FILED

DALLAS COUNTY
1/22/2018 8:18 PM
FELICIA PITRE
DISTRICT CLERK

Alejandro Rodela

CAUSE NO. DC-18-00821

THE DALLAS COUNTY REPUBLICAN § IN THE DISTRICT COURT

PARTY, MISSY SHOREY as the Dallas §
County Republican Party Chair, §
§
PLAINTIFFS, §
§
v. § 14TH JUDICIAL DISTRICT
§
§
THE DALLAS COUNTY DEMOCRATIC §
PARTY, CAROL DONOVAN, as the §
Dallas County Democratic Party Chair, §
§
DEFENDANTS. § DALLAS COUNTY, TEXAS

INTERVENORS’ FIRST AMENDED PLEA IN INTERVENTION,

PLEA TO THE JURISDICTION AND RESPONSE TO
REQUEST FOR TEMPORARY RESTRAINING ORDER
TO THE HONORABLE JUDGE PRESIDING:

NOW COMES Intervenors, the real parties in interest in this cause, and file this

First Amended Plea in Intervention, Plea to the Jurisdiction and Response to Request

for Temporary Restraining Order and would show the Court as follows:

PARTIES

1. Intervenor, Senator Royce Barry West, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of State

Senate, District 23, and is a real party in interest in this cause.

2. Intervenor, Remeko Tranisha Edwards, is a resident of Dallas County and

a candidate in the March 6, 2018 Democratic primary election for the office of Judge,

County Criminal Court #7, and is a real party in interest in this cause.

1
 3. Intervenor, Julia A. Hayes, is a resident of Dallas County and a candidate

in the March 6, 2018 Democratic primary election for the office of Judge, County

Criminal Court #2, and is a real party in interest in this cause.

4. Intervenor, Carmen Denise Pearson White, is a resident of Dallas County

and a candidate in the March 6, 2018 Democratic primary election for the office of

Judge, County Criminal Court #8, and is a real party in interest in this cause.

5. Intervenor, Amber Nicole Givens-Davis, is a resident of Dallas County

and a candidate in the March 6, 2018 Democratic primary election for the office of

Judge, 282nd Judicial District Court, and is a real party in interest in this cause.

6. Intervenor, Lisa Thorp Green, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge,

County Criminal Court #5, and is a real party in interest in this cause.

7. Intervenor, Heath Glen Harris, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge,

Criminal District Court #7, and is a real party in interest in this cause.

8. Intervenor, Teresa Hawthorne, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge, 203rd

Judicial District Court, and is a real party in interest in this cause.

9. Intervenor, Shequitta D. Kelly, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge,

County Criminal Court #11, and is a real party in interest in this cause.

2
 10. Intervenor, Pamela Luther, is a resident of Dallas County and a candidate

in the March 6, 2018 Democratic primary election for the office of Judge, County

Criminal Court of Appeals #2, and is a real party in interest in this cause.

11. Intervenor, Stephanie Nicole Mitchell, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge, 291st

Judicial District Court, and is a real party in interest in this cause.

12. Intervenor, Aeisha Redmond, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge, 160th

Judicial District Court, and is a real party in interest in this cause.

13. Intervenor, Mark Lawrence Watson, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge,

Criminal District Court #7, and is a real party in interest in this cause.

14. Intervenor, Ernest Bernard White III, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge, 194th

Judicial District Court, and is a real party in interest in this cause.

15. Intervenor, Angela M. King, is a resident of Dallas County and a

candidate in the March 6, 2018 Democratic primary election for the office of Judge,

County Criminal Law #6, and is a real party in interest in this cause.

16. Plaintiff, the Dallas County Republican Party (“DCRP”) is a political party

organized in accordance with the Texas Election Code, with its principal place of

business in Dallas County.

3
 17. Plaintiff Missy Shorey, as the Dallas County Republican Party Chair, is an

individual who resides in Dallas County, Texas.

18. Defendant, the Dallas County Democratic Party (“DCDP”) is a political

party organized in accordance with the Texas Election Code with its principal place of

business in Dallas County.

19. Defendant, Carol Donovan, as the Dallas County Democratic Party Chair,

is an individual who resides in Dallas County.

