Ingram case,
which was filed to prevent Fleming from taking the Place 4 seat. The strategy seems apparent: the district
could appear in the Ingram proceeding and offer evidence against co-party Fleming and, if that
proceeding were unsuccessful, try again in the inevitable proceeding that would occur following a
declaration of ineligibility, and offer essentially the same evidence. One must wonder why the defendants
did not actively assert their current position in the Ingram proceedings, particularly since the declaration
of ineligibility could have been issued as early as May 10 and well before the Ingram proceedings closed
on May 27.
8
As noted by the court in Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991),
“[a] writ of mandamus will issue to compel a public official to perform a ministerial act.” Such a writ is
also appropriate in cases where an official performs a discretionary act in clear abuse of that discretion.
806 S.W.2d at 793, and cases there cited. Like the duty to canvass the election returns and declare the
result, the duty to issue a certificate of election is a ministerial act. See, e.g., Grant v. Ammerman, 437
S.W.2d 547, 549 (Tex. 1969)(canvass returns and declare result);Williamson v. Kempf, 574 S.W.2d 845
(Tex. Civ. App.–Texarkana 1978, writ ref’d, n.r.e.)(canvass returns, declare the outcome and issue
certificates of election).

ORDER – Page 7
53 (Tex. App.–Houston [1st Dist.] 1993, orig. proceeding). Defendants also cite the unpublished

case of Mosier v. Pollard [sic], 1998 WL 80446 (Tex. App.–Houston [1st Dist.] 1998), which

reflexively relies on Bejarano for the same proposition.9

Besides the obvious fact that neither Sears nor Strachan stand for any such proposition,

the El Paso court missed some important signposts.

Article 5, section 8 of the Texas Constitution provides as follows:

District Court jurisdiction consists of exclusive, appellate,


and original jurisdiction of all actions, proceedings, and remedies,
except in cases where exclusive, appellate, or original jurisdiction
may be conferred by this Constitution or other law on some other
court, tribunal, or administrative body. District Court judges shall
have the power to issue writs necessary to enforce their
jurisdiction.

The District Court shall have appellate jurisdiction and


general supervisory control over the County Commissioners Court,
with such exceptions and under such regulations as may be
prescribed by law.

TEX. GOV’T CODE § 24.011 provides:

A judge of a district court may, either in termtime or vacation,


grant writs of mandamus, injunction, sequestration, attachment,
garnishment, certiorari, and supersedeas and all other writs
necessary to the enforcement of the court's jurisdiction.

In reaching its broad conclusion, the Bejarano court fails to acknowledge these

constitutional and statutory provisions. Neither does the opinion provide any answer why TEX.

ELEC. CODE § 273.061 somehow revokes or qualifies the broad grant of district court jurisdiction

conferred by the Constitution that is fully reiterated in the Government Code.

9
Although the Westlaw citation uses “Pollard” as the surname of the appellee, the correct
name is Polland.

ORDER – Page 8
To the contrary, the case of Love v. Wilcox, 28 S.W.2d 515 (Tex. 1930), establishes that

the legislative enactment (now § 273.061) was designed to give the appellate and supreme courts

limited concurrent jurisdiction with the district courts over mandamus proceedings in some

election matters, but only to the extent, among other limitations, that no factual disputes require

determination. 28 S.W.2d at 519-20.

Defendants cite In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999) as support

for their position, but it offers them none, as it does not address the question at issue. More

applicable is A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995). The A&T case

indicates the proper interpretation of the constitutional provision and it notes precisely how the

legislature vests “exclusive” mandamus jurisdiction in our appellate courts when it desires to do

so pursuant to constitutional permission.

That district courts may properly exercise jurisdiction in election matters is hardly a

novel proposition. It has been the law in this state for more than a century. See, e.g., Anderson

v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991); Griffin v. Wakelee, 42 Tex. 513 (1875).

Indeed, as Anderson makes certain, district courts have broader mandamus jurisdiction in

election cases than do the higher courts.10

Bejarano is a decision without support in law. The district courts have jurisdiction over

mandamus proceedings not merely relating to “the holding of an election,” but over election law

matters as a whole.11

10
Significantly, if defendants’ argument were correct, there would be no mandamus remedy
available in any case where a factual contest exists among the parties in a setting such as this.
11
The Court need not determine whether the phrase “the holding of an election” in §
273.061further qualifies the grant of mandamus jurisdiction to the appellate courts. A common-sense
reading suggests that it does; otherwise it is mere surplusage–an outcome this Court cannot suppose under
rules of statutory construction.

ORDER – Page 9
B. Injunctive Relief

Defendants also question the Court’s jurisdiction to provide injunctive relief in the

circumstances presented.

Of course, the same constitutional and legislative provisions are implicated here as in the

analysis relating to mandamus relief. In addition, however, the Texas Election Code provides

what is clearly an acknowledgment of this jurisdiction, as well as a broad grant of standing to

individuals actually or potentially injured by the Code’s violation. The applicable section

provides:

A person who is being harmed or is in danger of being harmed by


a violation or threatened violation of this code is entitled to
appropriate injunctive relief to prevent the violation from
continuing or occurring.

TEX. ELEC. CODE § 273.081.12

While it is apparent that district court jurisdiction over injunction actions involving

elections has been judicially eroded (in seeming contradiction of the legislative mandate), it is

also clear that the district courts retain broad jurisdiction to entertain requests for injunctive

relief relating to violations of election laws. See, e.g., Blum v. Lanier, 997 S.W.2d 259, 263-64

(Tex. 1999)(Plillips, C.J.)(injunction that facilitates the election process is appropriate).

Accordingly, the defendants’ pleas to the jurisdiction and in bar are OVERRULED and

their motion to dismiss is DENIED.

12
Had this legislative directive been accorded appropriate deference, the issues in this case
would have been concluded last May during the Ingram proceedings.

ORDER – Page 10
III. FINDINGS AND CONCLUSIONS

In making the important determination presented here, the Court is guided by a body of

firmly fixed precedent that overlays legal challenges to candidacy and the right to hold elective

office based on eligibility requirements. The higher courts have repeatedly admonished us that

“any constitutional or statutory provision which restricts the right to hold public office should be

strictly construed against ineligibility.” In re Carlisle, 209 S.W.3d 93, 96 (Tex. 2006)(per

curiam), quoting Dawkins v. Meyer, 825 S.W.2d 444, at 448 (Tex. 1992). See also Sears v.

Bayoud, 786 S.W.2d 248, 251 (Tex. 1990); Brown v. Meyer, 787 S.W.2d 42, 45 (Tex. 1990).

It goes without the necessity of citation that this imperative is one of high constitutional

importance.

In Part I of this Order, the Court determined most of the factual disputes at issue. By way

of summary, and to the extent the controlling facts have not been determined, the Court finds as

follows:

1. At the time the election at issue was called and held, the defendants utilized the

boundary lines set forth by its taxing authority as the boundary lines for purposes

of school board candidacy, and Fleming’s residence was within those boundary

lines.

2. At all times material to the election at issue, Richard Fleming has resided within

the boundaries of the C-FB ISD.

3. Prior to and at the time the district accepted and approved Fleming’s candidacy,

any facts that would have otherwise justified Fleming’s disqualification were in

existence and known to or ascertainable by the Board and the district’s other

election officials.

ORDER – Page 11
4. By the time the presiding officer of the election’s canvassing authority issued the

declaration of Fleming’s ineligibility, any facts that would arguably justify

Fleming’s disqualification had been in existence and known to the defendants

since before the election or immediately thereafter.