FACTUAL BACKGROUND

20. Intervenors each timely filed an application for a place on the ballot with

Donovan for a place on the 2018 Democratic primary ballot for an office contained

wholly within Dallas County. Pls.’ First Am. Pet., ¶ 12; App. 33, 42, 63, 64, 91, 94, 98,

100, 105, 108, 116, 123, 133, 147, 149.

21. Donovan’s name is signed at the bottom of each Intervenor’s application.

Pls.’ First Am. Pet., App. 33, 42, 63, 64, 91, 94, 98, 100, 105, 108, 116, 123, 133, 147, 149.

Each Intervenor’s name was submitted to the Secretary of State for inclusion on the 2018

Democratic primary ballot. Pls.’ First Am. Pet., ¶ 31.

22. Plaintiffs filed this case seeking declaratory and injunctive relief to

prevent Intervenors’ names from appearing on the 2018 Democratic primary and

general election ballots. Pls.’ First Am. Pet., ¶ 51.

23. Plaintiffs claim that someone other than Donovan signed her name to the

applications filed by Intervenors. Pls.’ First Am. Pet., ¶ 14. Plaintiffs further claim that

because the Texas Election Code, with exceptions not applicable here, provides that

4
only the county party chair can accept candidate ballot applications, Intervenors’

applications were not properly accepted by Donovan and therefore Intervenors’ names

may not appear on the 2018 Democratic primary or general election ballots. Pls.’ First

Am. Pet., ¶¶ 22-30, 33, 35-37.

PLEA TO THE JURISDICTION

24. “Standing is a prerequisite to subject-matter jurisdiction, and subject-

matter jurisdiction is essential to a court’s power to decide a case. The absence of

subject-matter jurisdiction may be raised by a plea to the jurisdiction.” Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000) (footnote omitted).

Plaintiffs Lack the Necessary Interest to Have Standing

25. Neither Shorey nor the DCRP have standing to challenge the candidacy of

any candidates in the Democratic primary election.

26. An ”ordinary citizen or voter . . . has no standing to challenge the removal

of another candidate from the ballot.” Ovard v. Jim Hamlin, No. 05-02-01420-CV, 2002

WL 31018592, at *1 (Tex. App.—Dallas Sept. 11, 2002, no pet.). Indeed, the “only citizen

who has an interest separate and apart from that of the general public is a candidate

who has an interest in not being opposed by an ineligible candidate.” Colvin v. Ellis

County Republican Executive Comm., 719 S.W.2d 265, 266–67 (Tex. App.—Waco 1986, no

writ).

27. The DCRP is clearly not a candidate and Shorey does not allege that she is

a candidate for any office. As such, neither the DCRP nor Shorey have the necessary

personal interest to have standing to seek the removal of any candidate from the ballot.

5
Colvin, 719 S.W.2d at 266 (affirming trial court’s dismissal of Democratic county chair’s

suit to enjoin county Republican party from certifying three candidates for the ballot on

the “’grounds that he had ‘no interest in the subject matter of the lawsuit that is separate

and apart from that of the general public’ and had “no standing to bring the suit even in

his capacity as Chairman of the Ellis County Democratic Party’”). Because neither the

DCRP nor Shorey have standing to seek the relief at issue in this case, this Court lacks

subject matter jurisdiction of their claims.1

Plaintiffs’ Claims for Relief With Respect to the Democratic Primary are Moot

28. Even if Plaintiffs had standing with respect to their claims, they would

lack standing with respect to the issues related to the Democratic primary, because

those issues are now moot. “’If a case becomes moot, the parties lose standing to

maintain their claims.’” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010)

(quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000)). When “parties lose their

standing to maintain their claims . . . the court loses jurisdiction to consider them.” State

v. Golding, 398 S.W.3d 745, 747 n.2 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

29. “Once an election begins, a challenge to the candidacy of an individual

becomes moot.” In re Uresti, 377 S.W.3d 696, 696 (Tex. 2012). This is because, “’[w]hen

the time comes that the issues cannot be heard and a final judgment entered adjudging

the validity or invalidity of the” candidate’s application “so that absentee ballots can be

1To the extent Plaintiffs would argue that their Declaratory Judgment Act (DJA) claim alters this analysis,
the Texas Supreme Court “affirmed the principle that the DJA does not enlarge a court’s jurisdiction; it is
a procedural device for deciding cases already within a court’s jurisdiction.” City of Dallas v. Albert, 354
S.W.3d 368, 378 (Tex. 2011).