5. Facts indicating that Fleming is ineligible were not, during all times material

hereto, “conclusively established” by the public record, as required by the Texas

Election Code. In fact, the tax authority’s boundary lines, the tax statement

issued to Fleming, the payment and receipt of those taxes, and public information

that shows that residents of his household attend schools within the C-FB ISD,

establish that the defendants’ proof of ineligibility can hardly be said to be

conclusive.13

6. The presiding officer of the canvassing authority failed to “promptly” issue a

declaration of ineligibility within the time required by the Texas Election Code.14

13
It is also notable that after the legal jousts began, the school board hired experts in an attempt
to accurately determine the district’s boundaries. This is also some proof that the defendants’ other
evidence was inconclusive on that score.
14
Had a declaration of ineligibility been appropriate, it should have been issued sooner. Here,
virtually all of the information used in this case to upend Fleming’s right to hold office was available
before the election ever occurred. Certainly, that same information was available once the voting ended,
which was the point in time at which the presiding officer of the canvassing authority was duty-bound to
“promptly” issue an ineligibility determination, if at all. Yet, no declaration was issued–not even during
the time when the Ingram case was pending and the district had formally appeared therein, presenting
much of the same evidence there as it presents here. (For example, the defendants offered the entire
reporter’s record of the Ingram case, with exhibits, in the current proceeding.) Any declaration of
ineligibility should have come well before June 4, 2009, and certainly no more than a few days following
the canvass. While it is not the case here, allowing an open-ended delay in the issuance of such a
declaration (or a certificate of election, for that matter) could subject the electoral process to political
manipulation and mischief of the sort the Code is designed to prevent. In such a case, a single individual
could displace the will of the electorate for an inordinate amount of time. As Chaffin’s testimony makes
clear, there is no such mischief here. In fact, the defendants’ position finds reasonable support in law,
even if it is ultimately unpersuasive. Nevertheless, there is no doubt that should this Court permit such a
delay here, others in the future could use the decision as justification for a purely political strategy.

ORDER – Page 12
The Court concludes as follows:

1. Richard Fleming is entitled to the issuance of a Certificate of Election for the

Place 4 seat on the C-FB ISD Board of Trustees as a result of the election of May

9, 2009, of which he was the winner.

2. Richard Fleming is eligible for and entitled to be seated as Trustee, Place 4, on

the C-FB ISD Board of Trustees for the ordinary term of the office.

3. Richard Fleming has no plain or adequate remedy at law available to him to

achieve his place on the Board, and should this Court not grant his request for

relief he will suffer irreparable injury by being denied his right of election to the

position by a majority of the voters in the May 9, 2009, school board election.

4. The defendants failed to timely issue a declaration of ineligibility in this matter,

even if grounds actually existed therefor. Furthermore, defendants have waived

or are estopped from pursuing their claims and defenses herein by the untimely

action, and they are also barred by principles of res judicata in this case by failing

to raise or otherwise urge the claims and defenses here in the Ingram proceeding.

5. Facts indicating that Fleming is ineligible for the position at issue were not

“conclusively established” by the public record, as required by the Texas Election

Code.

Any fact finding deemed to be a conclusion of law is adopted as such, and any conclusion

of law deemed to be a finding of fact is likewise so adopted.

ORDER – Page 13
IV. DECISION

The Court, having fully considered the wealth of testimonial and documentary evidence

before it, together with the arguments of counsel, hereby ORDERS that:

1. Defendant Chaffin, as presiding officer of the canvassing authority and president

of the Carrollton-Farmers Branch Independent School District, shall forthwith

issue to Richard Fleming a Certificate of Election as the duly elected candidate

for, and the rightful officeholder of, Place 4 of the Carrollton-Farmers Branch

Independent School District as a result of the May 9, 2009, election, together with

any other commissions to which Fleming is entitled as the rightful officeholder of

said position;

2. Defendants shall forthwith rescind any and all actions, resolutions and orders

taken by them, jointly or severally, that impair or threaten to impair the holding of

said office by Richard Fleming for the reasons asserted by them herein, until such

time the term of said office expires by operation of law;

3. Defendants shall forthwith seat Richard Fleming as the rightful officeholder of

Place 4 of the Carrollton-Farmers Branch Independent School District as a result

of the May 9, 2009, election, with all rights appertaining to the position;

4. Richard Fleming is awarded full right and title to the office of Trustee, Place 4, of

the Carrollton-Farmers Branch Independent School District, subject to all

obligations appertaining to said office.

In order to effectuate and facilitate the results of the election of May 9, 2009, as

determined by the canvass of the vote of the electorate, it is further ORDERED that:

ORDER – Page 14