6
printed and available to voters as and when required by statute, the contest is moot and

must be dismissed.’” Id. (quoting Polk v. Davidson, 145 Tex. 200, 204, 196 S.W.2d 632, 634

(1946)).

30. The Dallas Court of Appeals has recently held that an action concerning

whether or not a candidate’s name should appear on the primary ballot becomes moot

when the deadline for mailing absentee ballots has passed. In re Meyer, No. 05-16-00063-

CV, 2016 WL 375033, at *5 (Tex. App.—Dallas Feb. 1, 2016, orig. proceeding) (holding

that where the “deadline for the early voting clerk to mail absentee ballots to overseas

voters from whom the clerk has already received applications for ballots by mail or

federal postcard applications” had passed, “any judicial challenge that would require

alteration of the ballot becomes moot”).

31. Early voting by mail began for the Democratic primary election on

January 20, 2018. TEX. ELEC. CODE § 86.004 (West 2010). The Texas Secretary of State’s

2018 election calendar sets January 20, 2018 as the deadline to mail early voting ballots

for the primary election.2 As such, any relief sought with respect to the Democratic

primary is now moot.

RESPONSE TO REQUEST FOR TEMPORARY RESTRAINING ORDER

32. Even if the Court had jurisdiction of this matter, Plaintiffs would not be

entitled to any temporary restraining order (or any other temporary injunctive relief),

2
http://www.sos.state.tx.us/elections/forms/march-primary-election-calendar-2018.pdf (last visited January 22,
2018)

7
because they have failed to plead a viable cause of action or show a probable right to

relief.

33. “The standards for granting a TRO are similar to those for granting a

temporary injunction.” Trove v. Scott, No. 03-99-00118-CV, 1999 WL 546997, at *1 (Tex.

App.—Austin July 29, 1999, no pet.). Temporary injunctive relief is available if the

applicant pleads and proves a “(1) a cause of action against the defendant; (2) a

probable right to the relief sought; and (3) a probable, imminent, and irreparable injury

in the interim.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

34. Plaintiffs have pleaded that only the chair of a county political party has

the authority to accept the application of a candidate to be on the ballot and to certify

the names of those candidates to the Texas Secretary of State.

35. Although Plaintiffs have also pleaded that someone other than Donovan,

the DCDP chair, signed Donovan’s name to Intervenors’ applications, she has not

pleaded that, even if true, such person or persons signed the applications without

authority to do so from Donovan.3

36. While the Election Code requires the county party chair to accept or reject

a candidate’s application, TEX. ELEC. CODE §§ 141.032(e); 172.029(c), it nowhere requires

the chair to sign the application, or any other document, to signify that the chair has

accepted the application. While a place for the chair to sign is on the form promulgated

3At one point Plaintiffs’ amended petition refers to these signatures alleged to be by others as forgeries.
However, the statement that a signature is “a forgery [is] but a legal conclusion,” Turner v. State, 146 Tex.
Crim. 474, 476, 176 S.W.2d 327, 328 (1943) and courts “are not bound by legal conclusions” in pleadings.
City of Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

8
because they have failed to plead a viable cause of action or show a probable right to

relief.

33. “The standards for granting a TRO are similar to those for granting a

temporary injunction.” Trove v. Scott, No. 03-99-00118-CV, 1999 WL 546997, at *1 (Tex.

App.—Austin July 29, 1999, no pet.). Temporary injunctive relief is available if the

applicant pleads and proves a “(1) a cause of action against the defendant; (2) a

probable right to the relief sought; and (3) a probable, imminent, and irreparable injury

in the interim.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

34. Plaintiffs have pleaded that only the chair of a county political party has

the authority to accept the application of a candidate to be on the ballot and to certify

the names of those candidates to the Texas Secretary of State.

35. Although Plaintiffs have also pleaded that someone other than Donovan,

the DCDP chair, signed Donovan’s name to Intervenors’ applications, she has not

pleaded that, even if true, such person or persons signed the applications without

authority to do so from Donovan.3

36. While the Election Code requires the county party chair to accept or reject

a candidate’s application, TEX. ELEC. CODE §§ 141.032(e); 172.029(c), it nowhere requires

the chair to sign the application, or any other document, to signify that the chair has

accepted the application. While a place for the chair to sign is on the form promulgated

3At one point Plaintiffs’ amended petition refers to these signatures alleged to be by others as forgeries.
However, the statement that a signature is “a forgery [is] but a legal conclusion,” Turner v. State, 146 Tex.
Crim. 474, 476, 176 S.W.2d 327, 328 (1943) and courts “are not bound by legal conclusions” in pleadings.
City of Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

8
by the Texas Secretary of State, that part of the form is for the convenience of the chair

and not required by the Election Code. Because the chair’s signature could be omitted

from the application and it would still be in compliance with the Election Code, it is

certainly not a violation of the Election Code for someone to sign the application for the

chair when so authorized.

37. This would still be true even if the Election Code required the party chair

to sign that she had accepted an application. “’The general rule is that the performance

of duties placed upon election officials is directory unless made mandatory by statute.’”

Reese v. Duncan, 80 S.W.3d 650, 657 (Tex. App.—Dallas 2002, pet. denied) (citation

omitted). As such under the rules for applying the Election Code a party chair’s failure

to personally sign the application would not be fatal to a candidate’s application for the

ballot unless the Election Code required this result. Cf. id. at 658 (“’The general rule of

interpretation is that the election laws are to be construed as directory in the absence of

fraud or a mandatory provision which requires the voiding of a ballot for failure to

comply with its provisions.’”) (citation omitted).

38. Indeed, “the legislature has built safeguards into the application process

to allow the candidate every opportunity to have his or her name placed on the ballot.”

In re Ducato, 66 S.W.3d 558, 561 (Tex. App.—Fort Worth 2002, orig. proceeding). This

legislative intent is reflected in the Supreme Court’s adherence “to the principle that we

should construe laws broadly in favor of eligibility” of candidate’s for the ballot due to

the “interest in access to the ballot [that] underlies this doctrine.” Davis v. Taylor, 930

S.W.2d 581, 583 (Tex. 1996) (orig. proceeding). Thus in Davis the Texas Supreme Court

9
held that a candidate was entitled to a place on the ballot even when the party chair

responsible for certifying the candidate’s name had failed to timely submit the

certification as required by the Election Code. Id.

39. Finally, an election official may authorize someone to sign on their behalf

and such signature is as valid as the election official’s own signature. In Ex parte

Scarbrough, 604 S.W.2d 170, 173 (Tex. Crim. App. 1980), the subject of an extradition

warrant signed by the Governor attacked the validity of the warrant on the grounds

that it was not signed by the Governor, but his signature was placed there by someone

else.4

40. The court rejected the challenge, holding that the “fact that the Governor

may have authorized another to place his signature on the warrant would not affect the

validity thereof. The method used in affixing the signature of the Governor on

extradition papers will not affect its validity.” Id. at 173 n.1. Similarly, the fact that

Donovan may have authorized another to place her signature on the candidate’s

application indicating her acceptance of it, a set of facts that is not addressed or

foreclosed by Plaintiffs’ pleadings, in no way states a claim that any candidate was not

properly certified for a place on the 2018 Democratic party primary ballot.

4 The relevant statute provided that if “the Governor decides that the demand [for extradition] should be
complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal and be directed
to any peace officer or other person whom he may think fit to entrust with the execution thereof.” TEX.
CODE CRIM. PROC. art. 51.13, § 7

10
 PRAYER

Based upon the foregoing, Intervenors respectfully request the Court to dismiss

Plaintiffs’ suit for lack of subject-matter jurisdiction, or in the alternative, to deny their

request for a temporary restraining order.

Respectfully submitted,

RAY & WOOD

By: gm
Randall B. Wood
State Bar No. 21905000
Doug W. Ray
State Bar No. 16599200

2700 Bee Caves Road, Suite 200

Austin, Texas 78746
(512) 328-8877 (Telephone)
(512) 328-1156 (Telecopier)
dray@raywoodlaw.com
ATTORNEYS FOR INTERVENORS

11